”Russia violates international law every day, and someone is still against the confiscations.” Belgian lawyer and MP Samuel Cogolati about his plan to confiscate Russian assets and the accompanying fears of Europeans

Author:
Oksana Kovalenko
Editor:
Dmytro Rayevskyi
Date:
”Russia violates international law every day, and someone is still against the confiscations.” Belgian lawyer and MP Samuel Cogolati about his plan to confiscate Russian assets and the accompanying fears of Europeans

samuelcogolati / «Бабель»

On December 1, 2023, Switzerland froze €8.8 billion of Russian assets. Back in 2022, the country joined the European Union sanctions against the Russian Federation, and now it has begun to gradually block Russian money. In total, there are more than €300 billion of frozen Russian assets in the world. But freezing is only half the battle. In order for Ukraine to receive them, the assets must be confiscated. The main country that should develop a confiscation mechanism is Belgium. Because it is there, under the management of the EuroClear financial company, that most of the Russian state assets — €200 billion — are kept. Belgium is already transferring taxes from the interest of these assets to Ukraine. The International Register of Damages Caused by Russian Aggression will start in 2024. European Union Justice Commissioner Didier Reynders said that confiscated private assets owned by sanctioned Russian businessmen should become the main source of compensation for these losses. The situation with the state assets of the Russian Federation is even more complicated, because they are protected by sovereign immunity and, as a general rule, Belgium or any other country has no right to confiscate them. A member of the Belgian Parliament from the Ecolo party, the head of the Committee on International Relations, Samuel Cogolati, says that there is a way out. He came up with a way to legally confiscate state assets not only in Belgium, but also in the EU as a whole. Cogolati is an international lawyer, a graduate of Harvard Law School. At the end of November 2023, Samuel, together with Ukrainian lawyers, organized a conference in Brussels on Russiaʼs responsibility for crimes. Babel correspondent and lawyer Oksana Kovalenko attended this conference and spoke with Cogolati about how to bypass the sovereign immunity of Russian assets, why it is important to do it quickly and what European politicians who oppose confiscations are afraid of. This is Samuel Cogolatiʼs first interview with Ukrainian journalists.

Why is Belgium important when it comes to the confiscation of Russian assets?

Belgium has €200 billion of Russian assets, €197 billion of which belong to the Central Bank of the Russian Federation. All this money is frozen in EuroClear, a clearing house located not far from our parliament. Belgium now collects taxes on the interest accrued on this €197 billion. This is already quite a lot of money, and the government decided to give it to Ukraine. But this is not enough, we must go further! Confiscating assets and returning them to the victims of the war in Ukraine and to restore civilian infrastructure will not only be responsible from a moral point of view, but also legitimate from a legal point of view.

The remaining €3 billion comes from oligarchs and private Russian assets, as well as some goods in transit. For example, luxury cars passed through the port of Antwerp. We also propose to confiscate them. In total, almost €350 billion were frozen in the world — in the USA, Canada and the rest of Europe. But in Belgium it is €200 billion. And Iʼm surprised that most people, even in Belgium, donʼt know about it.

What is the essence of your initiative? How will it help with confiscation?

I submitted my proposal, it is now in the parliament, and will be published officially on the website of the Chamber of Representatives of Belgium in a few days. So, formally, this is our partyʼs proposal for now. We have two main language communities in Belgium: from Flanders and from French-speaking Brussels and Wallonia. But we submitted a proposal together to confiscate Russian frozen assets.

The next level is the EU Council. From the beginning of 2024, Belgium will preside over the European Union. We will be able to make agreements at the European level within the Council with the other 26 EU member states to adopt new European legislation not only on asset freezing but also on confiscation. The European Commission has already proposed to adopt a directive that allows confiscation of assets. But it is about, for example, the assets of the Italian mafia, and not about Russian money. So I propose in my resolution to create a new legal framework so that any EU member state can confiscate assets that have proven links to war crimes, crimes of aggression, etc.

In this resolution, are you proposing changes at the EU level, not just in Belgium?

Thatʼs right, a new basis [for confiscation] must be created. It would be difficult for Belgium to move on its own without European partners. Therefore, it should be a joint decision.

State assets are protected by sovereign immunity. Do you have any idea how to overcome it?

It is true, all state assets of the Russian Central Bank are immune from jurisdiction in Belgium. But there is what we call the "concept of countermeasures." When any state commits a grave international crime, such as the crime of aggression, others must respond with countermeasures.

Russian aggression was recognized by several resolutions of the UN General Assembly. In addition, Russia ignores the orders of the International Court of Justice of the United Nations to stop this aggressive war. That is, Russia violates international law, obligations that we call erga omnes. That is, obligations that concern not only Ukraine, but also the international community in general, and therefore Belgium in particular.

And this opinion is supported today by the majority of legal experts, for example, Philip Sands or Pierre Klein from the University of Brussels. These professors of international law do not ignore the principle of sovereignty.

Chairman of the Verkhovna Rada of Ukraine Ruslan Stefanchuk and Samuel Сogolati.

«Babel'»

And what about private assets?

Court intervention is required here, and a legal basis is required for this.

Did the USA follow this path to seize Malofeevʼs assets ?

Exactly. But our legislation does not provide for confiscation as a form of punishment. I therefore call for this new type of punishment to be introduced in the EU confiscation directive.

That is, you want to make such changes not directly in the legislation of Belgium, but through a directive implemented by other EU members?

Yes, we are obliged to implement this directive in all EU member states. And then the case will first be in law enforcement agencies, then they will turn to the court, and he will make a decision. But we are only at an early stage of the initiative. And our goal is to move as quickly as possible. We cannot waste years on legal discussions. If there are other experts who will suggest more effective legal ways to confiscate these assets and return them to the Ukrainian people, I will be glad.

How does it all happen in practice?

In parliaments, everything takes time. That is why I want to open the debate now. Formally, we will hold a discussion in the Committee on International Relations, which I head. We will most likely start with a hearing and seek written advice from legal experts. We have to find a consensus among the majority of political parties. And then we need to move on at the European level.

Do you have support among the deputies?

Things arenʼt simple here. There is broad support for confiscation in general terms. But the devil is in the details. And when we start discussing sovereign immunity or the financial reputation of Belgium, the task becomes more difficult. I will honestly say that conservative circles would prefer to refrain from confiscating Russian assets.

Why?

They fear that Russia might do the same to our assets in retaliation. And also — that other states may decide that European countries, such as Belgium, are no longer safe for state assets. And they will look for other places to invest and store them. Therefore, there should be a political discussion. In politics, it is necessary to balance between different interests. Ukraine is entering the second winter of the war, the civilian population is suffering, Russia is attacking civilian infrastructure, not just military facilities. And we have to act. Seizure and freezing of assets is not enough. And it seems a little paradoxical to me that Russia violates international law every day, and someone is against confiscations, because international law allegedly does not allow them.

Do you have legal answers for those who are afraid to start a confiscation?

Yes, and the good news is that we have extensive legal support. And I want there to be a debate so that legal experts can explain everything publicly and convince our colleagues. We also want to seek advice from experts who are critical. Everyone can ask a question. Now it is important that the parliament makes up its mind during the debate. You need to be brave!

And what should happen after the debate? Only the Chamber of Representatives has to agree, or the Senate too?

The Senate does not participate in this, only the Chamber. The first step is to adopt it in the parliamentary committee. And this is the most important thing. Because the parties behave in the same way in the committee and then in the plenary session. So, if it is supported in the committee, it will be voted on at the meeting.

Samuel Cogolati.

«Babel'»

And how long can it take?

Not less than two months. If there are complications, it can take four to five months. But since we have elections in June, it must be done by this time.

Well, for example, everything will work out for you in Belgium. And then, letʼs say, Hungary will not be able to block the confiscation mechanism at the EU level?

This is a vote in the Council of the EU by a majority vote, so Hungary will not have any right of veto here.

Why did you decide to actively support Ukraine?

You have to decide whose side you are on. There is an aggressor and there is a victim. Russia is the aggressor. The Ukrainian people are innocent people who became victims of a terrible crime of aggression. Putin attacks not only the Ukrainian people, but also democratic values and your choice in favor of the European family and freedom. And that is why it is our duty to protect the Ukrainian people. Both as a member of parliament and as an environmentalist, I feel that it is my duty to find all possible ways to help Ukrainians. We accepted many refugees from Ukraine, in particular in my city. We also provide military assistance. You have heard about the F-16 pilot training that Belgium will be conducting. But this is not enough.

Therefore, we need to look for other ways. In the past, I have actively advocated to stop and ban the import of Russian diamonds into Antwerp. This is also a lot of money. I want to show the Belgian people, my people, in particular in my constituency, that this is not only a problem of a distant foreign country. We also adopted an important resolution on the recognition of the Wagnerʼs PMC as a terrorist organization.

And the last question. The G7, along with the United States, do not support the idea of a special tribunal for Russian crimes. They support the idea of a hybrid tribunal. What does Belgium say about it and what do you think?

Belgium supports international justice. We believe that there will be no lasting peace without the prosecution of war criminals. Belgium financially supports the ICC, which investigates these crimes, and sends its investigators to Ukraine to collect evidence.

Personally, I believe that it is possible to create a special tribunal through the UN General Assembly. My suggestion is not to act through the UN Security Council — we know that is impossible. However, through the General Assembly, we can pass a resolution to establish an international tribunal to prosecute the crime of aggression.

Translated from Ukrainian by Anton Semyzhenko.

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Author:
Oksana Kovalenko
Editor:
Dmytro Rayevskyi

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