Asters
  June 27, 2022 - Ukraine

REPARATIONS FROM RUSSIA: FINDING SOLUTIONS AND POSSIBLE OPTIONS
  by Asters

The military aggression of Russia and its satellites against Ukraine is not only a personal tragedy of Ukrainians and a threat to the existence of Ukrainian statehood. It also has an economic dimension in the form of huge material losses suffered by both Ukraine in general and each citizen in particular. According to the Center for Economic Policy Research (CERN) [1], as of the beginning of April 2022, “Ukraine’s economy has lost 30–50% of its production capacity, mainly in the East of the country. Human losses (killed and wounded) are increasing. Factories and plants were destroyed. Ports, railways, elevators, warehouses, logistics centers, power lines and telecommunications are significantly damaged or destroyed. Housing and commercial real estate in many large cities (Kharkiv, Mariupol, Chernihiv) were virtually destroyed, and many other cities were also severely damaged. Social infrastructure (schools, kindergartens, hospitals, etc.) has also been destroyed. About 30% of crops were not sown. About 30% of workers have been relocated (including professionals such as doctors, engineers, mechanics, etc.). During the first month of the war, economic activity decreased by 30-50%. Given that the war continues, estimates of losses are inaccurate, but they are likely

The aggressor State and its political leadership are fully responsible for the unleashing and conduct of this unprovoked war, the numerous war crimes and crimes against humanity, together with crimes containing signs of genocide. Therefore, they are also responsible in the economic sense - in terms of compensation for economic damage caused by military aggression, both direct and indirect, compensation for the reconstruction of Ukraine, as well as compensation to Ukraine and individual Ukrainians for attacks, casualties and major damage caused by war.

One of the forms of material responsibility for such actions in international law is called military reparations. These are payments from one state to another (in modern practice - also to individuals) at the end of the conflict, which are intended to compensate for the damage and damage caused during the war. Such reparations may be lump sums or payments over a period of time, the transfer of property, including industrial assets, and the main purpose is to compensate the winner for military losses. Reparations usually take one or more of 5 forms: monetary compensation, restitution, rehabilitation, satisfaction, and guarantees of non-recurrence. Military reparations should be distinguished from military contributions, which were a tribute to the victor in the war and existed in international law practice until 1919 - to the Treaty of Versailles, which for the first time determined military reparations for Germany for losses,

Note that since the first application, the practice of military reparations is not stable and unchanged, each time slightly modified. At the same time, from the legal point of view, the obligation of states to provide compensation for violations of international law is a basic principle of international law, which, in fact, is the main prerequisite for military reparations. Therefore, the issue of material compensation from Russia and the procedure by which its obligations can be realized after the end of the Russian aggression is open. Consider some possible options.

Agreement on military reparations

Historically, a state that has won a war has imposed reparations or military contributions on its defeated adversary (the state), which was part of a peace treaty. Later (as a result of World War II), military reparations agreements also began to include compensation obligations for individuals. Given the current state of the military conflict, as well as the relations of its parties, such a (contractual) option for Russia to pay reparations to Ukraine and Ukrainians is unlikely. At the same time, he is not ruled out by the consequences of Russia's military defeat on the battlefield.

The reparations provided for in the treaty are binding on the states parties to this treaty, and any non-compliance with the terms of the reparations agreement will be a separate violation of international law.

UN Security Council actions

Pursuant to Section VII of the UN Charter, the UN Security Council has the power to take action against threats to peace, violations of peace and acts of aggression. Within such powers, a multilateral commission or mechanism may be established to manage the reimbursement process. At the same time, Russia's right to veto as a permanent member of the UN Security Council makes this mechanism virtually ineffective.

Litigation

Reimbursement may be provided as part of international or national litigation. Several courts, both international and national, may be competent to deal with such proceedings. This includes the possibility of considering an interstate case in the UN International Court of Justice, a criminal case in the International Criminal Court (ICC), a criminal case in a Ukrainian court of general jurisdiction or claims for damages in a national court. In addition, the option of establishing an international court through an international agreement between the Government of Ukraine and the UN to consider the crime of aggression could be considered.

Note that none of these methods is 100% effective given the possibility of achieving the goal - to recover compensation from the aggressor state. However, at least the proceedings before the UN International Court of Justice and the International Criminal Court [2]  are supported by Ukraine:

  1. On February 26, 2022, Ukraine filed a lawsuit [3]  with the UN International Court of Justice alleging Russia's violation of the Convention on the Prevention and Punishment of the Crime of Genocide. Ukraine also immediately filed a  request  for precautionary measures, in which, in fact, it asks the UN Security Council to order Russia to stop the war in Ukraine.
  2. Since 2015, since the submission of the application by the Ukrainian government, the ISS has officially had the authority to investigate crimes committed on Ukrainian territory. On February 28, International Criminal Court (ICC) prosecutor Karim Khan launched an investigation into war crimes and crimes against humanity in Ukraine committed during the current armed conflict.

In the case of the establishment of a court under an agreement between Ukraine and the UN, it is also important to comply with Ukrainian law, as the Constitution of Ukraine (Article 125) explicitly prohibits the establishment of emergency and special courts. In view of this, the established court should be international and not mixed or extraordinary chambers of a national court. It should not be developed as a complement to the judicial system of Ukraine. The creation of such a court is supported by a number of well-known international lawyers as almost the only real opportunity for Ukraine to defend its own rights as a victim of an aggressive war [4] .

Sources of funds for damages

The terms of peace agreements, which provide for the payment of reparations by the state that is forced to do so, sometimes provide for the creation of a special fund for compensation and the means by which these funds are provided.

An option to finance Russia's reparations process could be to use frozen or seized (including as a result of sanctions) assets. The United States, the European Union, and other countries that have frozen Russian assets are currently considering options to supplement their legislation with provisions to "liquidate" such assets and direct the proceeds to post-war reconstruction in Ukraine, humanitarian aid, and other measures.

As can be seen from the legislative activity,  [5]  [6]  [7]  in the United States, certain key parameters of a possible future mechanism of confiscation are traced. Mostly, they provide for additional powers for the President of the United States, including the general permission to confiscate the property of certain Russian persons subject to United States sanctions and to use that property for the benefit of the people of Ukraine and for other purposes. Such individuals identify foreign-sanctioned foreign-sanctioned legal entities whose assets are believed to have been obtained in part through corruption linked to Russian President Putin's regime or his political support.

Funding from confiscated assets may be supplemented by payments similar in nature to Iraq's payments to Kuwait. In this case, the share of revenues from the export of oil and oil products went to the compensation fund. Such a compensation fund could be replenished by additional taxation on Russian energy exports.

Despite such a variety of options for obtaining compensation under international law, it is not necessary to expect quick compensation from Russia in the form of reparations. International court proceedings, which have a certain perspective, are very prolonged in time and have little effectiveness in restoring Ukraine's losses.