Iryna Mudra, Deputy Minister of Justice of Ukraine

 

The full-scale military aggression of the Russian Federation against Ukraine in February 2022 came as a shock to the whole world. The event struck the world with its cruelty and cynical violation of generally accepted norms of international law. But there is another reason for the shock: the lack of ready-to-use tools to respond.

Attempts by the international community to act by persuasion after the occupation of Crimea in 2014 did not lead to a solution to the issue, but to an even greater escalation. In addition, the nuclear status of the Russian Federation and its inclusion in the very heart of the deterrence system - the UN Security Council - also influenced.

The world faced a situation where one country unleashed a bloody war against its neighbor for no reason, and it is impossible to resist this, guided by previously adopted rules. That is why the rules should be revised. One of the main changes should be the renewal of the very principle of bringing to responsibility, and especially in terms of compensation for damages.

From reparations to a compensation mechanism

The idea of war reparations frightens the world community with the prospect of revanchist sentiment. In many ways, these are the consequences of the agreements after the First World War, which, through a chain of events, led to the next global war. This development of events does not suit anyone. On the other hand, there is an example of Soviet military aggression against Afghanistan, when the aggressor lost de facto, but de jure remained undefeated, which did not allow the demand for reparations or compensation.

The world community is now aware of the above mentioned risks and is actively cooperating in the search for new forms of cooperation to compensate for losses from aggression by the Russian Federation in the future. The first stage of this process was the actual recognition of the ineffectiveness of existing international legal instruments.

Even before the events of 2022, it was clear that the Russian Federation would block any decisions of the UN Security Council if they forced the Russian Federation to pay compensation. And this significantly limits the toolkit for responding. For example, in the issue of compensation, Ukraine is based on a similar case of the Iraq-Kuwait war. However, then in 1991, the UN Compensation Commission with a mandate to determine the amount and implement compensation payments by Iraq for the damage caused to Kuwait by a military invasion was established on the basis of UN Security Council Resolutions No. 687 and No. 692. Now this is impossible due to Russia's abuse of the right of veto in the UN Security Council.

Now the creation of the Compensation Mechanism and, in particular, the International Register of Damage was recommended in the Resolution of the UN General Assembly of November 14, 2022. The key here is the advisory nature of the decision of the General Assembly. And although there are already positive changes (On May 17, at the Summit of the Council of Europe, in the presence of the heads and government representatives of almost 50 states, the Treaty on the establishment of the International Register of Damage with headquarters in The Hague was signed), the problem of implementing decisions and filling the compensation fund remains. Today, public international law, the entire UN system is based on categories that were fundamental until recently. In particular, on the concept of sovereign immunity. However, the situation after February 24, 2022 has shown that these principles can only be applied to a country that does not violate them.

This means that it is necessary to introduce a new principle of compensation for damage caused by military aggression. The determining factor in this case should be a change in the very principle of not recognizing the very fact of aggression.

Ukraine understands the complexity of implementing such an approach, in contrast to the existing classical principles of public international law, however, the world community today has no other mechanism, method, approach to cover the damage caused by the aggressor country.

In proposing the principle of Talion, which should be applied without a judicial decision against the aggressor country, obliging the aggressor to comply with such a decision, we must find a basis that would allow the application of this principle. Given the protracted military aggression, it seems correct, in contrast to the generally accepted principle of the presumption of innocence, in the case of military aggression, to speak of the principle of the presumption of guilt of the aggressor.

Such a combination of the principles of compensation for damage caused by military aggression with the principle of guilt of the aggressor country itself should create a dualistic model of influence. This is what will make it possible in the future to ensure the deterrence of the country from a potential war, on the one hand, and provide ways to compensate countries that have suffered from such aggression.

Compensation mechanism device

First of all, we should talk about the procedure for fixing or confirming such damage in order to establish an indisputable connection or the root cause of such damage in the actions of the aggressor country or its military. Damage assessment should be based on collectively approved methods.

At the moment, the International Register of Damage in The Hague has already been registered and will soon begin full-fledged work. The Government of the Netherlands, as host, has already voted to place the Register in The Hague, and the Committee of Ministers of the Council of Europe has authorized the establishment of the Register under the auspices of the Council of Europe. (On May 17, at the summit of the Council of Europe, in the presence of the heads and government representatives of almost 50 states, the Treaty on the establishment of the International Register of Damage with headquarters in The Hague was signed).

The multilateral international treaty with the UN member states that supported the relevant resolution of the General Assembly on the establishment of the International Compensation Mechanism was launched. Such an agreement will create a Compensation Commission, the main task of which will be to consider the applications of persons affected by the war, and a Fund will be created, from which, in fact, payments will be made. Ukraine proposes that the Fund, first of all, be filled with the assets of the Russian Federation, sanctioned citizens and legal entities of the Russian Federation, which are in the jurisdictions of the countries that are parties to the international treaty. And decisive action is required on this issue. Now some countries are concerned about the prospect of setting a precedent that would put their own assets at risk by opening them up to demands for compensation for past conflicts in which they have been involved. However, the Ukrainian side insists that we are talking about applying such an approach to countries that do not respect the principles of international law.

In the event of aggression, states may impose obligations on the aggressor arising from measures taken in accordance with the UN Charter for the purpose of maintaining international peace and security. And such measures could once again be the confiscation of assets belonging to the aggressor. The state that committed the aggression is not entitled to enjoy the legal advantages that every state can usually derive from public international law. In the context of seizing the assets of individuals under sanctions, there is some progress. For example, the arrest of Boeing 787-8 and Gulfstream G650ER aircraft, which are owned by Russian oligarch Roman Abramovich through front companies. A judge in New York issued a warrant for their arrest due to the fact that the aircraft were delivered in violation of the sanctions. Similar work is being done in Europe - we know about the arrest of luxury mansions and yachts. But there is practically no progress in the issues of confiscation of state assets.

Today, any aggressor country, including the Russian Federation, relies on its jurisdictional immunity of the state as an independent participant in a specific legal process. In other words, any legal proceedings without the consent of the state itself are unacceptable and impossible. In particular, the notion of state immunity is based on the principle that a sovereign state is not subject to the authorities of other states.

The principle of state immunity is based on the concept of sovereign equality enshrined in the UN Charter (1945) and disclosed in the Declaration of Principles of International Law (1970). Although the very concept of sovereign equality arose much earlier. This principle applies both to the legislative and executive, and to the judicial jurisdiction of a foreign state. In fact, at present there is no single world practice for resolving issues related to the application of the concept of state immunity. Part of the burden falls on national legislation.

But, even if you strictly follow the letter of the law, then immunity is applied in court proceedings, but not in administrative ones. What Ukraine proposes, namely: the creation of an administrative body - the Compensation Commission to consider applications from war victims and the payment of compensation according to the decisions of the commission from compensationbringing to responsibility - compensation should prevent the repetition of such actions in the future. The situation in Ukraine requires a change in the fundamental paradigm of international public law, approaches to determining the moment when the responsibility of the aggressor arises in the form of compensation for damage and harm. The mechanisms of the international legal order should play a preventive role against any aggressor in the commission of certain actions aimed at military aggression against other countries.

Such an approach can be implemented if the act of aggression itself is recognized as sufficient to launch mechanisms for the arrest and confiscation of the assets of the aggressor country, as well as its citizens involved in the outbreak of hostilities and supporting them.

The principle of guilt and just retribution

Since, in the event of aggression by the Russian Federation, the latter actually commits a war crime, the international community should take as a basis the ancient Lex talionis, the so-called Talion principle, which is also the principle of equivalent retribution, for retaliatory actions. At the same time, it should be applied to the assets of the aggressor to cover and compensate for losses caused by the very fact of the country's aggression against another subject of international law.

The Compensation Mechanism proposed by our country is a multilateral agreement between partner countries where there are frozen assets of the aggressor. We are talking about an extrajudicial method of obtaining compensation, since no judicial decision that could be, was or will be taken in Ukraine or in any other country in the world under any jurisdiction is unlikely to be executed against the aggressor country, at the expense of the assets of the Russian Federation - should not affect the issue of sovereign immunity.

In this matter, it is important to understand that there is a European Court of Justice. Persons under sanctions can apply to it and try to appeal the decision: both the imposition of sanctions itself and the confiscation of assets if they were seized not because of a criminal offense. In both cases, the consideration of claims may take years and drag out the issue of compensation to Ukraine. In order to reduce such precedents, changes are needed in the national laws of the partner countries. Ukraine has already done work in this direction - the Law on Civil Confiscation was adopted, which makes it possible to significantly simplify the procedure. If in European countries such issues are regulated by the Constitution, then constitutional changes may also be required.

Unfortunately, today there is no judicial or legal institution in the world capable of making a decision and obliging Russia to pay compensation for all the losses caused by it as a result of military aggression on the territory of our country. In Ukraine, a working group has developed a mechanism that will help restore justice. However, its effective work will require political will and legal legitimation in partner countries.