Since Russia’s invasion of Ukraine, £18 billion of assets belonging to Russian individuals have been frozen under the UK’s Russia sanctions regime, 1 and €19 billion has been frozen by the European Union. 2 One year on from the start of the invasion, governments are grappling with what to do with the vast amounts of frozen wealth within their jurisdictions. 3 This article explores law reform that can enable frozen assets to be confiscated and repurposed for the benefit of victims and survivors of the invasion. 4 It considers avenues of repurposing within the context of the right to reparations, which includes financial compensation, entrenched in international human rights and international humanitarian law. 5
For decades, Europe has been a safe haven for global dirty money. 6 Wealth amassed by Russian oligarchs and kleptocrats has been funnelled through complex tax structures, intermediaries and enablers, into luxury properties, yachts, private jets, and offshore bank accounts. 7 The ongoing conflict in Ukraine and its devastating impact on the Ukrainian people has brought this issue to the forefront of public and political debate. The people of Ukraine have been victims of a range of international crimes, including summary executions, indiscriminate shelling, sexual violence, and looting of civilian property. 8 The world is considering how to stop the war, ensure accountability for the crimes committed, and provide reparations for victims. 9
Under international law, victims of gross human rights violations and serious violations of international humanitarian law are entitled to reparations. 10 Despite this right, there remain considerable gaps in the payment of reparations to victims. Individual judgments frequently fail to address adequate reparations or damages to repair the harm caused by abuses, compliance is patchy where reparations are awarded, and victims are largely left to rely upon the generosity of donors and state trust funds that are often underfunded. 11
Targeted sanctions, which are imposed on individuals and entities, rather than States or entire economic sectors, have been imposed by governments around the world in response to the invasion of Ukraine. 12 They are used to freeze the assets of the sanctioned individual or entity within the sanctioning jurisdiction and / or prevent the sanctioned person from traveling to that jurisdiction. Any national of the sanctioning State is also prohibited from dealing financially with the sanctioned person. These restrictions aim to deter individuals from continuing violations and provide a form of accountability for past violations. Even in cases where an individual has no known assets in the sanctioning jurisdiction and does not intend to travel there, the signalling of international condemnation of their actions can lead to behaviour change.
While the sanctions regimes are an important first step in providing accountability for Russian aggression, they fall short of providing redress for victims. Assets frozen through sanctions currently cannot be repurposed as reparations. They are unable to be used by the targeted individual until a decision is made to either unfreeze them or a license is granted to use them. In practice, this means that assets can remain frozen indefinitely. Existing legislation is largely ill-equipped to pass ownership of frozen assets to the sanctioning government, allowing it to liquidate those assets and repurpose the proceeds as reparations. New laws are needed to make the jump from freezing to confiscation in order to address the dual problems of illicit wealth and the delivery of practical reparations for victims and survivors of conflict.
1- Existing Mechanisms for Targeting Illicit Wealth
1-1 Targeted Sanctions
Numerous jurisdictions, including the EU and UK, have adopted targeted sanctions regimes in order to meet specific foreign policy or national security objectives. 13 Sanctions regimes are either thematic, such as the Magnitsky sanctions regimes that are designed to combat violations of international human rights law and corruption, or geographic, such as the Russia regulations, 14 which have been used to sanction oligarchs and others supporting Putin’s regime and the war.
Targeted sanctions are a foreign policy tool rather than a judicial accountability mechanism, with the primary objectives of encouraging behavioural change in the sanctioned individuals and providing a form of accountability, rather than acting as a punishment per se. Current sanctions regulations do not allow for the confiscation of frozen assets, and as a result, these assets can sit untouched in the sanctioning jurisdiction for years—leading to waste and loss of any potential benefit for victims. One example is the £9 million mansion in London of former Libyan dictator Muammar Qaddafi’s son, which was seized after he was sanctioned by the UK in 2012. 15 A decade on, the property is falling apart and efforts to liquidate the home and have the proceeds returned to the Libyan people have been fraught. 16 Similarly, in continental Europe, governments are struggling to keep up with the expensive maintenance of frozen Russian superyachts. 17 This provides a concerning picture for the future of the swath of Russian luxury assets that have been frozen under sanctions if changes to legislation are not made. 18 Confiscation and repurposing mechanisms that complement existing targeted sanctions regimes are needed to ensure that opportunities to use frozen assets as reparations for victims are not wasted.
2-2 Asset Confiscation Measures
Outside of the sanctions context, some existing mechanisms within the EU and UK law enable asset confiscation. However, each is limited in their application, making them ill-equipped to tackle the issue at hand.
Conviction-based confiscation allows for the proceeds of crime to be confiscated following a trial or guilty plea. For convictions involving human rights violations, such as torture, crimes against humanity, genocide and war crimes, where an individual is found guilty, courts can make compensation or confiscation orders that allow victims to be financially compensated for injury, loss or damage that results from the offense. In these cases, the monetary damages payments do not target specific assets related to the violation, but the individual perpetrator. 19
For corruption convictions involving embezzlement of State funds, the proceeds of the corrupt acts are repatriated to the country of origin rather than as compensation to individual victims. 20 Asset repatriation can be complicated, as illustrated in the case of Vice President Nguema Obiang of Equatorial Guinea. Assets belonging to Obiang valued at more than US$200 million have been forfeited or confiscated in the context of criminal proceedings in Switzerland, 21 the US, 22 and France. 23 The respective governments are grappling with how to return the wealth to the people of Equatorial Guinea where the notoriously corrupt regime which stole the assets initially remains in power. In a similar case, following the conviction of Syrian president Bashar Al Assad’s uncle for money laundering, French authorities are looking to liquidate his luxury properties and return the proceeds to victims of the civil war in Syria. 24
While conviction-based confiscation mechanisms may be effective in select examples, they pose distinct challenges in enabling reparations for victims. In particular, in order to obtain a conviction, the submitted evidence needs to meet the evidentiary standard under criminal law. Meeting this highest standard of proof is particularly challenging in the corruption context, which relies on extensive and complicated investigations, which can be slow and resource intensive. Further, because confiscated proceeds of corruption are repatriated, rather than repurposed as reparations, 25 in the context of Ukraine, authorities may prioritise the return of confiscated proceeds of Russian corruption to the Russian people, rather than to victims in Ukraine.
Non-Conviction Based Confiscations
Non-conviction based (‘NCB’) confiscation provides a more effective avenue for confiscation as it benefits from a lower evidentiary threshold. However, in the context of international law violations and human rights abuses, these mechanisms are still limited in their ability to provide redress to victims.
NCB confiscation generally allows government authorities to confiscate assets where it can be proven that they are obtained through unlawful conduct. 26 Where wealth builds off historic corruption or its origin is hidden behind complex financial structures, this can be difficult to prove. The UK has tried to address this by introducing Unexplained Wealth Orders (‘UWOs’). 27 When certain conditions are met, a UWO can be attached to any property in the UK, shifting the burden of proof by requiring the owner to evidence that the property was legitimately acquired. Should that person fail to respond, the property is presumed to have been obtained through illegal activity—allowing confiscation through civil recovery proceedings. 28 This ambitious legislation, however, has been largely ineffective in tackling grand corruption. In assessing UWOs, UK courts have accepted the law of the country where the corrupt acts took place. 29 This means that those who retain power or influence in their home countries can simply appeal to domestic law enforcement to confirm that their income is lawful for a UWO to be dismissed. 30 Further, where an individual provides an ostensibly legitimate explanation, the enforcement agency then has to disprove that explanation in order to succeed in civil recovery, where the standard of proof is higher—thus returning to the challenges that UWOs were designed to alleviate. 31 Bringing UWO cases can also be extremely costly for enforcement agencies—an additional hurdle for resource constrained departments. 32 Given these challenges, unless there is legal reform to existing UWO provisions in the UK, these mechanisms will remain a weak tool against kleptocracy.
Italy has adopted a slightly more flexible approach to UWOs, through the Anti-Mafia Code, which unlike the UK regime, attaches to a person rather than property. 33 The Italian legislation enables prosecutors to bring administrative seizure and confiscation claims against persons involved in criminal associations and does not require their assets to be proceeds of criminal conduct. Confiscated funds can be used to compensate victims of mafia-type crimes. 34 The European Court of Human Rights has held that these measures are compliant with the rights to property 35 and a fair trial 36 under the European Convention on Human Rights (‘ECHR’). 37
Switzerland has taken a different approach to combating kleptocracy. The 2016 Foreign Illicit Assets Act allows assets of foreign corrupt officials or their close associates to be frozen, confiscated, and repatriated to their country of origin via administrative proceedings. 38 However, the Act can be applied only in very narrow circumstances in the context of regime change. It is only available following an MLA request from the country of origin. Thus, where a perpetrator or their allies remain in power, the Swiss law is essentially unusable. Additionally, the law only enables the repatriation of assets to the country of origin, rather than repurposing assets for the benefit of victims no matter which country they are in—limiting the law’s ability to provide meaningful redress in situations that have resulted in displacement.
While existing NCB confiscation mechanisms have been successful in some cases of corruption, there are several challenges that limit their effectiveness in the case of frozen Russian assets. Russian assets that are products of corruption have often been amassed over decades and syphoned into apparently legitimate enterprises, making it easier for a sanctioned individual to provide a valid explanation for their wealth that enforcement agencies will then have to disprove to succeed in a civil recovery action. 39 Often assets are well-hidden behind complex structures, making it difficult to identify whether a sanctioned individual is in fact the real owner for confiscation purposes. 40 Moreover, where domestic NCB mechanisms require that confiscated assets be derived from unlawful conduct, human rights or international humanitarian law violations are not always included within the definitions of unlawful conduct. 41 More broadly, it is extremely difficult for enforcement agencies to prove that assets are the direct proceeds of human rights abuses because such illicit wealth is often gained within a wider context of corrupt and abusive conduct.
2- A Way Forward: From Freezing to Confiscation
To respond to the current limitations in the law, various proposals are being developed to ensure victims’ right to reparation can be fulfilled.
2-1 Expanding Proceeds of Crime Laws
Proceeds of Crime laws could be expanded to enable the confiscation of assets obtained through gross violations of human rights, including genocide, war crimes and crimes against humanity. Some existing NCB confiscation laws are also limited in the types of actors they reach. For example, the assets of ‘family members’ of ‘politically exposed persons’ can be captured within the UK’s Proceed of Crimes Act 2022, 42 but this is limited to ‘parents, spouses (and equivalent of spouses), children and their spouses.’ This definition is too narrow and does not reflect the reality of how politically exposed persons distribute and conceal their wealth. 43
2-2 Expanding Sanctions Evasion Laws
Expanding sanctions evasion laws may also provide viable avenues for confiscation and subsequent reparations. The EU has criminalised sanctions violations, enabling proceeds of such violations to be confiscated. 44 Building on this directive, there are proposals from civil society to introduce a new duty on designated persons to disclose all assets held in the sanctioning jurisdiction, and to criminalise the failure to disclose as a form of sanctions evasion. This duty would expand the scope of conduct that constitutes sanctions evasion so that undisclosed frozen assets could be recoverable as proceeds of that evasion. 45
In addition, there are also proposals to establish mechanisms to divert monetary penalties received by governments following sanctions breaches related to human rights law and international humanitarian law into a fund specifically dedicated to providing reparations to victims (as opposed to the current structure of having such penalties placed in a consolidated fund that is used for general purposes of the sanctioning government). 46
These proposals can provide effective near-term solutions to help fill the gaps between asset freezing and confiscation. While there is existing momentum in the EU to expand sanctions evasion laws, such measures are also limited as they require a qualifying sanctions breach and therefore only target a limited subset of individuals and assets which are currently subject to sanctions.
2-3 New Laws: From Freezing to Confiscation
The Canadian Approach
In June 2022, Canada became the first country to pass legislation that enables direct confiscation and repurposing of assets frozen under sanctions. 47 Under the law, proceeds from liquidated confiscated property can be used to compensate victims; aid in the reconstruction of a foreign state affected by a grave breach of international security; or restore international peace or security.
The Canadian law is the most ambitious model for asset repurposing that has been adopted to date. However, it is unclear whether it would meet the due process and right to property protections required in some jurisdictions. The law includes some protections for the sanctions target, including access to a petition for delisting and judicial review. Yet, the threshold for asset confiscation is low, which may raise due process concerns. 48
The ability of Canada’s law to withstand fundamental rights challenges will likely soon be tested. In December 2022, the Canadian government announced that it will seize and pursue forfeiture of US $26 million from a company owned by sanctioned Russian oligarch Roman Abramovich. This is the first time that Canada will use the legislation to pursue confiscation, and if successful the proceeds will be provided for the reconstruction of Ukraine and compensation to victims of the invasion. 49
A Novel Human Rights Compliant Approach to Asset Confiscation
A novel approach to confiscating and repurposing sanctioned assets needs to balance the aspirations of swift repurposing with the requirements of the ECHR, including the right to property under Article 1 of Protocol 1. The right to property is a fundamental right but it is not absolute, meaning it can be weighed against other interests. 50 In the current legislative and political landscape, the balance is weighted too far in favour of the right to property at the expense of victims’ rights to reparation. The novel approach seeks to address this.
Traditionally, NCB confiscation laws have required a nexus between assets and violations, which, as explained above, can be difficult to prove. The novel approach aims to tip that balance towards victims by instead requiring a link between the sanctioned person, the violations, and the victims who are owed reparations under international law. To ensure that this legal ground can be relied upon without violating the ECHR, there need to be numerous safeguards, including evidence that the individual has been involved in the violations, 51 opportunities for the involved person to challenge the sanctions designation and confiscation proceedings at every stage of the process, and a requirement that Courts assess whether the confiscation is proportionate in line with ECHR standards. Including comprehensive due process provisions would help to guard against the inherent risk in sanctions that, as a political tool, they may be abused by governments and imposed inappropriately. 52
Once the relevant property has been confiscated, a government appointed trustee would have the power to administer the funds and ensure that they are delivered to victims of the violations as reparations.
This novel approach to confiscation aims to secure reparations for victims of the most serious breaches of international law in a manner that also respects the rights of the individual perpetrator, while aiming to deter and hold them accountable for their conduct.
3- Delivering Reparations: Mechanisms to Ensure Effective Repurposing of Confiscated Assets
The legal basis for confiscating frozen assets is the first step in this burgeoning area of law. Once frozen assets have been seized, jurisdictions must tackle how to effectively deliver funds to victims and survivors.
An initial challenge in designing reparations programmes is determining who is eligible for the scheme, in essence, defining the victim group. Reparations programmes risk excluding groups from receiving benefits if the eligibility criteria, often the basis of categories of violations giving rise to ‘victim status’, are narrowly defined. 53 Thus, victim participation from the outset is critical in ensuring that a reparations programme is inclusive and effective. 54 The case-law of international and regional courts can provide insight into determining the mechanics of reparations delivery. Courts have considered how to define harm caused to victims, how to establish a causal link between the violation and harm caused, and how to calculate compensation for victims. In making these determinations, it is essential that victims of human rights violations are able to fully participate in all proceedings. 55 Where available funds are insufficient to provide reparations for all victims, States may consider voluntary donations to fill the reparations gap.
Another key consideration is whether reparations will be delivered on an individual or collective basis. While individual reparations respond to harm suffered by individual persons, collective reparations focus on delivering benefits to groups of victims that have suffered harm and are bound by a common identity, experience, or form of violation. 56 Collective reparations may address, for example, the gender-based aspect of individual violations, or violations affecting the entire population of an area. Collective reparations may be privileged in situations where it is difficult to draw a stark line between victims and non-victims, or where there is limited capacity to implement individual reparations. At the same time, however, individual victims may resist them because they do not respond to the often intimate, individual nature of human rights violations and victims’ suffering. It is also possible for collective reparations to be used for political gain and for reparations programs to become confused with development policies that recipient communities are already entitled to.
With these considerations in mind, in the context of the Russian invasion of Ukraine, existing reparations delivery mechanisms, particularly trust funds, may provide models for delivering confiscated assets to victims of the conflict. The ICC’s Trust Fund for Victims (‘TFV’) currently collects funds through voluntary contributions by State Parties and is designed to benefit victims of crimes under the Court’s jurisdiction. 57 Contributions can be earmarked for specific situations. The Global Survivor’s Fund, a civil society organisation that aims to enhance access to reparations for survivors of conflict-related sexual violence (‘CRSV’), currently has a memorandum of understanding with the Ukrainian government to implement a reparations programme for Ukrainian survivors of CRSV. 58 Confiscating jurisdictions could deposit funds from liquidated assets into reputable trust funds to ensure reparations are delivered by those with the necessary expertise.
At present, there is an unparalleled opportunity in Europe to mobilise the vast amounts of illicit Russian wealth that sits frozen on the streets of London, in the bays of Southern Europe, and across the continent’s financial institutions, to redress harm for victims in Ukraine. States should use all legal tools available to achieve this. Developing a novel legal basis for confiscation of frozen assets will strengthen opportunities to actualise the right to reparations for victims of the invasion. However, for these novel legal approaches to be successful they must be human rights compliant, and States must ensure that the delivery of reparations is victim centred.
- Figure as of 20 October 2022 under the Russia regulations, OFSI annual review, p. 7, available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1116689/OFSI_Annual_Review_2021-22_10.11.22.pdf.
- Figure as of 30 November 2022, https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7311.
- See eg, https://www.congress.gov/bill/117th-congress/house-bill/6930/text; https://www.canada.ca/en/global-affairs/news/2022/12/canada-starts-first-process-to-seize-and-pursue-the-forfeiture-of-assets-of-sanctioned-russian-oligarch.html. See also https://news.un.org/en/story/2022/11/1130587.
- This article specifically looks at money belonging to individuals, derived from human rights violations or corruption, and not state money/ assets. On this question, see the contributions in this volume by Régis Bismuth and Anton Moiseienko.
- Article 8 of the Universal Declaration of Human Rights (‘UDHR’); Article 2 of the International Covenant on Civil and Political Rights (‘ICCPR’); Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’); Article 24 of the International Convention for the Protection of All Persons from Enforced Disappearances (‘ICPPED’); Article 14 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘UNCAT’); Article 75 of the Rome Statute of the International Criminal Court (‘Rome Statute’); Article 3 of the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land (‘Hague Convention (IV)’); and Rule 150 of ICRC Customary International Humanitarian Law.
- A. B. Guardia, ‘The world’s dirty money by the numbers’, Politico, 19 May 2020 (available at: https://www.politico.eu/article/the-world-dirty-money-by-the-numbers/)
- See eg, ‘Why is London so attractive to tainted foreign money?’, The Economist, 7 May 2022 (available at: https://www.economist.com/britain/why-is-london-so-attractive-to-tainted-foreign-money/21809124); ‘Western nations face a challenge seizing property from Russian oligarchs’, France 24, 7 March 2022 (available at: https://www.france24.com/en/europe/20220307-western-nations-face-a-challenge-seizing-property-from-russian-oligarchs); ‘UK is ‘top destination’ for Russians looking to hide dirty money in property’, OpenDemocracy, 25 February 2022 (available at: https://www.opendemocracy.net/en/dark-money-investigations/uk-top-destination-for-russians-to-hide-dirty-money-in-property/).
- See eg, ‘Ukraine: Apparent War Crimes in Russia-Controlled Areas’, Human Rights Watch, 3 April 2022 (available at: https://www.hrw.org/news/2022/04/03/ukraine-apparent-war-crimes-russia-controlled-areas).
- See eg, UN GA Resolution A/RES/ES-11/5, Furtherance of remedy and reparation for aggression against Ukraine, available at: https://digitallibrary.un.org/record/3994481?ln=en.
- UN Basic Principles of the Right to a Remedy and Reparation for Serious Violations of International Human Rights Law and Gross Violations of International Humanitarian Law, Article VII (available at: https://www.ohchr.org/en/professionalinterest/pages/remedyandreparation.aspx).
- For example, awards totaling approximately US $300 million have been issued in favor of victims of torture and other abuses perpetrated by the regime of Hissène Habré in Chad. Yet these victims have so far been paid none of this sum. Similarly, an award of more than $2 billion for 10,000 victims of the regime of former Philippine President Ferdinand Marcos has yet to be satisfied by Marcos’ estate. See REDRESS Framework for Financial Accountability, page 5 (available at: https://redress.org/wp-content/uploads/2021/03/Financial-Accountability-for-Torture.pdf).
- https://www.gov.uk/government/collections/uk-sanctions-on-russia; https://www.consilium.europa.eu/en/policies/sanctions/restrictive-measures-against-russia-over-ukraine/; https://home.treasury.gov/policy-issues/financial-sanctions/sanctions-programs-and-country-information/ukraine-russia-related-sanctions; https://www.international.gc.ca/world-monde/issues_development-enjeux_developpement/response_conflict-reponse_conflits/crisis-crises/ukraine-sanctions.aspx?lang=eng#:~:text=Canada%20is%20imposing%20sanctions%20against%206%20entities%20involved%20in%20gross,Ukraine%20and%20anti%2Ddemocratic%20policies.; https://www.dfat.gov.au/international-relations/security/sanctions/sanctions-regimes/russia-sanctions-regime#:~:text=Australia%20imposes%20autonomous%20sanctions%20in,extended%20in%202015%20and%202022..
- For example, the aim of the EU targeted sanctions regime related to the independence and territorial integrity of Ukraine is to ‘impose severe consequences on Russia for its actions and to effectively thwart Russian abilities to continue the aggression.’ See https://www.consilium.europa.eu/en/policies/sanctions/restrictive-measures-against-russia-over-ukraine/sanctions-against-russia-explained/. The purpose of the UK’s Global Human Rights Sanctions Regime is to ‘deter, and provide accountability’ for specified human rights violations. See GHRS Regulations (2020), Section 4(1), https://www.legislation.gov.uk/uksi/2020/680/regulation/4.
- The UK Russia (Sanctions) (EU Exit) Regulations 2019, available at: https://www.legislation.gov.uk/uksi/2019/855/contents.
- ‘£10m house in expensive London suburb recovered by Libya’, Global Witness (available at: https://www.globalwitness.org/en/archive/10m-house-expensive-london-suburb-recovered-libya/).
- Paul Peachey, ‘Libya’s rotting London mansion and the mystery of the missing Qaddafi billions’, The National News, 1 February 2022 (available at: https://www.thenationalnews.com/world/uk-news/2022/02/01/libyas-rotting-mansion-and-the-mystery-of-the-60bn-qaddafi-fortune/).
- Stephen Beard, ‘Floating liabilities: Western authorities grapple with the cost of seizing oligarchs’ superyachts’, Marketplace, 19 May 2022 (available at: https://www.marketplace.org/2022/05/19/floating-liabilities-western-authorities-grapple-with-the-cost-of-seizing-oligarchs-superyachts/).
- Jack Sidders, ‘Top London Properties Owned By Russian Oligarchs Are Frozen in Time’, Bloomberg, 30 November 2022, (available at: https://www.bloomberg.com/graphics/2022-sanctioned-properties-in-london/).
- For example, in the UK, compensation orders are permitted under POCA Section 130 of the Powers of Criminal Courts (Sentencing Act) 2000/ Chapter 2 of the Sentencing Act, and confiscation orders are permitted under Section 6 of the Proceeds of Crime Act 2002.
- In accordance with Article 57 of the UN Convention Against Corruption.
- Agence France Presse, ‘Swiss to auction 25 supercars seized from son of Equatorial Guinea dictator’ The Guardian, 29 September 2019 (available at: https://www.theguardian.com/world/2019/sep/29/swiss-to-auction-25-supercars-seized-from-son-of-equatorial-guinea-dictator); ‘Geneva closes graft case against Obiang’s son, confiscates 25 luxury cars’, Reuters, 7 February 2019 (available at: https://www.reuters.com/article/us-equatorial-swiss-court-idUSKCN1PW2K2).
- US Department of Justice, ‘$26.6 Million In Allegedly Illicit Proceeds to Be Used To Fight COVID-19 and Address Medical Needs in Equatorial Guinea’, 20 September 2021 (available at: https://www.justice.gov/opa/pr/266-million-allegedly-illicit-proceeds-be-used-fight-covid-19-and-address-medical-needs).
- ‘France: Equatorial Guinea Vice President’s Conviction Upheld’, Human Rights Watch, 28 July 2021 (available at: https://www.hrw.org/news/2021/07/28/france-equatorial-guinea-vice-presidents-conviction-upheld); ‘France Adopts New Provision for Returning Stolen Assets and Proceeds of Crime: A Step Forward With Room for Improvement’, Transparence International, 3 March 2021 (available at: https://www.transparency.org/en/press/france-adopts-new-provision-for-returning-stolen-assets-and-proceeds-of-crime-a-step-forward-with-room-for-improvement); Sara Brimbeuf, ‘The ill-gotten gains of corruption: a possible French model for restitution’, Medium, 27 April 2021 (available at: https://medium.com/u4-anti-corruption-resource-centre/ill-gotten-gains-of-corruption-french-model-restitution-932a7452baaa).
- Paul Peachey and Sunniva Rose, ‘Frozen, the disputed European property empire of Rifaat Al Assad’, The National News, 23 November 2021 (available at: https://www.thenationalnews.com/world/uk-news/2021/11/23/frozen-the-disputed-european-property-empire-of-rifaat-al-assad/).
- For more information on reparations in international law, see for example, UN CAT General Comment No.3, available at: https://www2.ohchr.org/english/bodies/cat/docs/gc/cat-c-gc-3_en.pdf.
- See, for example, Part 5 of the UK’s Proceeds of Crimes Act 2002. Sec. 73 et seq of the German Criminal Code allows for assets to be confiscated in certain cases even if the owner has not been convicted of an underlying offense, if there is sufficient evidence to show that the assets are connected to criminal activity. See also Title 18 U.S.C. Chapter 46 on civil forfeiture procedures in the US.
- Criminal Finances Act of 2017.
- Criminal Finances Act of 2017.; https://ace.globalintegrity.org/wp-content/uploads/2022/03/CriminalityNotwithstanding.pdf.
- The Criminal Finances Act 2017. Section 362B.6(c) states that income is ‘lawfully obtained’ if it is obtained lawfully under the laws of the country from where the income arises.
- See NCA v. Baker (See Ms Justice Lang’s comments in her Judgment, para 77. Available at https://www.judiciary.uk/wp-content/uploads/2020/04/Approved-Judgment-NCA-vBaker-Ors.pdf, accessed 10 February 2022. See page 45 and footnote 215 for information on the lack of independence of the Kazakh Prosecutor’s office); https://ace.globalintegrity.org/wp-content/uploads/2022/03/CriminalityNotwithstanding.pdf, p.19.
- Tom Mayne and John Heathershaw, ‘Criminality Notwithstanding. The Use of Unexplained Wealth Orders in Anti-corruption Cases’, ACE Power Briefs, March 2022 (available at: https://ace.globalintegrity.org/wp-content/uploads/2022/03/CriminalityNotwithstanding.pdf), p. 20-21.
- Id., p. 23; Sean O’Neill, ‘£1.5m legal bill forces rethink over McMafia wealth orders’, July 13 2020 (available at: https://www.thetimes.co.uk/article/1-5m-legal-bill-forces-rethink-over-mcmafia-wealth-orders-x02gc8s23).
- Legislative Decree 159/2011 (Anti-Mafia Code).
- REDRESS, ‘Briefing: Comparative Laws for Confiscating and Repurposing Russian Oligarch Assets’ (available at: https://redress.org/wp-content/uploads/2022/09/Briefing-on-Comparative-Laws.pdf).
- Article 1, Protocol 1, European Convention of Human Rights.
- Article 6 European Convention of Human Rights.
- The Court specifically noted that the interference with the right to property is proportionate to the legitimate aims pursued, States have a wide margin of appreciation when addressing problems which affect the public interest, and the procedures set out in the law respect the right of the defence to be heard and to appeal. Raimondo v. Italy, European Court of Human Rights, (Application no. 12954/87), Judgement, 22 February 1994, Arcuri & Three Others v. Italy, European Court of Human Rights, (Application no. 52024/99), Decision, 5 July 2001.See also REDRESS Briefing (p.4-5): REDRESS, ‘Briefing: Comparative Laws for Confiscating and Repurposing Russian Oligarch Assets’.
- Open-ended Intergovernmental Working Group on Asset Recovery, ‘Foreign Illicit Assets Act (FIAA) of 18 December 2015’, 16 August 2016 (available at: https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/workinggroup2/2016-August-25-26/V1605154e.pdf).
- Tom Mayne and John Heathershaw, op. cit., p. 20-21; Maria Nizzero, ‘From Freeze to Seize: Dealing with Oligarchs’ Assets in the UK’, Rusi, 13 April 2022 (available at: https://rusi.org/explore-our-research/publications/commentary/freeze-seize-dealing-oligarchs-assets-uk).
- Robert Smith et al., ‘‘Not my yacht’ — how murky structures cloud ownership of oligarch toys’, Financial Times, 5 Apriul 2022 (available at: https://www.ft.com/content/2a5abdec-1bd1-4a5c-99a6-5aa1fc722d1b).
- See eg, Part 5 Proceeds of Crimes Act 2002, section 241A ‘gross human rights abuse or violation’ provides that the confiscation provisions are only applicable in very narrow circumstances of human rights abuses.
- Section 362B(7)-(8)(b) of POCA by reference to Article 3 of Directive 2015/849/EU of the European Parliament and of the Council of 20 May 2014.
- For example, the UK sanctioned Russian Foreign Minister Sergey Lavrov’s ‘stepdaughter’ who owns a £4 million luxury apartment in London. However, under the existing provisions of POCA, these assets would not be subject to the Act’s NCB confiscation measures. Will Taylor, ‘Lavrov’s stepdaughter Polina Kovaleva among new Russian sanctions’, Leading Britain’s Conversation, 24 March 2022 (available at: https://www.lbc.co.uk/news/lavrov-stepdaughter-sanctioned-london/).
- European Commission, ‘Confiscation and asset recovery’ (available at: https://home-affairs.ec.europa.eu/policies/internal-security/organised-crime-and-human-trafficking/confiscation-and-asset-recovery_en); Anna Pingen, ‘Commission Proposes Directive on Asset Recovery and Confiscation’, Eucrim, 27 July 2022 (available at: https://eucrim.eu/news/commission-proposes-directive-on-asset-recovery-and-confiscation/#:~:text=With%20the%20proposed%20directive%20on,crime%20groups%20can%20be%20covered).
- Tom Keatinge and Maria Nizzero, ‘From Freeze to Seize: Creativity and Nuance is Needed’, Rusi, 7 June 2022 (available at: https://rusi.org/explore-our-research/publications/commentary/freeze-seize-creativity-and-nuance-needed); Maria Nizzero, ‘From Freeze to Seize: How the UK Can Break the Deadlock on Asset Recovery’, Rusi, 10 October 2022 (available at: https://rusi.org/explore-our-research/publications/commentary/freeze-seize-how-uk-can-break-deadlock-asset-recovery); Maria Nizzero, ‘Sanctioned oligarchs should have to list their UK assets’, The Times, 23 February 2023 (available at: https://www.thetimes.co.uk/article/sanctioned-oligarchs-should-have-to-list-their-uk-assets-lqprkw3fs).
- Hogan Lovells, ‘Finance for Restorative Justice. Using sanctions and terrorist financing legislation to fund reparations for victims of sexual violence in conflict’, January 2020 (available at: https://www.hoganlovells.com/-/media/hogan-lovells/pdf/2020-pdfs/2020_01_29_rethinking-reparations-report.pdf).
- The C-19 budget implementation Act received royal asset on 23 June 2022. The Act amends the 1992 Special Economic Measures Act (SEMA) and the 2017 Justice for Victims of Corrupt Foreign Officials Act (Magnitsky Act) creating new powers to confiscate and sell-off assets owned by individuals and entities on Canada’s sanctions list. See https://www.parl.ca/legisinfo/en/bill/44-1/c-19.
- REDRESS, op. cit.
- Government of Canada, ‘Canada starts first process to seize and pursue the forfeiture of assets of sanctioned Russian oligarch’ (news release available at: https://www.canada.ca/en/global-affairs/news/2022/12/canada-starts-first-process-to-seize-and-pursue-the-forfeiture-of-assets-of-sanctioned-russian-oligarch.html).
- Article 1 of Protocol 1(2) states: ‘The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’ Thus, the text of Article 1 of Protocol 1 itself allows States to limit this fundamental right where such restriction is necessary to achieve a legitimate public interest.
- ‘Involvement’ would need to be defined more narrowly than in most sanctions legislation, to include, for example those who are responsible for or engaged in violations; facilitate violations; knowingly provide financial services, funds, economic resources, good or technology which will or may contribute to the violations; knowingly profit or benefit from the violations; or intentionally failed to fulfil their responsibility to investigate or prosecute the violations.
- For example, following the September 11 terrorist attacks in the United States, numerous individuals were designated under terrorism-related sanctions regimes based on extremely limited evidence. Within this context, experts have warned against ‘sacrificing individual freedoms and human rights for a sense of security.’ See ‘Leiden professor petitions UN to release Guantanamo prisoner’, 23 August 2021 (available at: https://www.universiteitleiden.nl/en/news/2021/08/leiden-professor-petitions-un-to-release-guantanamo-prisoner); see also Helen Duffy, Dignity Denied: The Abu Zubaydah Case Study, Human Dignity and Human Security in Times of Terrorism, April 2020 (available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3562402). For asset repurposing models to be effective and human rights compliant, they must be utilised in an ECHR compliant manner, no matter the political context in which they are deployed.
Office of the UN High Commissioner for Human Rights, ‘Rule-of-Law Tools for Post-Conflict States. Reparations programmes’, 2008 (available at: https://www.ohchr.org/sites/default/files/Documents/Publications/ReparationsProgrammes.pdf), p. 15-16; see also International Center for Transitional Justice, ‘From Principles to Practice. Challenges of Implementing Reparationsfor Massive Violations in Colombia’, October 2015 (available at: https://www.ictj.org/sites/default/files/ICTJ_Report_ColombiaReparationsChallenges_2015.pdf), p.3-4.
- Reparations application forms and victim registries are an important part of the process of identifying verifying and registering those entitled to reparations. For more information on victims registration programmes, see: https://www.ictj.org/sites/default/files/ICTJ_Guide_ReparationsForms_2017_Full.pdf.
- Amicus Curiae brief pursuant to article 75 of the Statute and Rule 103 of the Rules of Procedure and Evidence, The Prosecutor v. Dominic Ongwen (available at: https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2022_00811.PDF).
- Magarrell, Lisa, Reparations in Theory and Practice, Reparative Justice Series (International Center for Transitional Justice, 2007) 5-6.
- International Criminal Court, ‘Trust Fund for Victims. Background Summary’, August 2008 (available at: https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/E582AE21-D718-4798-97ED-C6C9F0D9B42D/0/TFV_Background_Summary_Eng.pdf).
- Global Survivors Fund, ‘Ukraine Sets a World Precedent: Moving forward on holistic care and urgent interim reparation for survivors of CRSV’, 28 October 2022 (press release available at: https://www.globalsurvivorsfund.org/media/ukraine-sets-a-world-precedent-moving-forward-on-holistic-care-and-urgent-interim-reparation-for-survivors-of-crsv).
Leanna Burnard, Mira Naseer, Sanction. Confiscate. Compensate. How Russian Money Can Be Repurposed as Reparations for Ukrainian Victims, Jun 2023,
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