In March of this year, the UK will host a large ministerial conference on the issue and it may be pertinent to receive more news on the legal aspects of reparations.
Russia compensating Ukraine is on the agenda and after President Zelensky’s call for a Special Tribunal in Paris, back in October 2022, the UK has picked up the gauntlet.
London is set to host an international meeting of justice ministers in March 2023, looking to find way to process and prosecute the thousands of cases of human rights and international law violations by Russians.
Back in June 2022, the World Bank estimated that rebuilding Ukraine would cost more than $300 billion, though taking into consideration all the damage that has been sustained since, this figure is very much outdated.
Despite the political will to allocate frozen Russian funds to Ukraine, Russian federal reserves will not suffice to cover all costs, and other avenues need to be explored. During a conference held on Dec. 9, 2022 on the legal responses to Russia’s War in Ukraine, Attorney General for England and Wales, Victoria Prentis, highlighted several avenues through which this may be possible. The first avenue would be to obtain a judgement from the International Court of Justice (ICJ) and the International Criminal Court (ICC), the second from the ECtHR, and the third possible avenue would be through the creation of a special tribunal.
While a court decision would be expected in favour of Ukraine, the issue of international law is jurisdiction of courts over a case. And while legal challenges to Russian aggression provide additional exposure and clarity to the identity of the perpetrators of the crimes and atrocities committed in Ukraine, only appropriate lodged claims will produce satisfactory rulings, leading to compensations and even convictions.
International Court of Justice
Ukraine launched proceedings in the ICJ against Russia within days of the invasion, and the hearing was held on March 7-8. In a uniquely expedient move, the court granted a provisional order to cease hostilities, which Russia has violated.
The jurisdiction of the court over the case falls under the very reasoning for the war. In statements made in the period of Feb. 21-25, the Russian Ministry of Foreign Affairs and Vladimir Putin justified the invasion of the grounds that they are "stopping the genocide of the Russian speakers in Ukraine. " This gives the court grounds to litigate whether there is a genocide at all, even though Russia has since then r changed its justification for this war to self-defence and the use of force.
A majority judgement upheld the court’s jurisdiction on this matter, under Article IX of the Genocide Convention, which enables the ICJ to resolve disputes over the interpretation, application and the fulfilment of the Convention.
Should the court find that no genocide has been committed by Ukraine, this could be the basis for compensation. More specifically, the false prelude of the Genocide Convention will be the vehicle to offer compensation.
Additionally, there is a dispute on the application of Article I of the Genocide Convention, which obliged signatories of the treaty to punish and to prevent the crime of genocide. However, precedent suggests that this provision applies to the individuals responsible for the genocide, rather than states, so Russia’s attempt to punish Ukraine by invading it is, in of itself, illegal.
The court’s decision could be a basis for reparations. In the past the ICJ awarded $300 million to the Democratic Republic of Congo from Uganda for their illegal invasion and occupation of the Congo.
However, if the ICJ decide in Ukraine’s favour, Ukraine obtaining compensation from Russia is contingent on a change of leadership in Russia, since the current regime is known to disregard the legally binding decisions of the ICJ. Additionally, the enforcement of ICJ decisions falls on the United Nations Security Council, but considering the fact that the Russian Federation has the power of veto, the ICJ essentially lacks any teeth.
Once Ukraine has received an order from the court that Russia has to pay, Ukraine may be able to seek action to ensure the payment of these reparations. The precedent from this being the United Kingdom obtaining German gold that had been seized by its allies.
International Criminal Court
Since the crime of aggression has not been prosecuted since the Nuremberg trials in 1945, the ICC is the only court that has the jurisdiction to prosecute such crimes without encountering the problem of immunities. Thus far, the ICC has not brought a case gainst Russia because in order to prosecute this crime, it needs a regerral from the United Nations Security Council, which, would not be possible because of Russia’s power of veto.
What the ICC has focused on is the identification of crimes and the proof of crimes committed on the battlefield, However, going forward, it should focus its efforts on the identification of internal documentation.
Previously, prosecution of the Nazis and the Serbian army rested on such documentation, which helped to prove and identify those responsible for the crimes. The prosecution would also need to obtain information from insiders and witnesses who are able to provide evidence of a chain of command and would be stellar sources of information because of their neutrality.
Lastly, the ICC should try to intercept phone and radio conversation, which has proven to be very useful in the case of the breakup of Yugoslavia.
European Court of Human Rights
Ukraine’s hopes for receiving compensation can also be achieved through a claim to the European Court of Human Rights (ECtHR). Article 33 of the European Convention of Human Rights allows states to seek redress on behalf of the victims. And while Russia is no longer a member of the Council of Europe, as of March 15, 2022, the court ruled that its jurisdiction applies for two years after a member has left.
Nevertheless, the court still has jurisdiction for Ukrainian territories under temporary Russian occupation, but which are part of Ukraine, such as the Donbas region and Crimea. The ECtHR may be the only extant pathway to the payment of damages, both for the numerous human rights violations and for the damage caused to property. It is largely due to the latter that the compensation might run into billions of dollars.
However, since Russia ceased to be a party to the Convention from Sept. 16, 2022, potential victims will only be able to bring in claims against Russia that were committed before this date.
Furthermore, Russia has previously refused to enforce the ECtHR's awards whilst still being a member of the Council of Europe and, therefore, it may refuse to enforce any awards rendered after Feb. 24, 2022. As such, much like a decision by the International Court of Justice, Ukraine’s ability to obtain compensation from Russia seems to hinge on a change of leadership in Russia.
Creation of a Special Tribunal
Thus far, over 52,000 war crimes have been registered in Ukraine; including murder, torture, rape, forced deportation, and pillaging. While the majority of these prosecutions will have to take place in national jurisdiction, Ukrainian prosecutors will not be able to deal with this single-handedly.
Special Tribunals offer a way of managing the workload. The precedent of Bosnia and Herzegovina offers a framework for national courts to deal with cases that did not progress to the ICC. Similarly, there was such a division of casework by courts in response to the genocide committed in Rwanda.
The International Criminal Tribunal in Tanzania handled the prosecution of top-level officials, while the national courts took care of the perpetrators in Rwanda, but even with this division, they were not able to deal with a lot of the cases.
Furthermore, while offices in New York, Sydney and London are working around the clock to capture the violations that happen almost constantly, it is still not certain whether this information, which can be tracked via phone videos and social media, would be admissible in courts.
Stepan Stepanenko – Research Fellow, Henry Jackson Society
Anna Nisabyan – Research Assistant, Henry Jackson Society
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