Given the presence of the Orange Man in the White House, defenders of democracy and the international rule of law can no longer count on the United States for support. Other countries need to step up. One way to do that is to finally act on forfeiting the assets of Russian oligarchs and companies and giving them to Ukraine. It is not Ukraine’s allies, but Russia, who should pay for its illegal war in Ukraine. 

For over two years now, Canada has talked a big game, claiming that it would freeze, seize, and forfeit the assets of private Russian entities and oligarchs and then turn them over to help Ukraine’s recovery. At first, there was some significant movement. In 2022, Canada restrained $26 million dollars held by a company, Granite Capital Holdings, owned by Vladimir Putin’s pal, Roman Abramovich. In 2023, it seized an enormous Antonov airplane from the Volga-Dnepr company. No state had ever tried to forfeit the assets of sanctioned persons before. But Canada had amended its Special Economic Measures Act and was poised to be a trailblazer.

The next step was to get judicial approval of the forfeiture of the assets and then send them to Ukraine. Yet the government has not even filed in court. Global Affairs Canada has refused to shed light on what’s happening and claimsthere is no timeline for action. In Ukraine, death and destruction continues.

Separately, announcements by Prime Minister Justin Trudeau on a recent trip to Kyiv have caused confusion: is Canada now going to seize Russian state assets to help Ukraine? So far, the answer is no. 

According to the RCMP, Canada has frozen about $140 million of Russian state assets in the country (it could have been more, but Russia moved money out of the country before its February 2022 invasion). In Europe, approximately $300 billion in Russian state assets have been frozen. About 8% of that was held in Canadian bonds and securities which have since matured, meaning that some $22 billion in Canadian dollars is sitting in Euroclear, a clearing house based in Brussels.

It is on the back of immobilized funds that the G7 had agreed to secure a loan to bolster Ukraine’s defence against Russia’s war of aggression. Put simply, Canada’s promise is to fund Ukraine with a $5 billion loan which will be repaid by the interest earned on frozen Russian assets.

Neither Canada nor Europe have shown much appetite for taking the next step: seizing and forfeiting the assets to help Ukraine pay for the damage Russia has done to the country. The reason for this is both legal and political. As a matter of international law, seizing state assets is generally prohibited, as they enjoy immunity from seizure. As a matter of politics, states like Canada are concerned by the real threat that Russia will reciprocate and seize Canadian assets or those of Canadian citizens. The total amount of Canadian assets in Russia is unclear but could help explain Ottawa’s glacial pace in going to court to secure the forfeiture of the Antonov aircraft and Abramovich’s funds.

As I have previously explained, some experts argue that the international law of countermeasures could justify taking Russian state assets and giving them over to Ukraine. In a nutshell, the idea is that states can respond to Russia’s unlawful invasion of Ukraine by taking measures that would otherwise violate international law: seizing and repurposing state assets. As Canadian law professor Robert Currie explains: “countries holding Russian state assets are entitled to suspend their usual obligation to keep these assets immune.” Not everyone agrees, but the use of countermeasures is the most persuasive justification for seizing Russian state assets. It remains to be seen whether Canada has the moral and legal courage to try it out.

Meanwhile, Abramovich’s holdings are still, well, holding, and the Antonov airplane is still parked at Toronto Pearson Airport. It has accrued $1 million in parking fees that taxpayers are paying for via an agreement between the Pearson and Public Services and Procurement Canada. In late February, Ottawa added two subsidiaries of the airline to its sanctions list in late February, perhaps an indication that it might finally take the necessary legal steps to have the plane forfeited. That might be complicated by Volga-Dnepr’s move to bring Canada to arbitration and claim that the seizure of the aircraft has caused the airline $100 million in damages. Abramovich may follow suit (no pun intended).

If Canada is going to seek the forfeiture of assets to help Ukraine, it should do so now. If it is unwilling or unable to do so, it should likewise be honest about that. The combination of big talk and foot-dragging on the part of Canada is untenable. As one Member of Parliament has said: “there was some strong language… we were going to be using those Russian assets to help rebuild Ukraine… but then the actions don’t follow through.”

It is time for Canada to put its money – and Russian assets – where its mouth is.

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For disclosure, the author, Mark Kersten, has provided technical advice to Ukraine’s Prosecutor General’s Office regarding the legal status of private Russian assets held in Canada as well as avenues for their seizure and forfeiture under Canadian law.

A version of this article first appeared at Open Canada.