Opinion: How to make Russia pay for invading Ukraine

Photo/Emile Ducke/The New York Times / A Russian tank destroyed by Ukrainian forces late last year during a battle to retake the town of Sviatohirsk, eastern Ukraine is seen on July 31, 2023. “Since Russias invasion in February 2022, the United States and our democratic partners have frozen roughly $300 billion in Russian central bank assets, amounting to a little less than half of the Kremlins foreign currency and gold reserves,” writes New York Times columnist Bret Stephens.

Volodymyr Zelenskyy visited Washington this week to give thanks to the United States for its generosity — while asking for $24 billion more, which is what the Biden administration is seeking from Congress in additional military and humanitarian aid to Ukraine. That will bring the total amount of American aid to $135 billion — $223 million a day since the war began, according to one calculation.

Maybe it's time to open a new funding source before American largess runs out — from Russia.

Since Russia's invasion of Ukraine in February 2022, the United States and our democratic partners have frozen roughly $300 billion in Russian central bank assets, amounting to a little less than half of the Kremlin's foreign currency and gold reserves. Some of us have been arguing ever since that the money should be transferred to Ukraine as a matter of justice and as a deterrent against this kind of aggression.

So far, the Biden administration has disagreed. "It would not be legal now in the United States for the government to seize" Russia's assets, Treasury Secretary Janet Yellen said in May 2022.

But those objections are themselves flimsy. A carefully argued and exhaustively researched 184-page report circulated this week among journalists, government officials and NGO leaders by the Renew Democracy Initiative shows why.

The report's lead author is Harvard's Larry Tribe, a liberal law professor with whom I disagree about many things — but not about this. (Full disclosure: I helped start the Renew Democracy Initiative six years ago and I sit on its advisory board, but I had no hand in this report.) The report's central conclusion is that the president has ample authority, under the 1977 International Emergency Economic Powers Act, or IEEPA, to transfer Russia's frozen assets to Ukraine.

"IEEPA plainly states that the president can 'investigate,' 'block,' 'regulate,' 'direct and compel,' 'nullify,' 'void' and 'prevent or prohibit'" the conveyance of property from one entity to another, Tribe and his colleagues write. "Those powers address conveyances of 'any right, power or privilege' with respect to property that a foreign country has an interest in and that is subject to the jurisdiction of the United States." Past presidents have used this authority before: George H.W. Bush froze Iraq's assets in the United States after its invasion of Kuwait, and ultimately transferred them to the United Nations Compensation Commission for victims of Saddam Hussein's aggression.

What about Russia's "sovereign immunity," the legal doctrine that a state is immune from the judgments or penalties of foreign courts? It's irrelevant. "There is simply no basis for saying Russia can violate Ukraine's sovereignty while invoking its own sovereignty as an inviolable shield," Tribe wrote me in an email.

There is a well established doctrine in international law, Tribe's report notes, of "countermeasures," actions that might otherwise violate international law but are lawful "because the action is taken against another state for an internationally wrongful act." The principle is simple: Violators of international law don't get a veto over the penalties for their violations.

Another argument is that the Rubicon has already been crossed. So why not get on with it now, when additional funding could hasten Ukraine's victory, help its people under fire, and send a potent message to the Kremlin and other would-be aggressors that the financial price of invasion is as countable as it is steep?

The Biden administration has compiled a record of doing right by Ukraine — but generally comes around to it a bit late. Helping to defeat Russia with Russia's own money is vital to that effort. The moral logic is compelling. The legal case is clear. The political moment is now.