An end to the war in Ukraine does not appear to be in sight at the moment, and yet the world community is discussing how Russia can be persuaded to pay for the war damage caused by its army in the neighboring country. A resolution by the UN General Assembly calling on Moscow to pay reparations received 94 votes on November 14. 14 states voted against, another 73 abstained.
In September, Ukrainian Prime Minister Denys Schmyhal estimated the direct physical damage suffered so far as a result of the war at US$ 326 billion. The sum had been verified by experts from the World Bank, Schmyhal said at a meeting in Brussels. It is likely to increase further until the end of the war. Russia has already rejected the resolution. The document is “legally insignificant,” according to Russian UN diplomat Vasily Nebensia.
Reparations are basically compensation payments made by a state for damage caused by its criminal acts. International law expert Paul Gragl from the University of Graz explains that the amounts and type of payments are determined by international institutions or a peace treaty after the end of the war.
One of the best-known cases of reparations concerned the German Reich after its 1918 defeat in the First World War. There were claims of over 200 billion gold marks that were to be paid over decades. The Federal Republic of Germany, as the legal successor of the German Reich, made the last transfer in 2010. Even after the Second World War, Germany had to pay reparations to the Allies.
There are a few other examples of reparations in modern history. This also includes Iraq’s reparations payments for the occupation of Kuwait in 1990/91. The basis for the payments were the resolutions of the UN Security Council. They are considered a precedent, which the Ukrainian permanent representative at the UN General Assembly cited, says Paula Rhein-Fisсher from the Academy for the European Protection of Human Rights at the University of Cologne.
Resolutions of the UN General Assembly are not legally binding. They have more political weight because they reflect the opinion of the international community, says Paul Gragl. “It expresses a political intention not to forget that Russia, as an aggressor, is obliged to repair this damage,” said Gragl.
Paula Rhein-Fischer also speaks of a political signal. Russia can hardly be persuaded to pay reparations via the existing international mechanisms. “There is a clear jurisdictional problem at the United Nations International Court of Justice (whose decisions are legally binding – ed.). He is only responsible if both states have agreed to become parties to the proceedings.” However, Moscow refuses.
A legally binding decision on reparations could therefore be made by the International Criminal Court in The Hague (ICC), according to Rhein-Fischer. Its subject matter jurisdiction is limited to four types of crimes: genocide, crimes against humanity, war crimes and crimes of aggression. However, for the court to prosecute the crimes of aggression (which could lead to a decision on reparations), a UN Security Council resolution is required, and Russia, as a permanent member of the UN Security Council, is expected to veto that decision becomes.
The charges against Russian officials for the other offenses falling under the jurisdiction of the ICC are already under judicial investigation, but investigations could drag on for a long time.
According to the expert, a third instance that could theoretically oblige Russia to pay reparations is the European Court of Human Rights (ECtHR). However, Russia withdrew from the Council of Europe in September 2022 and has since been no longer subject to the decisions of the ECtHR. The court could only order the Russian Federation to compensate Ukraine for the destruction that occurred between February and September 2022, explains Paula Rhein-Fischer.
Based on the experiences of the past few years, however, it is to be expected that Russia will not implement a corresponding ECtHR ruling. “In addition, it is very controversial whether the European Convention on Human Rights is applicable to ongoing conflicts at all,” says the expert, adding: “For the time being, it therefore seems unlikely that the Russian Federation will pay reparations in the near future.”
It is also currently being discussed whether Russian funds that were frozen as part of the sanctions imposed on Moscow could be used to pay reparations. The main focus is on the foreign assets of sanctioned Russian companies, the property of private individuals and the foreign exchange reserves of the Russian central bank.
“There is of course a legal difference between ‘freezing assets’ and ‘confiscating assets’,” says international law expert Gragl. “Freezing means that this only happens temporarily.” Seizing Russian assets as reparations, on the other hand, is not possible without a legal basis, according to Rhein-Fischer. However, an international arbitration commission does not yet exist, and the decision on confiscation by national courts involves major legal complications.
A new international mechanism to be created could possibly remedy the situation. The UN resolution of November 14 provides for its establishment. Ukraine’s Deputy Justice Minister Iryna Mudraja has already said that this will allow numerous states to “move from discussion to action”.
At the same time, as Rhein-Fischer emphasizes, state assets for sovereign purposes – which in this case probably also include the Russian foreign exchange reserves – are protected under international law by immunity from confiscation. However, the General Assembly resolution could offer an opportunity to include a provision in the treaties between Ukraine and third countries that would strip Russia of this immunity.
“In my opinion, this point raises legal questions, since contracts cannot be concluded to the detriment of third parties,” says Paula Rhein-Fischer. In this case, the third party not party to the contract would be Russia. “Another question is whether this practice could lead to changes in existing rules of international customary law,” the expert continued.
In Rhein-Fischer’s view, lifting sanctions against Russia in return for agreeing to pay reparations would be less problematic from a legal point of view. A peace treaty between the parties in which Russia undertakes to compensate for the damage it has caused is ideal. “But in the current situation, that’s unfortunately unlikely,” says the expert.
Adaptation from Russian: Roman Goncharenko
Author: Marina Baranovska
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Originally Posted “How Realistic Are Russian Reparations?” comes from Deutsche Welle.