Ukraine Symposium – Reparations for War: What Options for Ukraine?

On 14 November, the UN General Assembly received a resolution calling for international support and cooperation on reparations for Ukraine. For thousands of years, reparations have attempted to settle grievances and secure peace between warring nations. However, the experience of the First World War has soured large scale reparations for international armed conflicts. While claims can be settled or waived, such as between the United Kingdom and Argentina over the Falkland Islands/Las Malvinas war, examples of inter-State reparations are few and far between. Instead, since the Second World War, most conflicts have been non-international armed conflicts, involving a range of domestic reparation programs.

A Legal Basis for Reparations

Despite the lack of international experience on the award of reparations for international armed conflicts, there is a strong legal basis for reparations in Ukraine. Establishing the legal basis is important to determine who is responsible for making reparations, for what violations, and who are the eligible victims. The most persuasive legal authority is to base reparations on Russia’s internationally wrongful act in violating the UN Charter by waging an aggressive war.

On a number of occasions, the UN Security Council has recognized that States responsible for acts of aggression have an obligation to make full reparations. The most notable example of a reparation program established on this basis is the UN Claims Commission (UNCC) formed following Iraq’s invasion of Kuwait in 1990. If a similar Commission could be established for Ukraine, based on Russia’s act of aggression, it could assess the direct losses suffered by the Ukrainian State, as well as by companies, international organisations, other States and individuals, including potentially Ukrainian soldiers. Yet, as discussed below, the likelihood of a similar body to the UNCC being established for Ukraine is doubtful.

Other violations of international law during the Ukrainian conflict can also form the basis of reparations claims. However, under the laws of war, the legal basis for reparations is more limited. Despite Additional Protocol I of the Geneva Conventions recognizing that a responsible party should pay compensation for breaches, and recent cases like DRC v Uganda at the International Court of Justice awarding reparations for war crimes, the law of war provides no right to reparations for individual victims.

Alternatively, human rights law does allow individuals and groups who have had their personal and property rights violated during conflict to claim reparations. For instance, the European Court of Human Rights has heard such mass claims related to armed conflict. Like the International Criminal Court, however, human rights bodies are not able to award large scale reparations in an effective and timely manner.

The remainder of this post outlines some options for reparations for the war in Ukraine before addressing some of the challenges. These options, together with their associated strengths and weaknesses, are expanded in more detail in this working paper.

Options for Reparations

In light of the possible legal bases for reparations outlined above and past practices, four potential options for reparations present themselves:

1. A United Nations Claims Commission for Ukraine

2. A domestic reparation program – the Ukrainian National Reparation Directorate

3. A Ukraine-Russia Mixed Arbitration Commission

4. An Independent Investigative Mechanism, Registry and Trust Fund for Ukraine with the Ukrainian National Reparation Directorate.

UN Claims Commission for Ukraine 

A United Nations established mechanism could receive claims and distribute funds from frozen and confiscated assets for the benefit of those affected by the war in Ukraine. This mechanism would mirror to some extent the UNCC related to Iraq’s invasion of Kuwait. It would allow individuals, corporations, and other legal entities to bring claims for the harm they have suffered, including violations of personal integrity, investment losses, and property damage.

However, a UN claims commission for Ukraine would need to be established by the UN Security Council, where Russia has a veto power. Given the current political climate and ongoing conflict, it is unlikely to obtain sufficient backing.

Moreover, unlike the UNCC, a claims commission would face difficulties in securing funding from frozen assets or from the proceeds of levies imposed on Russian oil and gas imports. This is due to the need for either UN Security Council authorization, or a bilateral agreement between countries using sanctions imposed on frozen assets to transfer the funds to such a commission.

Ukrainian National Reparation Directorate 

A second option is a domestic reparation program to deliver a range of reparation measures to victims. This would be made up of three parts: a founding legal basis; an administrative body with a registry; and an inter-ministry coordination body.

The body would require a presidential decree or legislation to give it legal authority to draw down funds to pay for staff, services, and other benefits to victims. The administrative body would likely be a directorate with organizational responsibility for the claims process (applications, verification, assessment and implementation), and act as a registry to catalogue victims’ applications and supporting evidence against other corroborating data held in government and public records. The third element, an inter-ministry coordination body, would act as a monitoring body and also facilitate data access and coordinate the implementation of certain forms of reparations, such as medical rehabilitation and housing.

The national reparations directorate would aim to award victims individual and collective reparations. These would consist of monetary awards, along with a range of services and symbolic measures to comprehensively (as far as possible) remedy their harm. Such collective measures would complement any individual compensation lump sum or pension paid to victims, so as to maximize its benefits through the delivery of specialist services that victims need, such as housing, healthcare, and the recovery of remains. The directorate would face two main challenges: funding, and the continued occupation of Ukrainian territories.

Given the scale of violations it is likely that reparations would cost tens of billions of dollars and would need to be carried out over the coming decades, especially if the war is protracted. In addition, a directorate would not have the capacity or funding to address investor and company losses. These would need to rely instead upon investor-State dispute settlement processes.

Ukraine-Russia Mixed Arbitration Commission 

A third option would be the establishment of an arbitration body with the consent of both parties to settle claims arising from the conflict. Such an adjudication body could be created through a bilateral agreement between Ukraine and Russia, with provisions on the nature, scope, procedure, adjudication, and enforcement of claims.

There is a range of practice relating to post-war adjudication of outstanding claims, such as after the First World War and with the Eritrea-Ethiopia Claims Commission (EECC). The Permanent Court of Arbitration (PCA) could be involved in the arbitration of claims relating to the Ukraine conflict, especially where Russia is unwilling to appoint arbitrators or accept Ukraine’s nominations. However, there are dangers of non-enforcement of any awards that are determined, leaving affected victims and other claimants no better off. This is apparent with current outstanding claims before the PCA between investors and Russia over the occupation of Crimea.

Independent Investigative Mechanism, Registry and Trust Fund for Ukraine

A fourth option would be to establish a hybrid mechanism to coordinate international cooperation with the delivery of reparations through a domestic program. With the UN Security Council unlikely to establish a claims commission, the UN General Assembly could establish an independent mechanism to help document violations to support any domestic claims process, with an external registry to collate victims’ claims.

This hybrid approach, involving an international mechanism to support the collection and collation of evidence of violations, would complement a national reparation program in Ukraine. It would also assist in funding reparations by acting as a repository for confiscated assets, through agreements with relevant countries. This would likely require a bilateral agreement between such countries and the mechanism, as well as with Ukraine. The draft UN General Assembly resolution proposes an international register of damages, but a more specific body that complements domestic efforts would be more effective.

In all, a domestic reparation program with some international cooperation to assist with evidence collection and collation, along with liquidation of assets to provide funding, remains the most viable option given the ongoing hostilities. There is some recent guidance on how to implement such a program. There are a number of challenges, however, that will impact upon any chosen reparation mechanism.

Other Challenges

Any reparation program or claims body will face difficulties concerning eligibility, evidence, and funding. In terms of eligibility, reparation programs often delimit the scope of a victim population to maximize the resources available to those who need them the most. The war in Ukraine has caused millions of people to flee their homes, with over 7 million refugees in the rest of Europe and 6.5 million people internally displaced in Ukraine. In Colombia, where more than one fifth of the population is registered as a victim, the inclusion of such displaced persons in the reparation program has meant that it will now take decades for redress to be delivered.

A reparation program for Ukraine will also need to consider when it will accept reparations claims: from 2014 or 2022? Will it be only for victims in the territory of Ukraine or also those who had to flee Belarus and Russia? Will nationals from other countries be able to claim under the program, such as the victims of the shooting down of airline MH-17? Will the relatives of Ukrainian soldiers who are killed, or mistreated Ukrainian and Russian prisoners of war (POW) be able to claim? Under the UNCC, coalition forces were able to claim for compensation if they were mistreated as prisoners of war (POWs) and at the EECC both countries were awarded compensation for mistreatment of their own POWs by the other party. How will the process deal with collaborators who have suffered violations? Domestic reparation programs have some experience of dealing with such complex victims in compliance with human rights law.

In Ukraine, there are already hundreds of compensation claims underway since the 2014 invasion, as well as numerous applications to the European Court of Human Rights. With mass displacement and ongoing fighting, it is incredibly difficult for victims to evidence their claims to a level required for a private claim before the courts. A mass claims program at the international or domestic level is intended to make it easier for victims to claim, through a lower evidential threshold, but will still need access and the collation of a range of evidential sources to reduce the evidential burden on victims.

A final issue is funding. Reparations for the war in Ukraine are likely to cost tens of billions of dollars, requiring not only compensation to be paid, but also the creation of institutions to recover remains, rehouse those displaced, and restore their land rights. There is additionally a requirement for a range of specialist services, some of which for disabled victims will need to last for decades to support them for the rest of their lives. In other contexts, the experience has been that trust funds supported by international donors are not sustainable. Instead, there is a need for a dedicated funding budget, whether this is through using assets and/or a dedicated funding stream from the Ukrainian government’s annual budget.

Funding of reparations requires not only covering the cost of reparations measures, but also the institutions to deliver them, as well as support to victim organizations to mobilise those affected and support their applications.

Concluding Thoughts

Reparations are not punitive measures. They are intended to be a form of accountability, ensuring that those responsible remedy the harm they cause by their wrongdoing, which in turn upholds the law and encourages non-repetition.

At the same time, reparations perform a political function, by providing a medium for wrongdoers to rehabilitate their image and standing, reintegrating them into society or the international community. For victims, reparations cannot undo the past or the continuing harm they suffer, but they can at least alleviate the consequences and recognize that they did not deserve such harm. For Ukraine, it is likely that any reparations will have to be conditional on the removal of all Russian troops from its territory and other security guarantees. For Russia, it will have to contribute substantially towards a reparation bill for the consequences of its wrongdoing. Such a contribution does not necessarily have to be from sanctioned assets, but accessing such frozen funds can be a way of leveraging compliance in paying reparations. In the end, reparations are a way to secure balance between warring parties, to settle their grievances and find a new way to move forward.

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Luke Moffett is a Reader at the School of Law, Queen’s University Belfast.

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