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Moral considerations in confiscating Russian assets Russia’s full-scale war against Ukraine has been going on for almost two years. During this time, Russia has committed brutal crimes against Ukrainians, which were witnessed by the international community. In February 2023, the UN General Assembly demanded that Russia stop the war and immediately withdraw its army from Ukraine.[1] In March 2023, the International Criminal Court (ICC) issued an arrest warrant for Vladimir Putin, accusing him of being responsible for the illegal deportation of children from Ukraine, which constitutes a war crime.[2] While Ukraine is fighting for its freedom and awaiting fair adjudication of crimes committed during this bloody war, the material losses of the Ukrainian state are growing.   According to the World Bank, the losses caused by the aggressor amount to more than 400 billion euros on the controlled territory alone, and after the liberation of the entire territory of Ukraine from the invaders, this amount might double.[3] Ukraine’s economy currently functions at the expense of macro-financial assistance from partners, but Russia must pay for the damage it caused to peaceful Ukrainians.   Voluntary compensation by the aggressor country is unlikely. A more practical solution is to confiscate the assets of Russia as a state, as well as its citizens and companies that support the Putin regime. However, prior to the full-scale invasion, there were no universal approaches to the confiscation of assets of the aggressor state with the possible aim of transferring them to the state affected by the aggression while the war was ongoing.   Historically, compensation for war losses was conducted mostly at the expense of state funds on the basis of treaties or other international acts. In most cases, the aggressor state must agree to pay compensation under such treaties, since they are typically negotiated and require the consent of all parties involved. However, there are some scenarios in which compensation may be determined without the direct agreement of the aggressor state:   Imposed reparations: in certain situations, the victorious parties in a conflict may impose reparations on the aggressor state as part of the peace settlement, as after World War I with the Treaty of Versailles.[4] These imposed reparations are often outlined in a treaty or agreement. The aggressor state may be required to accept these terms as a condition for the cessation of hostilities and the restoration of peace.

Over his career, Kevin Macdonald has directed a plethora of documentaries and films which have garnered critical acclaim and popular success. Not one to shy away from sensitive and complex subject matter, Kevin’s work depicts unsanitised, thought-provoking stories, from a documentary on antisemitism to a film on a prisoner in Guantanamo. For the former, Kevin was awarded an Academy Award for Best Documentary feature. His latest film, The Mauritanian , explores the real story of Mohamedou Ould Slahi, a man imprisoned by the US government in Guantanamo and charged with organizing the 9/11 attacks. The film follows civil rights lawyer Nancy Hollander, marine prosecutor Steve Crouch, and the alleged terrorist Mohamedou himself. Featuring a star studded cast of Benedict Cumberbatch, Jodie Foster, and Tahar Rahim, the film intricately weaves complex themes such as the rule of law to make a compelling legal drama. CJLPA : Before we delve into the film The Mauritanian , we wanted to know what impact the film had had on Mohamedou Ould Slahi’s life and how life has been for him since the film came out.   Kevin Macdonald : I spoke to him recently. He is doing well. He still runs into difficulties with certain countries. They still won’t let him into Germany which is where he was living before he was arrested. He’s a sensitive soul and finds it really upsetting.   One of the things that’s remarkable to me is that he is not more embittered. He wants to be positive, do positive things and not regret all the time he lost. This is in the context of his mother dying whilst he was in prison [Guantanamo]. He is also incredibly forgiving. So for him to be faced with these accusations, which are almost certainly orchestrated to some degree by embarrassed individuals in the security services, is awful. I was told that this was the case by the German ambassador to Mauritania, who became a very good friend of Mohamedou’s. The German ambassador said that there were people in the BND who act hand in glove. These people don’t want to admit they were wrong [about Mohamedou]. They would rather just keep on besmirching his reputation.   CJLPA : Subsequent to the film coming out, Mohamedou has given talks at eminent institutions such as the Cambridge Union. How has he found speaking publicly on his time in Guantanamo?   KM : He is willing to talk about it but finds it really hard. There is a lot of trauma that gets brought up during the talks. After those sorts of talks, he has to recover. It takes him several days after each time to recover because he’s reliving the trauma each time. He wants to tell people but at the same time it affects him. When he came and stayed in my house, he liked spending a lot of time in his room. I don’t know much about prisoner psychology, but he likes to be in a small, controlled environment.   CJLPA : You now know him very well. How did you first come across Mohamedou’s story?   KM : I had actually read some of his book [ Guantanamo Diary ] when it came out it. I never thought of making a film about it until Benedict Cumberbatch’s production company got in touch with me and asked me whether I would be interested in being involved. I was not sure if there was anything more to say about the war on terror. The production company told me to just talk to Mohamedou. I spoke to him and it was his personality, wit, and warmth that really astonished me and I thought, I want to make a film about this character. I’m not a politician. I’m not a lawyer. I’m a filmmaker interested in stories and characters.   I just thought he was an extraordinary character who needed to be better known. I wanted to try and tell the story of Guantanamo in a way that really affects a wide audience that isn’t just preaching to the converted. The problem with a lot of human rights films and documentaries is that they are seen and admired by people who already agree with what is in them. We felt that we wanted to make a film that tried to reach both sides of the American political divide, to show that the justice that was served to Mohamedou was a travesty and that he was mistreated by the system. If you can move people to empathy, you can change their mind. You can make them understand the legal aspects of his case but in a simple but emotional way.

1. The Obligation to Undress and the Destruction of Personal Property: Related Violations   1.1. Evidence of Confiscation and Destruction of Migrants’ Personal Belongings Denounced by International Organisations, Bodies, and Non-Governmental Organisations   The requirements for migrants to undress and the destruction of their personal belongings—including documents and mobile phones—by border guards and Frontex [the European Border and Coast Guard Agency] agents, at both internal and external borders of the EU, has been a subject of reporting and condemnation by various international organisations and institutions for several years.   The Fundamental Rights Agency of the European Union (FRA), in its 2020 report on the external borders of the EU, exposed severe violations of migrants’ human rights, including the confiscation and arbitrary destruction of personal effects. The European Committee for the Prevention of Torture (CPT) has also repeatedly condemned the seizure and destruction of personal belongings of individuals forcibly returned from Greece to Turkey.[1]   The report titled ‘Beaten, Punished, and Pushed Back’ by the Protecting Rights at Borders (PRAB) network, published in January 2023, reveals that the people fleeing persecution or serious harm and in search of protection, attempting to enter the EU via the Bosnian-Croatian border over the past years, have faced denial of access to asylum procedures, arbitrary arrest or detention, physical abuse or mistreatment, and theft or destruction of property.[2] In a testimony of July 2022 provided by two individuals from Bangladesh, it was stated:   We continued walking through Croatia and at around four in the afternoon, we descended from one hill towards a water stream. That is when we heard dogs barking nearby […] and then silence […] so, we drank water and refreshed. After five minutes, we heard and noticed a drone flying above us, and then almost immediately some 20-30 police officers surrounded us. They caught all 16 of us, no one escaped, and not anyone even tried to. […] They asked if we had phones, power banks, money, or anything in our possession. We had to put everything in a bag, and another row of police searched us and took anything that they would find, even lighters or paper bags. […] We asked for water and for our phones, but they refused to give them to us.[3]   Furthermore, the report highlights that the destruction of personal belongings, particularly telephones and SIM cards, is also occurring at the Polish-Belarusian border. The refugees faced robbery by Belarusian border officials as well. These persistent abuses have been extensively documented in a policy note published in December 2021 by the PRAB network. The note asserts that the confiscation and destruction of migrants’ documents and personal property at European borders serve dual motivation (‘ensuring evidence is destroyed, and lucrative purposes’) and takes different forms. As the note states:

Eric Emeraux is the former Head of the Central Office for Combating Core International Crimes and Hate Crimes (OCLCH), France’s war crimes unit. Prior to that, Emeraux spent five years in Sarajevo as internal security attaché at the French Embassy. His book Hunting Monsters , published in 2023 in the UK, recounts the considerable work achieved with his team to track down war criminals and put an end to impunity. This written interview was conducted in December 2023.   CJLPA : During the five years you spent in Sarajevo as internal security attaché at the French Embassy, you were confronted with the horrors of genocidal wars. What were the most significant challenges you encountered in this position? What impact did this position have on the rest of your career?   Eric Emeraux : I was previously specialised in the fight against organised crime and homicide. It was mainly in this area that I worked in Bosnia-Herzegovina. Being an internal security attaché is an exciting and demanding job. You need a lot of interpersonal skills and humility to get different countries to cooperate and find innovative solutions to combat insecurity. Most of the time, cooperation is simply a matter of interpersonal relations between men and women who are willing to work together, sometimes behind the backs of their administrations. In the end, the fight against arms trafficking, human trafficking, and the fight against terrorism, particularly after 2015 and the wave of attacks that France experienced, were the greatest challenges during these five years.   But it’s also true that my assignment in this country made me aware of the impact and effects of war on people’s minds and souls. My daily life was surrounded by the horror stories that punctuated these wars. They concerned all the parties involved, dividing families, stigmatising them and leaving indelible marks, especially when justice was not served. By closely analysing certain situations, I realised how fragile human beings are because they are easily influenced, and that in the end, it’s not that complicated to turn an ordinary person into an ordinary killer.   CJLPA :   In 2017, you were appointed Head of the Central Office for Combating Core International Crimes and Hate Crimes (OCLCH). Could you briefly explain the reasons that led to the creation of this body and tell us what motivated you to work on tracking down war criminals?   EE : This office was created in 2013 as a continuation of the specialised unit of magistrates set up in 2012. As France had signed and ratified the Rome Statute, we had an obligation to try any perpetrators who may be hiding in France, in addition to the work carried out by the International Criminal Court. There are therefore two coexisting systems, one national and the other international, which implement the principles of international justice.

Susie Alegre is a leading international human rights lawyer who has worked on the most challenging legal and political issues of our time, such as human rights and security, combating corruption in the developing world, and protecting human rights in light of the rise of artificial intelligence. In our interview, Susie unravels the key issues she exposes in her book Freedom to Think , which received wide acclaim and was chosen as a Book of the Year in the Financial Times  and the Telegraph , and longlisted for the Moore Prize for Human Rights Writing.

My Dark Drawings  begin as I cover the white paper with the blackest of black charcoal. Working in a spontaneous manner I push and pull the charcoal this way and that, allowing the initial flow to take what direction it will. The surface is quickly loaded, black completely dominating white—but it is the white that holds the key. I rub, smear, and cover, standing back looking hard as I search for clues offered by remaining outposts of white. Soon enough my hand goes to work, led by my eye, pulling up light from the darkness with licks from my eraser, trying to locate that which is to be set free. Often the path taken leads nowhere and fresh charcoal almost covers my tracks, a history begins in the traces left by the forsaken trail. Always stepping back to look, once in a while taking photos with my phone to compress and clarify my progress. Then again my eraser goes to work. An image emerges, at times too quickly for its own good, yet others can be more recalcitrant. However when they do reveal themselves their confidence assured, they own me. Taking the lead they drag me along. I become their instrument, the initial clues gaining power, giving, informing, and demanding more as I follow their measure, dancing to their tune, uncovering rhythms as they evolve, leading on to the inevitable conclusion.   Their kindred cousins, ‘the others’, those whose ambiguity I desire, but it is so hard to find, slipping and sliding in the blackness. Again errant keyholes of light offer a release, a chance to realize an alternate prize, one that is seldom attained. Capriciously, they give lots and take back more. Show yet don’t tell! They know me all too well, these elusive shadowy potential presences. They tease almost wantonly, forcing me to bury them beneath my burned black charcoal. Seemingly understanding they could emerge again in another guise. At times that which was earnestly sought becomes a wasteland, chewed upon yet undigested, too hard to swallow.   The tango recommences and the hare runs free.    When all at once a fleeting glimpse sets tentative goals and these are sensed, sought, and achieved. This, on their own terms not mine, they tell me, ‘do no more for there is nothing more to do!’ The ambiguity achieved, a that or this, a this or that. The image giving once—then once again, the other and another, caught between being and slipping away, a duplicitous fiction. I fix them on the paper, and look, hope, ponder, in a perplexed vexation of delight.

Behrouz Boochani is an award-winning Kurdish writer, journalist, scholar, cultural advocate, and filmmaker. His memoir No Friend But the Mountains  (Pan Macmillan 2018, translated by Omid Tofighian) was written during his seven years of incarceration by the Australian government in Papua New Guinea’s Manus Island prison. His new book, Freedom, Only Freedom , was published by Bloomsbury in November 2022. This interview was conducted on 4 November 2023.

Téa Braun is the Chief Executive of the Human Dignity Trust. She oversees all of the core legal work of the Trust and has been involved in supporting court cases globally that seek to decriminalise LGBT people and challenge other discriminatory actions against them. She also spearheaded the Trust’s successful expansion into providing technical legal assistance to governments to reform discriminatory sexual offence laws and enact protective legislation.

Anabela Alves is a Portuguese lawyer having served as Legal Advisor to Chambers at the ICTY and later as Legal Advisor to the Presidency and Chambers at the ICC. She has also worked extensively on advising, training, and capacity building for various national judiciaries. CJLPA :   Thank you for taking the time to interview with the Cambridge Journal of Law, Politics, and Art  to discuss your incredibly influential law career, ranging from work at the International Criminal Court in its early days, to your time at the OSCE (Organization for Security and Co-operation in Europe) advising on law, justice, and human rights, and with the International Nuremberg Principles Academy, working on capacity-building and training for various judiciaries. That’s just a small snapshot of your extensive CV, which I hope we’ll be able to explore a little bit more deeply.   So, to that end, I’d like to start with your time as a Lawyer with Judges at the International Criminal Tribunal for the Former Yugoslavia (ICTY). How did your time in that setting influence your outlook on the importance of accountability and justice in the case of human rights violations?   Anabela Alves : Thank you very much. Thank you, first of all, for inviting me to this interview. It is a pleasure to join you today. And now I will try to address your questions as honestly as I always do, giving you just a glimpse into what it was like to opt for the different legal career paths and experiences that I had with these international organizations. So, I joined the ICTY in 2000. It was a decision I made prior to completing my LLM that I was doing in London, which focused on international criminal law and human rights. I had already done an LLB European law honours degree, also in London, and was working part-time on three jobs at university, so it took quite some determination on my part to actually reach The Hague. At the time, I was working as a paralegal at D J Freeman solicitors, and I was also being encouraged to obtain British citizenship to follow a career with the British Foreign Office, while partners at D J Freeman encouraged me to pursue my full qualification to be retained by the law firm. When I submitted my LLM thesis on international legal responsibility for East Timor, the School of Oriental and African Studies awarded me a merit for my research and invited me to pursue a PhD while lecturing part time. However, besides the additional financial burden that this would entail, and other considerations of settling in London longer term, I knew then that I wanted to work for an international justice mechanism. Having made up my mind, and with my passion for human rights and access to justice for all as a driving force, I landed in The Hague. At the ICTY at the time, there were not enough courtrooms available for the many cases and complex legal issues raised in the myriad of motions filed by both parties to the criminal proceedings. As advisor to international judges of the Trial Chamber that decided to raise the judicial workload to a higher level and hear two large criminal cases simultaneously—the Krstić case (Srebrenica genocide) and the Kvočka et al case (a rape camp case of the Prijedor area in Bosnia and Herzegovina)—meant that I, like many of my colleagues, were on legal duty 24/7, 7 days a week. The pressure was high.Among the many duties assigned to me as legal officer was that of sitting every day in the courtroom summarizing witness testimony to be later deliberated by judges and to be included in draft judgment or decisions that we as legal officers had to prepare for chambers. Witnessing firsthand the braveness of countless victims who appeared as witnesses in court gave me the strength I needed to continue doing my job without failing or discouraging. For victims of serious crimes such as genocide, crimes against humanity, and war crimes, having the opportunity to tell their experience to a court of law, and often confronting their perpetrators in a courtroom was liberating. Empowering victim witnesses to tell their story was the only way to find some inner peace, knowing that those who committed the horrendous crimes against their fellow human beings will not go unpunished. One should not undermine the impact serious crimes have on victims and affected communities, and the need for accountability, assurances of non-repetition ad seeing justice being done. Only through restorative justice can one envisage reconciliation among communities and sustainable peace. Unfortunately, not all victims saw just satisfaction, and many victims of the Balkan Wars are still waiting for justice to be done. Equally, the role of victims in the former Yugoslavia was limited to that of witnesses when being called by the prosecutor or by the defence to testify. At the ad hoc tribunals, victims were not entitled to participate in the proceedings, or obtain reparations under the ICTY’s legal framework. And as a consequence, without the proper support of civil society, the majority of countless victims felt that international justice had failed them.

І. Sexual violence as Russia’s weapon in the war against Ukraine: History and the present   On 24 February 2022, Russia launched an open military attack on Ukraine. The Russian troops invaded Ukraine near Kharkiv, Kherson, Chernihiv, and Sumy. As early as the beginning of March 2022, Russian troops occupied several population centres in the Kyiv region, including the town of Bucha. The world became acutely aware of the horrifying atrocities and war crimes committed in Bucha following the liberation by the Ukrainian Armed Forces. On 2 April 2022, the first video recordings of mass killings of civilians in the town of Bucha, Kyiv region, were published. In less than a month of occupation, more than 400 people were tortured and killed by the Russians. The bodies were found with signs of sexual violence. In addition, law enforcement agencies and human rights public organisations recorded numerous cases of sexual violence by Russian military personnel.   As of early December 2023, the law enforcement agencies recorded 257 cases of conflict-related sexual violence (hereinafter ‘CRSV’), which affected 96 men, 161 women, and 14 children. The age of the victims varies from four to 80 years old. As we can see, the Russian servicemen do not care about the age or the gender of victims of their sexual violence. This type of crime is just one of the tools used by the Russian military to wage war. When committing crimes of rape, forced nudity, sexualized torture, or forcing parents to watch the rape of their children, and children to watch the rape of their parents, they say that it is the punishment for the pro-Ukrainian position or for the fact that someone from their family serves in the Armed Forces, or they do it intending to cause significant harm to reproductive health to prevent childbirth, etc.   Analysing the information about the crimes committed by the Russian military in the occupied territories, we can say with certainty that the longer the Russian troops stay on the territory of Ukraine, the more cases of sexual violence and torture against Ukrainian citizens we record. For instance, as of December 2023, law enforcement agencies have detected 80 cases of CRSV in the de-occupied part of the Kherson region, 52 in the Kyiv region, 65 in the Donetsk region, and 16 in the Zaporizhia region. This was during active hostilities and the occupation of a significant territory of Ukraine. Parts of the Kherson, Donetsk, Zaporizhzhya, Luhansk regions, and several communities of the Mykolaiv and Kharkiv regions, as well as the Autonomous Republic of Crimea and the city of Sevastopol, are currently occupied, with active hostilities taking place in a significant number of regions.   People feel unsafe and reluctant to discuss the violence they’ve endured. Their immediate concerns revolve around safety, housing, medical and psychological care, and financial stability. Our organisation, the Ukrainian Women Lawyers Association ‘JurFem’, offers legal support to CRSV survivors throughout the investigative and trial processes. Through our work, we’ve found that individuals who lack access to medical and psychological aid, housing, and a sense of security are hesitant to engage with lawyers and law enforcement. Consequently, we recognize that despite our efforts to uncover all instances of CRSV, victims require time to address their pressing needs and regain a sense of safety. The prevalence of sexual violence against Ukrainian men and women by the Russian military isn’t a new phenomenon. Historical records and research reveal that such atrocities have been perpetrated by Russian occupying forces during various periods, including the First and Second World Wars, the Ukrainian Revolution (1917-1921), and subsequent armed conflicts between the Soviet government and Ukrainian nationalist groups.

Knuckle dragging, low-slung, dead pig-eyed, A belch or a growl passes for thought, Ogres, tramping through dirty snow fields To sniff out banks of flowers in the cold: Carnations, roses, violets, chrysanthemums, Anemones. Monument to a man without a needed grave Or headstone: an activist who went for one walk Too many. Dying conveniently of sudden death syndrome, Among the silver birches of a mind frozen land. The flowers are feverishly demolished By the men in uniform black: black Down to their leaden souls, stuffing Diaphanous petals into shiny plastic Sacking: trodden on for good measure, Never to see the sun again. But what is this? A jackboot stamps. There is something pushing strong under-foot, A lone green sprout, and then a yellow flower. Out of every thug footfall, flowers press upwards, in perfumed beauty, exploding, To chase the slack jawed back to their endless shadow. In the helping snow, the flowers fuse and grow Until, Across the waiting city, They bend into a dissident smile. Paul Pickering Paul Pickering is the author of seven novels, Wild About Harry , Perfect English , The Blue Gate of Babylon , Charlie Peace , The Leopard’s Wife , Over the Rainbow and Elephant . The Blue Gate of Babylon was a New York Times notable book of the year, who dubbed it ‘superior literature’. Often compared to Graham Greene and Evelyn Waugh, Pickering was chosen as one of the top ten young British novelists by bookseller WH Smith and has been long-listed for the Booker Prize three times. Educated at the Royal Masonic Schools and the University of Leicester, he has a PhD in Creative Writing from Bath Spa University where he is a Visiting Fellow, presented his doctoral thesis to the Bulgakov Society in Moscow, recently completed a Hawthornden Fellowship Residency on Lake Como and is a member of the Folio Prize Academy. The novelist J.G. Ballard said Pickering’s work is ‘truly subversive’. As well as short stories and poetry, he has written plays, film scripts and columns for The Times and Sunday Times. He lives in London and the Pyrenees. A major theme of his novel Elephant , published by Salt in 2021, is innocence. His new blackly comic, absurdly realist novel Lucy , about obedience and rebellion, political and sexual, is published on July 15 by Salt. He is working on a new novel, CONVERSATION WITH A LION , about how things fit together and fly apart. The novel tries to explain the impossible absurdity of living, impossible like a conversation with a lion.

1. Historical Overview of Wartime Collaboration   In situations of armed conflict, it is almost inevitable that there will be instances of civilians or combatants cooperating with the opposing side. The parties involved in the conflict often attempt to gain an advantage by turning their opponent's people against them. At the same time, individuals may collaborate with the enemy for various reasons, including personal conviction, desperation, or coercion.[1] As historian Gerhard Hirschfeld says, wartime collaboration ‘is as old as war and the occupation of foreign territory’.[2]   There is ongoing debate about the precise definition of collaboration.[3] However, common practices can be categorised as wartime collaboration, such as sharing information with the opposing side, defecting to fight for the enemy’s forces, engaging in propaganda activities on behalf of the enemy, or providing administrative support to an occupying power.[4]    Notably, international humanitarian law, which applies in armed conflicts, does not explicitly prohibit these activities or the recruitment of collaborators.[5] However, it does forbid the use of coercion for such purposes, particularly against prisoners of war or civilians in occupied territories.[6] The repercussions for those involved in collaboration may not become apparent until after the armed conflict has ended. This delay in consequences typically occurs when evidence of their actions becomes known, power dynamics shift, and a relative sense of stability returns, making it possible to hold these individuals accountable for their actions.[7]   There are well-documented cases of wartime collaboration in various parts of the world during the tumultuous era of World War II (WWII). Notably, countries like Norway, France, and Poland grappled with the complex issue of collaboration in the face of occupation and conflict. Wartime collaboration manifested differently, blurring the lines between cooperation and coercion.   In Norway, the collaborationist government under Vidkun Quisling collaborated with the Nazi occupiers, while a robust Norwegian resistance movement (Motstandsbevegelsen) actively opposed them.[8] This divergence in responses and allegiances raised intricate questions of justice, accountability, and reconciliation in the post-war period.[9] France, too, witnessed a multifaceted landscape of collaboration during WWII. The Vichy regime, ruled by Marshal Philippe Pétain, collaborating with the Nazi occupiers, stood in stark contrast to the French Resistance (La Résistance), exemplifying the ideological and geographic divisions within the country.[10] The aftermath of the war led to a complex web of legal proceedings, reflecting the challenges of distinguishing between voluntary collaboration and collaboration under duress.[11] Similarly, Poland’s experience during WWII was marked by diverse responses to the occupation. The Polish Underground State (Polskie Państwo Podziemne), including organisations like the Home Army (Armia Krajowa), actively resisted the Nazi occupation and Soviet influence.[12] However, collaboration, whether driven by opportunism or coercion, coexisted alongside this resistance. Post-war Poland grappled with the legal complexities surrounding collaborators, shedding light on the intricacies of determining the extent of collaboration.[13] It has taken two generations for most countries that Nazi Germany occupied to admit that it was the resisters, not the collaborators, who were the minority.[14]