Special Economic Measures Act
Bill to Amend--Second Reading--Debate Adjourned
October 17, 2023
Moved second reading of Bill S-278, An Act to amend the Special Economic Measures Act (disposal of foreign state assets).
She said: Honourable senators, I rise today to speak on Bill S-278, An Act to amend the Special Economic Measures Act, also known as SEMA. The bill before you seeks to amend SEMA to allow for a legal mechanism to seize and repurpose the state assets of perpetrators who breach international peace and security and to redirect those assets to the victims whose lives have been shattered.
The invasion of Ukraine by Russia provides a clear context for this proposal. Russia has launched an unnecessary, illegal and brutal war. It has destroyed the lives and livelihoods of hundreds of thousands of people — fathers, brothers, mothers, sisters and children have been lost. Cities have been reduced to rubble, and infrastructure has been bombed. People have been captured and tortured, and, still, there is no end in sight.
But perhaps the worst crime of all is the wilful kidnapping of thousands of children. As per The Globe and Mail:
In the summer of 2022, Russia began a co-ordinated program to bring children — particularly those living in orphanages and foster homes — from across the occupied areas of Ukraine to summer camps in Russia, hundreds of kilometres away.
These children have not been returned to their parents in Ukraine, but instead have been put up for adoption in Russia. This is so heinous a crime that the International Criminal Court has subsequently issued arrest warrants for Mr. Putin and for his Commissioner for Children’s Rights, Ms. Lvova-Belova.
Just this past week, we have seen with horror the brutal attack of Hamas in Israel. Although there is no proof that Russia supplied weapons to Hamas, we know that Russia supports it. Just last March, for instance, Russia hosted in Moscow a delegation of Hamas leadership, and, further, Russia has yet to condemn Hamas for its brutality. So we see, yet again, that Russia desires chaos. It desires to destabilize the world and the rules-based order as we know it.
For these and many other reasons, we must hold rogue actors like Russia to account, but we must do so by carving out a legal pathway. It is difficult to quantify the misery of Ukraine in dollars and cents, but the World Bank has estimated the cost of war at US$600 billion.
Ukraine itself estimates that it requires $7 billion a month in aid, and these figures keep growing exponentially as Russia refuses to end its military operations and continues to target both the civilian population and the civilian infrastructure in breach of the orders of the International Court of Justice and the European Court of Human Rights decisions made in March of 2022.
Whilst the war is ongoing, the international community is mostly united in its condemnation of Russia’s aggression and support for rebuilding Ukraine. On November 14, 2022, the United Nations General Assembly passed Resolution ES-11/5, recognizing that under international law, Russia will owe Ukraine reparations at the end of the war.
However, given Russia’s total failure to comply with any international court orders so far, it is unlikely that Russia will comply with any future judgments that award reparations to Ukraine, and even if these payments were negotiated at some point in the future, Ukraine needs the money now. This is why timing matters. Funds to repair ongoing damage must be found now, before the damage to Ukraine’s economy and its people becomes irreversible, meaning that Russia wins even if it loses the war.
I remind senators of my previous bill, the frozen assets repurposing act. The spirit of that bill was adopted by the government in its Budget Implementation Act, 2022.
Its principles and the principles of this legislation are the same. They are, first, that this is an illegal war that Russia has waged, and, therefore, Russia must be held accountable. Second, Russia must pay for the misery and damage it has wilfully wrought. Third, Russia must pay now and not at some vague point in the future.
As a result of the previous legislation, which was adopted by Canada, Canada is now legally able to seize the frozen assets of corrupt foreign officials and non-state entities and repurpose them to alleviate the suffering of the people who have been harmed. The government is using this power now to seize the assets of Russian oligarchs. In December of last year, as per the new authority granted to it by law, the Minister of Foreign Affairs moved to seize and pursue the forfeiture of $26 million from Granite Capital Holdings Ltd, a corporation belonging to Roman Abramovich, and is pursuing the forfeiture of his assets through the sanctions outlined in SEMA.
In February of this year, the federal government moved to confiscate the Antonov-124 aircraft, the Russian cargo aircraft owned by a subsidiary of the Volga-Dnepr Airlines and Volga‑Dnepr Group. This aircraft was grounded at Toronto Pearson international airport at the start of the war and is currently still parked on the runway.
As the law intended, these cases are now before the courts to provide for due process to these private assets. If forfeited, these assets can be used to provide necessary funds to help the victims of Russian aggression and to hold the perpetrators to account.
However, as we all well know in this chamber, the devil is always in the details of legislation. So whilst the new law applies and is being applied to oligarch assets, it gets ensnared in other legislation when it comes to the confiscation, seizure and forfeiture of state assets located in Canada.
State assets, particularly central bank assets, are where the big money lies, the big money that is required to rebuild Ukraine. Since the war, roughly $300 billion of Russian state assets have been frozen by various G7 jurisdictions. You will want to know the value of Russian state assets held in Canada today. At the end of 2021, just before Russia launched its war, the sum value of its assets in Canada was $16 billion, which far outstrips, by the way, the sum value of Russian oligarch assets in Canada. But in a pre‑emptive move, I imagine, Russia removed $16 billion of its assets from Canada to Belgium, where they now lie frozen.
I am not able to say with certainty what the remaining value of Russian state assets in Canada now is. I have heard that it is likely negligible, and you may well ask, “Why bother, then?” Whether it is $1 or $16 billion, the principles and objective of my bill still apply, and they are as follows: to create a legal avenue for Canada to seize state assets and, more importantly, to create a legal precedent that can be followed by other like-minded jurisdictions.
This move is urgent. As you likely know, the biggest supporter of Ukraine in absolute dollar terms — the United States — is facing a political challenge in continuing its support of Ukraine through tax dollars. Opposition to Ukraine aid appears to have become a litmus test for some on the far right. The New York Times states that the isolationist views of hard-line Republicans argue that:
. . . sending tens of billions of dollars to Kyiv [in Ukraine] risks dragging the United States into a head-on conflict with Russia and siphons money away from domestic challenges. . . .
The presidential election in the U.S. at the end of 2024 will be a watershed moment — not just for the U.S. or us, but especially for Ukraine.
As we also know, this sentiment may not just be confined to the U.S. as populist nationalism is witnessing a resurgence in many parts of the world. Therefore, the passage of this bill, which has the rich state assets of Russia as its target, will be watched carefully by others who would wish to continue their support for Ukraine, but may be challenged by domestic realities to find new sources of funding for it.
The $300 billion of frozen state assets of Russia is a source for such funding, but frozen assets are technically not good to anyone because they are frozen. They are immobilized. In June of this year, the British government announced that it will keep Russian funds immobilized until Russia compensates Ukraine. The European Union, or EU, has also announced that it will do the same, but might transfer the profits earned on Russian funds to Ukraine.
But, at best, these are mere half measures. They simply leave these assets in permanent limbo — useless to all. Unless a nation is bold enough, or courageous enough, to take the first step of asset seizure, these assets will likely remain frozen long after the war is over.
Because Canada likely only has a small amount of Russian state assets, we also have a unique opportunity to reach for a low‑risk yet high-impact opportunity to set the pace so that others follow. Being the first nation to do so puts us in an extraordinary position of global leadership by explaining the international rationale and the domestic pathway to do so.
That was the intent of the first seizure and forfeiture law I proposed, which has since been adopted into law. Since Canada’s bold move, others have gathered around it.
Obviously, Ukraine has its own legislation covering Russian state assets, but legislation has been proposed in the U.K. in both houses of Parliament. The EU has set up a freeze and seize task force, and the European Parliament has passed a resolution that calls on Russia to provide war reparations to Ukraine, arguing that frozen Russian assets should be legally confiscated in accordance with international law.
In the U.S., Congress has passed amendments to allow for the sale and process of assets from sanctioned Russian oligarchs and entities supporting Putin to be used for the benefit of the Ukrainian people. Estonia is the first member of the EU to table domestic legislation to seize and repurpose Russian oligarch assets for the benefit of Ukraine.
As I had hoped, this Canadian rolling stone is gathering much moss. This is a unique and timely example of middle power Canada charting the way forward so that others follow.
But the way forward has thrown up a challenge; let me call it a mechanical challenge of a legal kind. As we know, there are limitations that impact how Canada and any other state can treat the property of another state, whether that property is assets in banks, real estate or others. The principle of sovereign immunity is a precedent under international law, which stipulates that “. . . one sovereign state cannot be sued before the courts of another sovereign state without its consent.”
Specifically in Canada, the State Immunity Act governs this principle. It states that “. . . a foreign state is immune from the jurisdiction of any court in Canada.” This means that if the Canadian government were to commence judicial proceedings to confiscate a foreign state’s asset, the relevant foreign state would be able to claim its immunity from such proceedings on the basis that no Canadian court has any jurisdiction to adjudicate in any proceedings involving a foreign state, thereby blocking any attempt by the court to make an order as regards its state property.
On the surface, it would appear that this prevents the implementation of the seizure and repurposing of Russian state assets because they are of a sovereign nature.
The current regime under the Special Economic Measures Act, or SEMA, allows for the seizure and repurposing of assets through the courts. I think we all agree that assets owned by individuals or non-state entities must have due process before the state takes them away. This is a fundamental principle in Canada.
However, because this process goes through the courts, Russian state assets are excluded from seizure and repurposing because of sovereign immunity laws.
Recognizing this hurdle, legal experts in Canada, including former Attorney General Allan Rock and noted academic Rob Currie, as well as legal experts outside of Canada, including Jamison Firestone, Tetyana Nesterchuk, Laurence Tribe and Yuliya Ziskina, pointed to a different route, which is presented in this proposal.
Whilst the State Immunity Act limits court action against another state, its reach does not extend to executive actions, such as cabinet orders. As such, state assets are shielded from legal proceedings in court, but they are not shielded from executive actions. The bill before you amends SEMA to allow for the confiscation of state assets by executive action, thereby creating two paths for seizure: one through the courts for individual assets, and another through executive action by the Governor-in-Council. Think of it as two highways with the same destination, but different routes.
Clause 5.41 of the bill says the Governor-in-Council may, by order, have any property that is the subject of an order made under paragraph 4(1)(b) and that is owned — or that is held or controlled directly or indirectly — by a foreign state to be forfeited to His Majesty in right of Canada.
Inserting this language specifically gives the authority of the government to seize and forfeit assets held by a foreign state. To ensure that SEMA follows actions that don’t infringe on the State Immunity Act, the act is amended by adding the following after subsection 5.4(1):
(1.1) An order made under subsection (1) cannot relate to property that is owned, held or controlled, directly or indirectly, by a foreign state.
Colleagues, this clause would take the court process out of the seizing and forfeiture of state assets and leave it to executive action if, and only if, the underlying conditions under SEMA have been met. In other words, there must be a breach of international peace and security and/or gross human rights violations.
To be clear, SEMA already provides for the seizure of state assets, but the mechanism is flawed. This bill simply provides for amending the legal mechanism so that the law can fulfill its stated purposes, should Canada choose to seize and repurpose sovereign state assets.
Some will argue that this is a breach of international conventions — that one state cannot simply seize the assets of another state in its jurisdiction — and yet there is no real dispute that Russia has breached international law by its illegal invasion of Ukraine. Authors Allan Rock, Rob Currie and Fen Hampson — in their paper titled “Leading by Example” — argue that state-on-state armed attacks tops the list of breaches of pre‑emptory norms, and are a direct violation of international law. Refraining from aggressive war is a core rule of international law. They go on to say:
. . . given that we are asking questions about international law breaches, it is essential to focus on the direct violation of international law that gives rise to all of this: Russia’s invasion of Ukraine. . . .
The United Nations General Assembly in its Resolution ES-11/1 in March 2022 deplored “. . . in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2(4) of the Charter . . . .” — it’s the article which is said to be the cornerstone of the UN Charter. That resolution was supported by 141 nations, with only 5 voting against it, and you will guess right: Russia, Belarus, North Korea, Syria and Eritrea.
In a Washington Post opinion piece, three prominent U.S. thought leaders — Lawrence Summers, former Secretary of the Treasury and former president of Harvard University; Philip Zelikow; and Robert Zoellick, former president of the World Bank — argue that the roughly $300 billion of Russian central bank assets could legitimately be repurposed for the reconstruction of Ukraine because:
Those who hold Russian assets are entitled, under the international law of state countermeasures for a grave breach of international law, to cancel their obligations to the Russian state and apply Russian state funds to what Russia owes.
Given this, they go further and suggest that Canada and other like-minded states are not only permitted to act against Russian aggression but are, in fact, obliged to do so.
In addition, Article 41 of the articles on Responsibility of States for Internationally Wrongful Acts confirms that Canada and others can invoke countermeasures as provided for in Chapter 11 of this agreement.
The principle behind countermeasures is that a state, in this case Canada, can suspend an obligation it has under international law in a way that is intended to bring the offending state back into compliance with international legal obligation. In this case, it is Russia’s breach with the invasion of Ukraine and its failure to compensate for the devastation it has caused. If it is a valid countermeasure, then seizure of state assets in itself is not a breach of international law. Quite the opposite: It is a valid and lawful response to Russia’s breach of fundamental norms of forbidding one state from mounting an armed attack on another.
There is precedent for this kind of action. As lawyers Jamison Firestone, Tetyana Nesterchuk and Yuliya Ziskina argue:
. . . the most applicable countermeasures precedent is the transfer of Iraqi state funds during the Gulf War in 1992. After Iraq invaded Kuwait in 1990, former U.S. President George Bush issued an October 1992 executive order “directing and compelling” every U.S. bank holding Iraqi state funds to transfer them to the Federal Reserve Bank of New York in compliance with a U.N. resolution that called for the compensation of the victims of that aggression. The executive order “authorized, directed, and compelled” the Federal Reserve Bank of New York to receive these funds and to “hold, invest, or transfer” them to serve the purposes of the U.N. resolution.
Countermeasures have been used by Canada. For example, after the invasion of Afghanistan by the U.S.S.R., Canada suspended Soviet fishing rights in its exclusive economic zone. Canada again suspended landing rights for the Soviet Aeroflot after the shooting down of a Korean Air Lines passenger plane in 1983. Canada again used countermeasures against the apartheid regime of South Africa, and used them again in the 1990s in the conflict in Serbia.
No doubt this proposal sets a precedent, but, if it does so, then it sets a positive one. The norms against aggression, war crimes and genocide are currently being tested to a degree the world has rarely seen. If states considering similar acts of aggression see that their conduct would be met with swift and severe consequences, such as the seizure of their sovereign assets, then they are far more likely to think once, twice and many more times before taking a step.
In short, if Canada and other Western states want to face fewer crises like the one facing Ukraine, then we should send the unmistakable message to the international community that Russia’s conduct will not be tolerated. Hesitation and appeasement only send aggression-encouraging signals. I believe that the world’s appeasement of Russia after its invasion of Crimea in 2014 was misplaced, as we all know now.
I grant that seizing state assets, including central bank assets, is an extraordinary move. These are, however, extraordinary times. If we do not demonstrate resolve, if we fail to act in legal ways to hold Russia accountable, then we will likely open the door for other rogue nations with territorial ambitions to act with impunity.
This proposal, therefore, uses domestic law in accordance with international law mechanisms as a deterrent. It upholds the rule of law in the international legal order.
Russia cannot hide behind international law because it has broken every tenet of it. Laurence Tribe, who is likely the foremost constitutional scholar in the U.S., writes:
It would be a cruel irony to deny Ukraine the funds it needs by invoking respect for Russia’s “sovereignty” and “property rights” when Russia has chosen to trample on [those] of the Ukrainian people.
Now to turn to what Russia is doing in this sphere, in April of 2023 Putin signed a decree allowing Russia to expropriate property from unfriendly countries — basically any country that has placed sanctions against it, of course, including Canada, the U.S., the U.K., all EU countries, Japan and South Korea.
On September 23, when President Zelenskyy was visiting Canada, Canada and Ukraine agreed to create a G7 task force on the seizure and forfeiture of Russian state assets. The bill before you today will provide a way forward for those efforts. The government of Ukraine supports this measure.
Iryna Mudra, the Deputy Minister of Justice for Ukraine, writes:
The Ukrainian government sees Russian sovereign assets as the key source of compensation for victims of Russia’s illegal war and we are very grateful to Canada for taking the lead on this important issue and setting a clear precedent for other nations to follow.
Colleagues, the bill before you today holds Russia to account. It creates a legal pathway for Canada and others who will follow us to use Russian state assets to compensate Ukraine. It does so in a manner that is sensitive to the needs of Ukraine today and not at some future time. It gives expression to the sentiments of President Zelenskyy in our Parliament last month when he stated that Canada stands out as a “bright” light to the rest of the world. Let us be that light and shine not just through our aspirations but through our actions.
It is also a warning light to other bad actors. Although I have spoken primarily in the context of Russia and Ukraine, the proposal will amend SEMA in general, which would allow for similar actions against other bad state actors that perpetuate mass crimes. I hope that is clear. It does not mention Russia or Ukraine in the amendments.
Before I close, I wish to thank my many advisers who have helped me in navigating these tricky waters. They are academics, foreign policy experts, international lawyers from Canada, the U.S., the U.K. and Ukraine. I call them my brain trust, because I know it takes a village to raise a legislative child, especially when that child is a private bill.
On their behalf, and on behalf of the many victims of the Russian war in Ukraine, I ask for your support. Thank you.
Senator Omidvar, I have a couple of questions for you. First of all, as one of 1.4 million Ukrainian Canadians, I want these Russian assets to be quickly and properly seized so that those assets cannot be used to finance Putin’s illegal and brutal war against Ukraine. Could you briefly explain what this bill does that the government legislation you referenced, that was passed in the recent Budget Implementation Act, does not do?
Thank you, Senator Batters, for that question. The bill creates a legal mechanism that would allow the Government of Canada to seize Russian state assets. As I said, there are technically now two rules: one through the court for individual assets and one through executive action. The existing State Immunity Act provides immunity from Canadian courts to all foreign states.
It’s a clarification, I would say, to the proposal that has already been accepted by the Government of Canada.
In your speech tonight you referenced that Russian assets in Canada were thought to be “negligible.” I’m just wondering what basis you have to say that, because I thought that that wasn’t the case. It seems like every so often, when we hear about potential oligarch assets in Canada, we hear that there have been, thus far, relatively limited real results produced by actions taken by Canada’s government.
I actually thought that very little had been seized thus far in Canada. Why do you think that there is just a negligible amount left?
Thank you, Senator Batters. In December of 2021, just before Russia invaded Ukraine, according to the public accounts of Russia, state bank assets totalling $16 billion were located in Canada. Russia subsequently removed $16 billion to Belgium in, as I said, likely a pre-emptive move. This is all public information that I had gleaned.
What I don’t know is if they’ve got anything left outside of, maybe, their embassy here.
Senator Omidvar, would you take a question?
Definitely. Thank you, senator.
Your speech is very timely given that we’ve just received the response from the foreign minister on the sanctions from the Magnitsky study, one of the findings of which you may recall is that the efficacy of our sanctions regime, particularly autonomous sanctions, including Magnitsky and some of the others you have described, have not been proven. We’re not clear that sanctions actually make a difference, based on the objectives that were set for sanctions — changing behaviour and so on.
I’m very supportive of the idea of war reparations along the lines of what happened after the Second World War. I’m not so sure about your proposal.
I’ll give you a preamble before I ask my question, but it sounds to me that while we talk about the importance of upholding international law, what you’re proposing essentially is executive power to override accepted international law, which strikes me as undermining a principled stand on the importance of upholding international law.
The reality of central bank assets is that most of them — about 70% — are held in U.S. dollars, maybe 20% to 30% in euros, the balance in Japanese yen and perhaps a few other small currencies, and a small amount in gold, which means that most of the foreign assets of any central bank will be held in the United States.
That gives me pause when you talk about how we should set the example. Not for us, because there really are very few central bank assets held in Canada. It gives me pause as to what kind of message and lesson, to use your term, we are passing to the United States, which has used its power to seize central bank assets in ways that are perhaps less edifying than you would present.
The Iraq example is not particularly encouraging when you think about how subsequent events in Iraq have unfolded and how the money could have been used for reconstruction. The example of Afghanistan is particularly discouraging, because the assets of the bank have been seized essentially to pay Americans off for the World Trade Center.
What leads you to think that this example, which really will be mostly for the Americans, will be used in a way that, in fact, respects international law and which promotes peace and comity in our world rather than more conflict?
Thank you, Senator Woo. I’m trying to locate the question. Forgive me for trying to locate it.
Your first question is whether this is against international norms. I’m simply going to repeat what people far wiser than me have said. Again, Laurence Tribe, a well-known U.S. constitutional lawyer, said that Russia cannot hide behind international norms when it is breaking every one of them itself.
On the question that we are doing this so that the U.S. will follow, we all know that the U.S. system is “executive-order-happy,” if I may use that term. They tend to use it at many times.
Our proposal is different because even if it is executive action that generates the seizure of assets, it has to be grounded in the conditions of SEMA — the Special Economic Measures Act; those two conditions have to be met. There has to be a breach of international peace and security, and there have to be gross human rights violations.
The proposal that is being considered in the U.S. actually mirrors this proposal and anchors executive action — seizure of state assets — in domestic law. We’re a step ahead of them, if I may say, because that is precisely what we are doing. It is not cowboy, willy-nilly executive action. It is executive action based on certain conditions and criteria.
I hope I located your question.
If I could then ask the question more specifically, which I think I did at the very end, what gives you the confidence that our American friends, who will be the principal users of this example you’ve set, will, in fact, use this tool with Canada as the cover, as setting the example? Because we’re not going to use this; this is not principally for Canada.
What gives you the confidence that they will not use it in a way that, in fact, violates international law and harms the prospects of countries simply because they have a political disagreement with those countries?
I hope that question is very clear this time.
It is very clear. If the U.S. follows our example and anchors their legislation on state asset seizure in domestic law, as we are doing, then we will have set the right path.
How would you imagine that the Americans will follow our example in setting a law when they are the pre‑eminent power in the world?
The U.S. will be part of this task force that the Deputy Prime Minister has created. Legal scholars, academics and former officials will be on it. I’m not going to pre‑empt what the U.S. is going to do.
By the way, Senator Woo, I think this bill is not just aimed at the U.S. There are other nations that have frozen Russian state bank assets, including the U.K. and Japan. Europe is definitely not low-hanging fruit because of their position in the region and their dependency on Russia for all kinds of things. I don’t really believe it’s just the U.S. It is others as well.
As I said, a Canadian rolling stone can gather moss.
Honourable senators, I rise today to speak in support of Bill S-278, An Act to amend the Special Economic Measures Act (disposal of foreign state assets). Since Senator Omidvar has done a great job of addressing the legal issues, including answering interesting questions related to this legislation, I will focus my remarks on some of the costs of Russia’s illegal, unprovoked and genocidal war on Ukraine and how Russian state assets currently frozen and available can now be used to help offset these costs.
On February 24, 2022, Russia invaded Ukraine, an unprovoked, illegal act of genocidal violence upon a sovereign nation that was the biggest attack on a European country since World War II. This was followed by immediate and heroic resistance from the Ukrainian people. Against all odds and to the surprise of many nations, the offence of the much-vaunted Russian army ground to a halt, stopped by the Ukrainian people who would not accept defeat and who used all they had to mobilize and defend themselves. We all remember the iconic images of Ukrainian tractors pulling captured Russian tanks.
Canada immediately condemned this unprovoked and egregious attack by Russia on Ukraine as a violation of Ukraine’s sovereignty and territorial integrity and a violation of Russia’s obligations under international law and the Charter of the United Nations. Other nations for whom the upholding of the international rule of law was paramount also issued their own condemnations of this illegal attack.
As Senator Omidvar has pointed out, human rights and international law are cornerstones for the anchoring of her bill, so let’s turn to human rights.
The United Nations, with Resolution ES-11/3 on April 7, 2022, removed the membership of Russia in the UN Human Rights Council over:
. . . grave concern at the ongoing human rights and humanitarian crisis in Ukraine . . . including gross and systematic violations and abuses of human rights . . . .
And it demanded that Russia withdraw its forces from Ukraine. On the human rights, on the international law, the UN General Assembly Resolution ES-11/4 was passed on October 12, 2022. It noted that the annexation of Donetsk, Kherson, Luhansk and Zaporizhzhia oblasts by Russia were “. . . invalid and illegal under international law” and demanded that Russia “. . . immediately, completely and unconditionally withdraw . . . ” from Ukraine as it is violating its territorial integrity and sovereignty.
As part of the Western world’s response to the Russian genocidal invasion and the ongoing war of Ukrainian resistance that followed and still continues, the G7 countries initiated numerous sanctions against Russia and, consistent with international law, decided to freeze Russian assets held within their jurisdictions. On October of this year, the G7 announced that these assets — so far estimated at around US$300 billion — will remain frozen until Moscow pays war reparations to Ukraine.
This announcement came soon after Belgium announced that it will collect around 2.3 billion euros in taxes on frozen Russian state assets in 2023 and 2024 held within its jurisdiction and will use that money to help aid Ukraine with both military and humanitarian support. Belgium moved independently of the European Union to undertake this initiative since it is applying its own national tax code to the frozen assets.
According to the Bloomberg story on this situation:
. . . the EU, along with Group of Seven nations, are still discussing a plan to tax the profits generated from immobilized Russian sovereign assets and funnel the revenue to Kyiv.
On Wednesday, US Treasury Secretary Janet Yellen backed the idea, calling it a “reasonable proposal” that is distinct from actually seizing the cash.
Commenting on this action, President Zelenskyy noted that “Belgium has become the first country to start using frozen Russian assets to support protection from Russian terror.”
On October 12, soon after the Belgian announcement, the Estonian government approved a draft law that, if passed by parliament, would allow many immobilized Russian assets to be transferred to Ukraine.
Colleagues, the Western world is being reminded of the horrific global costs of terror and the need to move vigorously to defend the values that underlie the international rue of law. In Ukraine, we have witnessed an imperialistic power — Russia — launch an unprovoked, illegal and genocidal war on a peaceful, sovereign state.
More recently, we have watched in horror as a terrorist organization slaughtered hundreds of innocent civilians and then used its own people as human shields against retaliation. History has often noted that evil, when left unaddressed, ends in tragedy. We have a responsibility to do our part to respond vigorously and to do our best to avert the tragic consequences of inaction.
I thank Senator Omidvar for, through this legislation, providing us with an opportunity to do our part.
Honourable senators, the human, social and financial costs of this war on Ukraine and its peoples are huge. They include costs incurred fighting the war as well as the social, humanitarian and critical infrastructure costs needed to maintain life and an ongoing economy now. In addition, there will be the future costs for rebuilding.
Rebuilding Ukraine and helping its people recover is expected to cost hundreds of billions of dollars, potentially exceeding US$1 trillion, depending on how long the war lasts, its intensity and its geographic spread.
There is also the cost to the mental health of children, families and combatants that may never be properly calculated. Colleagues, how do we cost an amount of money needed to compensate innocent people for the human losses that they have suffered and will continue to suffer, even after the war is over?
The phrase “when the war is over” means that Ukraine will have prevailed since if Ukraine wins the war, there will be no more war, but if Russia wins the war, there will be no more Ukraine. There is an immediate need for more arms for Ukraine — not just to fight to a stalemate, but to achieve victory. Additionally, there is also an immediate need to rebuild critical infrastructure destroyed by Russia — hospitals, roads, bridges, schools, housing, energy supply, water supply and much more. The Ukrainian government says it needs some $14 billion to fund critical infrastructure rebuilding projects in this year alone.
There are other costs to war. Environmental costs, for example. A Washington Post article of March 13, 2023, noted that, so far, the war on Ukraine has led to more than $51 billion worth of environmental damage. As far as I can understand the numbers, this environmental damage cost is in addition to the almost unfathomable sums I have just shared with you.
We know that extraordinary amounts of money have been pledged from many countries to assist Ukraine. The Council on Foreign Relations, in September 2023, reported that since the war began, the Biden administration and the U.S. Congress have directed more than US$75 billion in assistance to Ukraine.
Europe has in total given a similar amount as has the U.S., about US$72 billion.
On July 11, 2023, the CBC reported that Canada has committed more than $8 billion to Ukraine since Russia’s February invasion, including over $1.5 billion in military aid.
Where is this money, so desperately needed to fend off a force that threatens the very existence of any international rule of law, coming from? From the taxpayers of the countries invested in maintaining the rule of law and the values that underpin the international order. While this is not an unreasonable ask, it does promote the kind of negative, anti-Ukraine sentiment that we have recently seen on full display in some sections of our society, in our cousins to the south and, sadly, emerging here in Canada as well.
Is it not reasonable to ask that Russia, the aggressor in this conflict, pay? And why should it not start paying now?
The governments of the United States, Australia, Canada, France, Germany, Italy, Japan, the United Kingdom and the European Commission have seized roughly $300 billion in Russian central bank assets not long after Russia’s invasion of Ukraine. Most of this money, more than $200 billion, is frozen in European accounts. These governments have also seized tens of billions of dollars in assets belonging to Russian oligarchs and private entities.
The G7 governments agree with the UN that Russia is perpetuating an illegal war of aggression and that Moscow should be held responsible for footing the reconstruction bill. Experts in international law and international relations also agree.
Writing in Foreign Affairs, former U.S. treasury secretary Lawrence Summers, former U.S. diplomat Philip Zelikow and former World Bank president Robert Zoellick note:
Because the [United Nations] has established that Russia gravely breached the norms of international law and that this breach is a matter of common international concern, it has given member states standing to act. And it has established that Russia has a duty to compensate the states injured by its aggression.
Lloyd Axworthy, a name known to all in this chamber, recently put it quite simply. I’ll quote from an article in The Globe and Mail where he said:
It’s a Robin Hood proposition. . . . You take from the Sheriff of Nottingham who was putting people in jail, and you give it to the people who were affected by this.
The same article in The Globe and Mail in June 2023 noted that according to the RCMP, as of February, about $135 million of assets in Canada has been frozen as a result of sanctions imposed on Russia. Should that money now not be made available to augment the $8 billion that Canada has already pledged? Should that money not be made available now to help Ukraine’s military fight and its people have access to hospitals, clean water, heat and light?
Colleagues, I, for one, think it should.
With the passage of Bill S-278, Canada will go one better than Belgium. Canada will go one better than the suggestion of using the interest from these funds to support Ukraine. Instead of just taking the profits from these Russian assets, why not take the principal as well?
The entire principal amounts currently frozen are already owed to Ukraine under international law. Not using this money now deprives Ukraine of the funds that they need to survive the upcoming winter, which will likely see furious Russian attacks on the infrastructure needed to support civilian life.
Ukraine also needs the funds to purchase the armaments it so desperately needs to end this war as quickly as possible, thus saving the lives and livelihoods of countless of its citizens.
Colleagues, let’s not forget that helping Ukraine goes well beyond investing in its freedom and repairing the ravages of war. It is also a statement and an investment in the necessity of maintaining the international rule of law, for the fight in Ukraine is not just about Ukraine. It is about how this world will evolve: into a place of freedom and justice or a place of unfettered violence and fear.
That is why I will support Senator Omidvar’s bill, and I urge you to do the same as well. Let’s get it to committee and well studied and over to the other place as soon as possible. D’akuju. Thank you. Wela’lioq.
Honourable senators, I rise today in support of Senator Omidvar’s timely bill, Bill S-278, An Act to amend the Special Economic Measures Act (disposal of foreign state assets).
This important bill would amend SEMA to allow for a legal pathway to seize and repurpose the state assets, including central bank reserves, of perpetrators that breach international peace and security and, specifically, to seize these assets without a judicial order. These assets can then be redirected to the victims who have suffered at the hands of these perpetrators.
I commend Senator Omidvar for her far-sighted leadership in advancing this legislation. This bill rests on the belief that foreign leaders and nations who violate international human rights through violence or oppression or corruption or war must be held accountable for their actions, and that asset forfeiture can be a powerful option to help achieve this and to assist the victims of these terrible actions.
In 2021, Senator Omidvar’s Senate public bill, Bill S-217, achieved all-party support and passed the Senate committee stage. In June of 2022, in response to Russia’s invasion of Ukraine, the government essentially incorporated her initiative into its own legislation as part of the budget bill. Bill C-19 thus allowed the government to go beyond freezing the assets of corrupt foreign officials by permitting them to be seized and redirected to the victims of persecution and oppression.
As currently drafted, SEMA can permit the seizure of individual assets through a process involving the courts, but not state assets. Senator Omidvar’s new bill, debated here today, extends this by creating a legal path for state assets to be seized.
Colleagues, why are we contemplating such extraordinary actions as the seizing of state assets of a foreign country? We are contemplating extraordinary actions because we are faced with extraordinary circumstances, and, in particular, here today, we are discussing the illegal and immoral invasion by Russia of the free, independent and democratic nation of Ukraine.
As a matter of justice and based on our values and our interests, we must take action. The funds seized under this act and similar actions by other Western nations can assist Ukraine in rebuilding after the devastation of war.
Let’s think about the destruction that Russia has perpetrated with its illegal invasion of Ukraine, first, the lives lost. According to The New York Times and based on American government sources, as of August of this year, approximately 70,000 Ukrainians have died, and between 100,000 and 120,000 have been wounded. Russia’s military casualties, these officials said, are approaching 300,000, including 120,000 deaths and 170,000 to 180,000 injured troops.
There is evidence of multiple crimes and violations committed by Russia and Russian troops. A paper recently prepared by investigator Rodrigue Demeuse for the NATO Parliamentary Assembly examined these violations and presented evidence in three areas.
First, there are violations of international humanitarian law, the so-called laws of war, established by the Geneva Conventions, the Hague Convention and others. Russia has violated these laws. It has deliberately killed civilians and used arbitrary detentions, torture, forced disappearances, human shields. It has used sexual violence, especially against women, but also against men. Russia has targeted and destroyed civilian infrastructure, for example, by bombing a maternity hospital in Mariupol in 2022. Russia has denied humanitarian assistance and perpetrated the forced deportation of civilians, including children.
Second, Russia has also violated international human rights law, based on several international treaties and covenants. These include violations of the right to life, freedom, security, expression, assembly, as well as economic, social and cultural rights such as the right to education, the right to health care, food and water rights, environmental rights and many others.
Third, there are breaches of international criminal law. Here, there is the crime of aggression committed when Russia invaded the sovereign and independent nation of Ukraine with no justification, which is a clear violation of the UN Charter. There are also war crimes, crimes against humanity, and there is even evidence of genocide.
It is clear that the destruction brought by Russia in Ukraine has been massive. The humanitarian losses, including deaths, injuries and displacements, will deeply affect the physical and mental health of the Ukrainian people for years to come. And the physical damage done to the country poses a huge economic challenge. One study from the Kyiv School of Economics estimated infrastructure losses as of March 2023 to be US$143 billion or 70% of Ukraine’s GDP. Housing damages were estimated to be US$54 billion. Damage to roads, bridges and airports accounted for US$36 billion in losses. In March, the World Bank estimated the cost of the country’s future reconstruction at roughly €380 billion.
Of course, Western allies and friends of Ukraine, including Canada, have provided enormous military, financial and humanitarian support to Ukraine since the February 2022 invasion by Russia. This support, I believe, will continue into the future.
Last week, I was a member of the Canadian delegation to the NATO Parliamentary Assembly in Copenhagen, where the topic of Ukraine was absolutely top of mind, not least because Ukraine’s President Zelenskyy addressed our plenary session via video. I sensed strong and continuing support for Ukraine among these parliamentarians from NATO countries, and this reassured me greatly. However, there was also a disquieting sense that this terrible war could continue well into the future. In that scenario, nobody really knows what will happen.
Still, colleagues, the bill before us aims to make Russia accountable and to pay for its crimes and its destruction. The seizure of state assets is the core principle of this bill, which provides for our Governor-in-Council to seize these assets if any of the conditions outlined in SEMA have been met. The conditions involve the violation of international law and conventions, such as serious breaches of international peace and security or gross human rights violations, which clearly describe Russia’s actions.
After the Russian invasion, the United States and other Western nations moved quickly to freeze Russian assets held abroad, including the property of Russian oligarchs and Russia’s central bank assets held in foreign accounts. These assets are currently valued at approximately US$350 billion, including US$300 billion of Russian state assets and about US$58 billion of privately held Russian assets, this according to papers by Zelikow, Anderson and Keitner from 2022. An international debate is now under way concerning the viability and legality of seizing and transferring these assets to Ukraine, either to fund current needs, which is considered to be very important, and/or to fund post-war reconstruction. This is according to a paper written by Michal Szczerba in 2023.
On October 4, just a couple of weeks ago, Secretary of State Antony Blinken weighed in on this debate to confirm that Americans are indeed examining the legal issues. Secretary Blinken urged European countries to move forward and seize and transfer Russian assets. As he said:
My own view is you broke it, you bought it. And so the Russians having broken it, they ought to pay for it. . . .
Certainly, Canadians are on side with this important initiative. In a national public opinion survey commissioned by myself and Senator Omidvar and conducted by Nanos Research just two weeks ago, we found that a strong majority of Canadians support Canada seizing the Canadian assets of foreign states that are violating human rights and using these assets to help victims.
The survey shows that 81% of Canadians support Canada seizing the state assets of the Russian government that are held in Canada and using those assets to help victims of the war against Ukraine. Similarly, 78% of Canadians support Canada seizing the state assets of the Iranian government that are held in Canada and using those assets to help the victims in Iran whose human rights are violated.
The poll shows that support for these actions is high in all regions of the country, among both men and women and across all age groups. It’s true that Canadians may have few Russian state assets, as we have heard, but by moving ahead with this legislation, this country can help create the momentum that is needed in the world, and we can lead by example.
As a third-generation Ukrainian Canadian, I’m especially motivated to support this bill. I’m especially pleased that my friend and esteemed colleague Senator Omidvar has devoted her efforts to this worthy and important cause, and since she’s had success before, I’m confident she will have success this time as well.
Finally, I’m especially proud of Canada’s and Canadians’ vast and steadfast embrace of Ukraine in its time of need, however long it takes. Thank you, colleagues.
