Ukrinform sat down with an acclaimed British lawyer, Jason McCue, who has been engaged in “lawfare” against Russia, a system of measures aimed at exerting maximum pressure on Russian war actors in the legal field, achieving justice, accountability for violators of international law, and compensation for victims.
The initiative he is promoting would target in UK courts the money of Russia’s private sector elements contributing to the Russian war effort – all in order to ensure damage compensations for Ukrainians. To his end, he offers turning Ukrainian court decisions into pragmatic enforceable judgments handed down in allied jurisdictions.
THERE ARE ACCOUNTABILITY GAPS IN INTERNATIONAL JUSTICE SYSTEM
- Please, tell us what is the essence of the program you're promoting on domestication of Ukrainian court cases brought against those contributing to Russia’s war effort in the UK courts? How promising you think the initiative may be?
- The initiative is really promising, to put it simply. What’s important for Ukrainians is that there are accountability gaps. The first accountability gap is that certain members of the Russian war machine, the private sector that keeps the kleptocracy alive and keeps their war economy going through sanction busting, is getting away, scot-free. It's not being prosecuted, it's not being sued in any format. We've got to try and find litigation and prosecutions around the world to start holding them accountable. The second reason for this domestication initiative is that sometimes, the international justice system, which has been created since 1945, has gaps and for Ukraine – you know about the special tribunal on the crime of aggression… You need something new to be able to deal with the gap in the system.
If you take the issue of reparations, no one from the Russian private sector war machine is going to be prosecuted in the International Criminal Court. The crimes don't cover those actors, they're not leadership of the Russian state. So they're going to walk away and yet they're responsible as any other aspect of the Russian war machine for the heinous crimes that have been committed.
So we have created a program of what is known as Civil Society Lawfare to make these private sector Russian corporates and their oligarchs accountable for the crimes. Those cases rely on domestic courts all over the world. But there's another angle to it, and that is using the Ukraine civil law system. In Ukraine, you've got great judges, great courts, and they can bring judgments and damages compensation claims against the Russian private sector. The problem is, when you get that judgment now in Ukraine, there’s no Russian money for you to make it valuable. So it’s an ornament on the shelf, a pyrrhic victory. You can't enforce this justice.
Now, domestication initiative is going to take sampled Ukrainian cases and use the jurisdictional hub of the UK. We're going to convert it into a UK judgment and use that to enforce against defendants’ assets, not just in the UK, but in the EU and the US. Hence, those hundreds of billions of sanctioned private sector assets in the West, which are vulnerable, and the idea is that we will set a road map for Ukrainians to be able to follow.
- So, what are we talking about in terms of the volume of assets owned by the Russian private sector now based in the UK?
- In the UK they’ve got around $17 billion as per the latest count but it fluctuates all the time. But look at the global figures. There’s $240 billion in identified Russian state assets outside Russia. And $600 billion in Russian assets overall. The difference is surely private sector, kleptocratic assets, which at present aren’t necessarily sanctioned, but may be available for confiscation for compensation. Now, at the moment, there isn't enough focus on that money or enough effort for the Ukrainians to get it back legally, using the rule of law. That's what this lawfare program does and what the domestication initiative within it is going to help do, setting a roadmap that people can follow and bring cases.
GREAT THING ABOUT GOING AFTER RUSSIA’S PRIVATE SECTOR MONEY IS THAT DOMESTIC COURTS ARE DE-POLITICIZED
- Ukraine, together with its partners, is developing an international compensatory mechanism to make Russia pay reparations, one of the elements of which is the launch in The Hague of the International Register of Damage Caused by Russian Aggression Against Ukraine. In total, up to 8 million applications are expected from Ukrainians who suffered from armed aggression. How will your program fit in with the government's efforts to this end?
- It is quite normal in conflict and post-conflict circumstances to set up a reparations commission, mechanism, and fund. That's what this Register of Damage is part of, and it's good. But all these discussions are focusing on that $240 billion of Russian state assets, not the private sector. But a problem with any reparations commission is that they take a long time. They have to be legally compatible. Also, like everything on the international level, it's open to real politics. The great thing about going for the Russian private sector assets and about lawfare is that it's de-politicized. You're in domestic courts where politics don't come into it. It's about legal rights, and that gives you something that Ukrainians can hold on to and not worry about the politics.
- So you believe this would also give us a better pace…
- It is a better pace. Undoubtedly, the process of domestication, which is three to nine months, is a lot quicker than a commission on reparations. That for Iraq, for instance, was 10 years in the making. And at the end of it, families who had lost their loved ones, one of their incomers, were getting awards of $4,600. That's not a lot. Ukrainians who have lost their family members deserve proper compensation, which should be in the hundreds of thousands of dollars. And the problem why those amounts in the Iraq case were so small is because the pot of money is not infinite. It's the bit that they have negotiated with the bad actors. So, at the most, there's going to be $240 billion. Sounds a lot, but hold on, you've got to pay for your schools to be rebuilt, your hospitals to be rebuilt, your train systems, your nuclear facilities... Once you've started spending that, what’s left for regular people on the street who have lost their home, their car? It's much smaller amounts.
Now the great thing about lawfare, what I'm suggesting, is that it runs in parallel with the reparations commission. What we're doing is increasing the pot, looking at money which otherwise isn't targeted. I'm finding a faster method for the Ukrainians to get what they deserved. That's justice.
CLASS ACTION SUIT AGAINST WAGNER GROUP REQUIRES MORE RESOURCES TO MOVE TO THE NEXT STAGE
- Speaking of average Ukrainians, can you update us on the pilot case you launched back in 2022 targeting the notorious Wagner Group in London, where a group of Ukrainians filed a class action suit against this mercenary group and its leader Yevgeny Prigozhin. Has there been any progress in that case? Have any Ukrainians living in other countries filed similar suits?
- So to answer the first question, I think the proceeding is at 18 months now, and we're in a position of needing to raise finance to go to the next stage because we don't want the case just to be for a small handful of people. We did that to make a show against Russia, to show the Ukrainians there were efforts made. We need to bring more people on board. We need to expand the case. There are defendants that I want to target, and we can do it, such as the Russian Orthodox Church and many individual private banks in Russia. We're going to come for them. Now, to do that, we need resource. Not resource so that lawyers can make profits or have a sports car – it’s not about that. It’s about the basic stuff so that people can work pro bono and low bono with all the experts we need and evidence gathering, to be able to expand that case into the dynamic piece of lawfare for your country.
But I'm cautiously optimistic. I think, at the end of the day, we will find the right people or the right government, and it will happen.
For instance, I'm here for the YES Conference. Why? Because there's a load of rich people there. I'm going to be running after them, going “Sponsor this case for the kidnaped children! Sponsor this case for the people injured from drones!” That’s because these cases have impact. I've been doing this for 30 odd years, and I've taken billions of dollars off terrorist groups. This concept does work, you just need to start to put the effort into it.
ONLY BECAUSE ROC IS A CHURCH IT DOESN’T MEAN IT SHOULD GET AWAY WITH MURDER
- You mentioned two interesting things in answering that question. First of all, you tied the Russian Orthodox Church to Wagner Group and probably the Russian war machine in general. And you mentioned the abductions of Ukrainian children. First of all, do you work personally on the any cases of Ukraine children being abducted by Russia? And another question is how exactly do you see Russian Orthodox Church being connected, affiliated with and contributing to the Russian war effort?
- Let me start with the Russian Orthodox Church. Because it's a church doesn't mean it should be able to get away with murder. It needs to be held accountable. The Russian Orthodox Church provided training facilities to groups like Wagner. Guilty. That is aiding and abetting war criminals and terrorists. That's punishable under law. Secondly, they were involved in the kidnapping of the children. Notice, I used the word “kidnapping”, or “abduction”, which are the proper legal terms for what happened to your children that were snatched by the Russian state. It's not just deportation. Deportation is humanitarian law’s definition. These children have been stripped of their identity, they're being brainwashed, they've lost their data. That's getting into right to liberty under the human rights legislation, and I strongly believe – and will be pleading – genocide. It's an act of genocide, so the Russian Orthodox Church is going to have those cases coming at them on those claims, those actual prosecutions on those subjects.
BY ABDUCTING UKRAINIAN CHILDREN, RUSSIA ACTS LIKE BOKO HARAM TERRORISTS
We feel that the kidnapped children issue really needs the spotlight, whether it was five children, or a thousand children, or 10,000 children. The kidnapping of children in war is heinous crime, a breach of human rights, a breach of humanitarian law, and a genocide. Who else did that? Bokо Haram. They kidnap children. Who else? The Lord's Army. These were terrorist criminal organizations. That is exactly what Russia has done. They are no different than Boko Haram. And I think it's very important that a case is brought to prove that point in a court of law and to get a verdict.
We will seek a declaration from the ECHR on the absolute legal rights of each abducted child. And our request for that clarification/wording from the court will form a “Children’s Mandate” as the center-piece of a global awareness campaign (of each of the children’s rights to welfare/safety/etc. that have been abused by Russia) that Russia must now adhere to. And that document – the “mandate” -- signed by all our supporters, will be pasted on every Russian embassy and church.
We're also going to seek damage compensation from the Russian Federation for the kidnapping, and I'm here to try and raise money at the YES Conference for this case and to meet a number of families who have suffered, their children, which I'm sure you've met many more than me, to talk to them about it, and to talk about what we can do on this.
- We see how Russia has been deliberately discrediting international justice, trying to destroy the entire international legal system, compromising international legal bodies. Do you think any of that requires change?
- This is sort of fundamental to my beliefs. I don't pray to God. I look at concepts of law and I believe in rule of law. These are the things that touch me and trouble me. What Russia has done is they’ve trodden, stamped, and spat on rule of law. They’ve done it constantly. Now they don't give a damn about human rights – even of its own people, let alone the Ukrainians that they face in the battles. Yes, Russia must be forced to get back in line with the rule of law. It's why I'm putting in whatever I'm doing, trying to help Ukraine. What I do understand is that rule of law is on your side. And that's what I think myself and other lawyers who are obsessed with legal principles, like religion. So we’re coming to you, trying to help in any way we can.
PUTIN AND PEOPLE AROUND HIM UNDERSTAND THE POWER OF LAWFARE
- Back in 2022, in an interview with the Dzerkalo Tyznhia outlet you said you wanted to be a “pain in the a**” for Prigozhin and Putin. Now that Prigozhin is presumably dead and Putin's still out there, do you feel you have succeeded in becoming one for Putin?
- Perhaps I’ll concentrate my being a pain in the a** on Putin now… Putin personally sanctioned me. So I reckon he must be a little pissed off because he understands, or people around him understand, the power of lawfare and how it can take their assets. Once you start taking the assets of the kleptocracy, it crumbles. So, we're an existential threat. Only if we can get this program going and get more people around the world and Ukraine brings these kind of cases... Putin can do what he wants, he shows his disdain for human rights. But we must still bring it on, get all these lawyers out there and bring actions to serve the cause of Justice.
- So the most irritation he can get is where he's cronies start losing their money.
- It is. And it's exactly the same what we did with rogue regimes and terrorists in the past. Once you get the enablers, the financial facilitators, it all crumbles. That's the model. We’re not reinventing the wheel. We're saying, “Do it on Russia!” as this is the perfect example of where it can be done effectively.
Also, there's going to be disinformation campaigns on us, people will come out trying to malign us. We know that. But the whole legal team working on this, the NGOs and charities that support us, like Payback4Ukraine, Justice and Accountability for Ukraine, Pittsburgh Law School, Kiel University – they all believe in rule of law. They know that Justice works and they're all going to put effort in. I'm hoping to get students, too. I have come here to meet with your universities here to see if we can get some law students involved in these projects. In that way, through lawfare, we use rule of law. We change the direction, we become a pain in the a** to Russia.
- Thank you for being with us here today. And I hope you raise enough finance and and rally enough people for your huge effort. And good luck to you.
Ievgen Matiushenko, Kyiv
Photo by Ruslan Kaniuka