A Moral Dilemma?
Updated: Mar 11, 2022
Let me first explain the picture above the article. The photo depicts not just a random armed fighter. The person photographed is the Right Honorable Mr. Ivan Mishchenko, who is a judge at the Supreme Court of Ukraine. The translated text above the article in which this photo originally appeared reads: "It doesn't matter who's a lawyer, who's a prosecutor, who's a judge — we're all united." Monologue of the Supreme Court judge who took the machine gun” The article was published on 5 March. A lawyer I know, who also knows Mr. Mishchenko personally, has assured me that this photo is real.
Bye bye Russia
Over the past week there has been an exodus of western companies out of Russia. Each and every day we have seen new announcements of companies producing and/or selling consumer goods, which are not only closing their operations in Russia, but also stop selling through independent outlets. Apple, McDonalds, IKEA, Shell, Disney, Hennes & Maurits, Adidas and General Motors, the list goes on. Since the invasion on February 24, more than 300 companies (and counting) have halted Russian operations, far exceeding the 200 big companies that quit South Africa over Apartheid in the 1980s.
Doubt in my mind
Last week, I published an article ‘Moral Duty’ in which I advocated boycotting all companies and individuals that have direct or indirect ties to Russia. Seeing the above picture of Ivan Mishchenko has made me reflect on my point of view. First and foremost, the picture is a stark reminder that this war is not fought from behind a desk, but on the ground while risking real peoples’ lives. Mr. Mishchenko is not writing opinionated articles. Maybe what I am doing is too easy, I don’t know?
Secondly, some of the companies that are now rushing out of the Russian market, do this because of the public pressure. There is an outraged and angry mob of media and consumers that demand that companies abandon everything Russian. There is little or no room for nuance. Right now it is black or white. This polarization is as such not new. It has been growing since Trump and been manifest also during Covid times.
Thirdly there is the question if economic pressure will have any favorable effect. There is actually little or no historic evidence indicating it will. In all recent examples where strong international economic sanctions have been imposed, the real world effects have been quite the opposite. North Korea, Iran, Venezuela and Cuba for example have all hardened their positions and their regimes have not been overthrown. Fidel Castro remained in power until he was eventually succeeded by his brother. Why would things be different when it comes to Russia? How likely is it that because of the sanctions and boycotts, Mr Putin will be forced out and replaced by a nice pro-western anti-authoritarian successor? Perhaps the sanctions and boycotts will only make the Russian population suffer and make them more nationalistic and anti-west?
What about the legal industry?
In last week’s article I have shared with you part of the conversations I had had with a number of our clients regarding their interests in Russia/Russian clients. My point of view at that point in time was that it would be best to terminate all their direct and indirect Russia related business.
Drawing parallels with Nazi-Germany, there was a strong emotional feeling not wanting to end up on the wrong side of history. Any lawyer who back then would have legally represented either the German State or companies such as IG Farben or Krupp, would have been held accountable after the war.
The question for me today is, where does this moral responsibility end? There will be little doubt that western lawyers should steer clear of representing the Russian State or any of its entities. Also Russian state-owned or state-controlled companies are a no-no, as are persons and entities that are on the sanctions list. Then comes a large gray area.
Let me give an example: individuals that are on the sanctions list, do own properties in the west. The problem is that these properties will not be in their name, but will be owned by a company or other investment vehicle instead. The ultimate beneficiary owner will most likely be invisible through a network of companies located all over the world. So if the property is seized and the legitimacy of this action is contested in court, should a law firm take that client?
Calibrating our moral compass
The present situation is equally terrifying as it is confusing. We don’t live in a clear cut world, where the good guy wears a white hat and the bad guy always a black one. The only way to navigate these troublesome times is by keeping an open mind and taking into account different opinions and points of view. Our moral compass needs frequent recalibration. This can only be done through discussion and exchange. At the same time this should never be used as an excuse for not taking a moral stance. There is a real war going on, and we need to pick sides!
Not taking a position and just accept the money will never be defendable.
One of the challenges is that we live in times where in the public opinion there is no tolerance for nuance. This is one of the main triggers for the corporate exodus from Russia.
Let’s once again look at that picture of Mr. Mishchenko, before we either turn a blind eye because we serve mammon, or claim the moral high ground from the safety behind our desks. It is a strong reminder that this is very much a war of bullets and bombs, and not of hollow words.
I’m afraid I do not have a clear cut answer, but I am happy to contribute to a discussion at any time. Please don’t hesitate to reach out!
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(Update: on 10 March 2022 I have been directly in contact with Mr. Mishchenko, who authorized the use of his name and picture for this article)