The Route to Russian Reparations

Tuesday, 23 May, 2023

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Olga Golovina

Editorial Coordinator

The Council of Europe decision to create a register of damages for Ukraine has marked a key first step towards an international compensation mechanism for victims of Russian aggression. 

The agreement, signed by 43 states last week at a two-day summit in the Icelandic capital Reykjavik, established a mechanism that will serve as a record of evidence and claims information on damage, loss or injury caused by the war. 

The move follows a November 14, 2022 UN General Assembly vote by 94 countries recognising that Russian must bear the legal consequences of the invasion, including reparations.

The register, established for an initial period of three years, will be open to individuals and legal entities, as well as the Ukrainian state, regional and local authorities, and state-owned or controlled enterprises.

Kateryna Busol, a lawyer who works with victims of the Russian invasion, emphasised that compiling a register of damages should work in parallel with creating a list of direct beneficiaries.

"It is important to note that reparations are not only payments to the state, they are also payments under international law to a specific person who suffered,” she said. “We hope that the first regulatory acts will be adopted, which will define who keeps this register, so that it can be accessed as simply as possible - either through a mobile application, or for the elderly through paper registration. There should be a right to appeal if a person is not registered as a victim."

Busol added that the submission of applications to the registry of damages should not be connected with criminal investigations. 

"People are very traumatised and not everyone is ready to open criminal cases - either because of distrust in the system, or because of their own safety," she said.

The register of damages, based in the Netherlands, is due to be operational by the end of this year. It will document evidence of damages as well as claims for compensation.

“Currently, we in pre-setup stage would envisage the main tasks as setting up formal and organisational aspects of the register - such as establishing the legal identity of the organisation, setting up its bank accounts etc, hiring initial staff - as well as working towards designing the future organisational structure, procedures and identification of resources needed for it,” said Ukraine’s deputy minister of justice Iryna Mudra. 

Ukraine is pursuing a comprehensive system of accountability for the Russian invasion. One of its cornerstones is reparations for violations of international law against Ukraine, and compensation of damage, loss and injury caused to Ukrainians.

According to Mudra, the register will be the first step of a process towards setting up an international compensation mechanism.

This would see the establishment of a commission dedicated to determine claims, a fund from which pay-outs would be made and an effective enforcement procedure.

The international register of damages would be even broader in scope, as it would include information not only on destroyed property, but also data, including evidence, on all types of damages subject to compensation. This includes damages to individuals related to bodily injury, death of a close family member or crimes of a sexual nature, as well compensation for forcibly displaced persons and others. 

PRIVATE ASSETS

Busol said that Ukraine had the responsibility to help its citizens as much as possible in the short-term. 

"It is likely that with the help of public organisations and international partners, funds will be created that will provide primary assistance,” she continued. “This can be courses of psychological assistance, mobile gynecological teams, or payment of one-time assistance."

However, while initial assistance needed to be provided as quickly as possible, Mudra made clear that this needed to be distinguished from full and final compensation.

“We all understand that even the most perfect register of damage and claims
commission are worthless if all they produce is decisions on paper that don’t lead to meaningful compensation,” she said. “We also all know that Russia refuses to even entertain the idea of paying reparations, just like it had abandoned all other obligations under international law.”

It is envisaged that the main source for financing the compensation fund will be the blocked and frozen assets of the Russian state and sanctioned individuals.

These are currently held in the territory of the US as well as countries in Europe and further afield.

Each of these states independently calculates the amount of frozen effects, a sum that changes dynamically depending on the number of assets of sanctioned persons identified and blocked. The real amount of frozen assets is
unknown, as these take many forms and are located in many different places.

“Therefore, it is difficult to predict whether the confiscated assets will cover all the damages incurred, but we will try that as many victims as possible receive proper compensation,” Mudra concluded.

US attorney general Merrick Garland has authorised the first transfer of forfeited Russian assets for use in Ukraine. The justice department last year charged Russian oligarch Konstantin Malofeyev with violating sanctions imposed on Russia after its invasion of Ukraine, saying he provided financing for Russians promoting separatism in Crimea.

"While this represents the United States’ first transfer of forfeited Russian funds for the rebuilding of Ukraine, it will not be the last,” Garland said in a statement.

A lawsuit in Britain against the Wagner private military contractor could also help Ukrainians seek reparations for crimes committed during Russia's invasion. Lawyers estimated that as much as five billion UK pounds could be claimed under existing international law from sanctioned Russian assets in the UK.