The war on Ukraine: the moral imperative for lawyers

Many of us have looked on with despair at 24-hour newsreels of the tragic events unfolding in Ukraine. These times call upon our moral obligation as a legal profession to inquire what can be done and what should be done and a warning to us of the fragility of our democratic system and the laws that sustain it.

The attack and invasion/occupation of Ukraine has not been seen on this scale since the Second World. Yet the pattern followed by Putin is similar to that followed by Hitler and Stalin. Putin has cleaved closely to the fascists Sudetenland playbook by looking to “free” Russian speakers in the Donbas and Luhansk regions. Then, once the invasion begins and the inevitable occupation commences, so will the wiping out of history by following Stalin’s playbook, namely taking out identity, cultural sites and terrorizing the population. Putin adds the extra layer that Ukraine has no right to exist, adding a layer of Hitlerian “Untermensch” to the mix as he bombs indiscriminately civilians, hospitals, and refugees to terrorize and show the “bravery” of the Russian military. To Putin and his abettors and appeasers, that is “power.” However, in Ukraine, this is a slow-moving annihilation of a people, identity, and country.

As a lawyer, there are certain warning signs for our community. We are often used to dealing with grey areas of law when interpreting statutes or case law. Seldom do we take absolutist positions as we live in a system that permits enquiry, argument and dissent. It is a luxury afforded to us by the strength of our democratic system that serves the people rather than the autocratic system where the people serve the state. We need to guard against disinformation and not hide in comfortable silos of delineated expertise because, conveniently, we do not know enough about something. That is a facile escape at the best of times, but a coward’s escape under these difficult circumstances. That is why members of our profession need to grab the moral imperative as the differences are, starkly put, between right and wrong. There is no grey.

The legal profession is a noble profession. Lawyers have been leading lights in the development of society and have helped provide moral leadership in difficult times. Now is such a time. It is incumbent upon all counsel to take some small steps that cumulatively help in righting a wrong. I have no delusions that it will resolve what is occurring in Ukraine; however, we can honour the principles of our profession and, without ambiguity, rise to our moral obligation and take steps within our remit. To this end, I would recommend the following:

1. If you or others have investments with wealth management: Russia is viewed as an emerging market; usually, they comprise a small portion of your portfolio. Direct your advisers to divest yourselves of those accounts and move them into alternative emerging markets.
2. Professional trustees and those representing charitable organizations should advise beneficiaries as to their options for investment considering the sanctions imposed by governments
3. If you are part of a law firm that represents Russian companies based in Russia or their proxies/subsidiaries here on the civil side, you have a choice of saying no to that particular client as the hard currency from these entities goes to fund the war effort against Ukraine. Similarly, take steps to withdraw from any offices in Russia.
4. Law societies and governments must establish “civil” Nuremberg-style tribunals to adjudicate on the funds and assets seized by sanctions. The hallmark of such tribunals must be fairness, speed and efficiency. The funds are then used for reparations to the Ukrainian State to rebuild. This must be done on a provincial and state level to ensure the distribution of funds.
5.  Pursuing criminal prosecutions of Putin and his facilitators. There can be no place for them to hide.

These are but a few steps that we can take as counsel. These actions are not just merely symbolic. They are part of an effort of the West to try and support a democratically elected government to survive the onslaught of a Stalinist regime bent on annihilation. There will be no diplomatic solution. The only solution is to hope that the Russian people, as they have done historically, overthrow this regime if they so choose.

However, time is short. The war will leave an indelible stain on Russia and those Russians who supported the war or who stood by and “abstained” from judgment. They will not be able to hide behind their ballets, literature, or music for protection as the stain will always permeate.

Some may say that the financial sanctions on the Russian population are unfair. If it takes sanctions to pierce through the disinformation veil and financial discomfort to force people to start questioning why others are dying, presumably in their name, then it must be done. Those suffering financially will live to see the sunrise another day, whereas those Ukrainians who are being bombarded and dying in the streets due to an ill-conceived war may not live to see the sunrise. Therefore, what we do today is a small price to pay to allow others to live another day.

When the moment of this time is written or remembered by either our children or historians, they will judge us to determine if we rose to the occasion of discerning between right and wrong or were comfortable in maudlin explanations to cover our cowardice.

That is the moral imperative that we must meet.