Compensatory Mechanisms and Compensation for Damages
Representing a wide community of Ukrainian civil society organizations and initiatives that are participants to the Memorandum of CSOs of Ukraine on Shared Guiding Principles on Accountability for International Crimes Committed in Ukraine, we reached a common agreement on the following.
The right-holder of the right to compensation is the state-victim of armed aggression. The right to compensation aims to guarantee its security, contribute to the restoration of the international legal order and minimize the threat of revanchism. From this perspective, the confiscation and repurposing of frozen assets is, in our opinion, a component of Ukraine’s right to self-defense, which is not limited to the use of military force, but also extends to economic counter-measures. This right corresponds to the duty of the state that caused the damage and has a customary nature. It is reflected in the Articles on the Responsibility of States for Internationally Wrongful Acts (2001), Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), Recommendations of the Committee of Ministers of the Council of Europe on Eradicating Impunity for Serious Human Rights Violations (2011), and recognized in the caselaw of international justice.
Payment of compensation to Ukraine for damage caused in the course of aggression against Ukraine will be the appropriate response of the international community to the violation of the fundamental principles of international law, as well as a moral and legal imperative, and a restraining factor for the benefit of the entire international community.
From this perspective, we welcome the existing initiatives and efforts taken by the UN General Assembly (Resolution A/RES/ES-11/5), the Parliamentary Assembly of the Council of Europe (Resolutions CM/Res(2023) and 2482 (2023)), the European Union (Resolution 2023/2558(RSP), the NATO Parliamentary Assembly (Declaration 482), certain states that make necessary amendments to national legal framework and law enforcement practice.
Although the main responsibility for compensation lies with the Russian Federation as a state that launched an aggressive war, the circle of parties whose actions fall under the definition of the crime of aggression in accordance with the UN General Assembly Resolution A/RES/3314(XXIX) of 14 December 1974 is broader and includes, but is not limited to the Republic of Belarus. We believe that when creating the framework of the compensation mechanism, it should be assumed that a group of aggressor states led by Russia will refuse to pay ex gratia compensation. This circumstance should not become an obstacle to obtaining compensation for victims of crimes against peace. Realizing that, we emphasize the need to consolidate efforts to support solutions such as:
- It should be recognized that the Russian Federation and other states involved in the aggression against Ukraine should bear absolute responsibility for all damage caused since the occupation of the Crimean Peninsula in late February-early March 2014. The burden of proof in challenging the attribution of harm in compensation mechanisms at the national and/or international level should be on the defendant.
- A unified methodology should be used to calculate damages, and numbers should be correctly interpreted, distinguishing damages from actual recovery needs. Parties involved in the calculation must ensure prompt and transparent exchange of data on the damage and free access to the data.
- It is worth supporting the vision of the future international compensation mechanism proposed by the Government of Ukraine, which should consist of four elements: the Register of Damage, the Commission for Reviewing Claims, the Fund for Making Payments, and an international treaty that will establish the provisions for the previous three elements to function. International cooperation should be encouraged, and the establishment and full launch of every mechanism should be promoted.
- At each stage of compensation, a victim-centered approach should be implemented – in particular, by ensuring publicity and transparency of decision-making, wide involvement of representatives of civil society in the establishment and operation of the compensation mechanism, and bringing the guilty party to justice.
- It should be taken into account that the European Court of Human Rights (ECtHR) remains one of the effective mechanisms for obtaining fair compensation, by making appropriate decisions based on consideration of both interstate and individual applications. Considering the potential refusal of the Russian Federation to comply with the ECtHR decisions, it is necessary to look for ways of diplomatic and legal pressure on the Russian Federation, including but not limited to, expanding cooperation with other intergovernmental organizations to facilitate the implementation of the decision of the ECtHR, identifying clear steps on the implementation of decision in the text of decision itself, development and application of new types of sanctions for non-compliance, appointment of a special representative for the enforcement of court decisions within the Council of Europe or at the UN level. In addition, the renewal of Russia’s membership in the Council of Europe should be conditioned on the implementation of ECtHR decisions in cases against it.
- Frozen Russian assets should become one of the sources of compensation for the damage caused by the Russian Federation in the course of its aggression against Ukraine. To this end, it is necessary to ensure, where possible, their immediate confiscation and repurposing in accordance with the fundamental principles of international law, in particular, as regards the protection of the property rights of individuals and legal entities.
- It is necessary to conduct multilateral consultations between Ukraine and the states that control the frozen state assets of the Russian Federation to develop a decision that would enable withdrawal from the sovereign immunities regarding the assets of the aggressor. This decision should be based on existing international practice of application of immunities, principles and customary norms of international law, and provide justification of its exceptional nature due to the unprecedented scale of Russian aggression and the impossibility of arbitrary unilateral actions in the practice of international relations.
- For adequate and timely compensation for damage from an aggressive war, it is necessary to conduct an audit of all assets of the Russian Federation in Ukraine and, where possible, abroad, and synchronize the relevant data in a special register, which may exist within the framework of the Fund for Making Payments.
- Effective management of frozen assets should be ensured by strengthening the capacity of authorized agencies and using the obtained revenues for compensation.
- It is important to review the provisions of national law on the confiscation of assets of individuals and legal entities to state income as a sanction to ensure that these provisions comply with Ukraine’s obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms (with additional protocols), the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights and other international treaties in order to ensure procedural protection of the party subjected to sanctions, direct participation of the party in decision-making, avoiding using the sanction as a criminal punishment without finding the person guilty through due process, and protecting the rights of third parties who are in good faith co-owners of assets.
- It is necessary to develop and implement at the national level the regulatory and legal framework for confiscation of assets of accomplices of aggression against Ukraine, criminalization of sanction evasion and control over compliance with sanction regimes, advocating the adoption of relevant initiatives at the international level as well.
- Gradual shift of emphasis from the needs of the victims of aggression to the protection of the rights of population of the aggressor state is unacceptable. Ensuring humanitarian needs of its population, as well as guaranteeing fundamental rights and freedoms, is the responsibility of the Russian Federation and should be provided without any reference to compensation for damage caused as a result of aggression against Ukraine.
Mutual strengthening, effective and high-quality advocacy activities, consolidation of the human rights movement and shaping common values and vision on the compensation mechanism and compensation for damage caused in connection with the aggression of the Russian Federation against Ukraine will contribute to the implementation of the solutions listed above both at the national and international levels, and will ensure the restoration of the international legal order, sustainable peace, security and justice.
Civil society organisation-signatories in alphabetical order:
Civic Education Center “Almenda”;
Institute of Legislative Ideas;
Regional Center for Human Rights;
Stanislav Dnistryansky Center for Law and Policy;
Ukrainian Legal Aid Foundation.
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