Editor’s note: This article was originally published as part of Just Security’s series on reparation mechanisms in the context of Russia’s war against Ukraine. It is also part of Just Security’s Symposium, International Law in the Face of Russia’s Aggression in Ukraine: The View from Lviv.
The problem of compensation for war damages inflicted by the Russian aggression against Ukraine is a subject of active discussion domestically and internationally, and remains a priority for both the Ukrainian government and the Presidential Office.
These discussions as well as formal efforts mostly focus on two primary aspects: establishing an international compensation mechanism and confiscation of the frozen assets of the Russian Central Bank. Meanwhile, in Ukraine, individuals and businesses directly harmed by the aggression seek practical solutions for reparations and justice, often through national mechanisms, including judicial ones.
The rise in domestic claims for war damages creates challenges for the Ukrainian judiciary, not just due to the number or complexity of the cases, but also because of the ambiguity regarding the judicial system’s role in this process.
It seems that the role of courts and judges in the compensation process has been ignored by the decision-makers in Ukraine– but not by the hopes of victims.
Courts and Compensation
The Ukrainian judicial system has been engaged in various, albeit patchwork, ways in the war damages compensation processes. For instance, since May 2022, the High Anti-Corruption Court has been authorized, upon request by the Ministry of Justice, to seize assets owned by sanctioned Russian citizens, primarily oligarchs. As of early February 2024, over 30 confiscation rulings have been issued. Not all requests from the Ministry of Justice have been granted, reflecting the adversarial nature of the process and the due process standards that require prosecutors to meet their burden of proof.
Most importantly, in April and May 2022, the Civil Cassation Court Within the Supreme Court issued two decisions ruling that sovereign immunities do not protect the assets of the Russian Federation.
This position was supported by several key arguments, including:
- The Russian Federation is engaged in aggression against Ukraine, severely breaching its state sovereignty with the intention of committing genocide, in direct opposition to the principles and objectives of the U.N. Charter.
- Damage to the plaintiffs’ property by the armed forces of the Russian Federation constitutes an exception to the state’s judicial immunity, in line with customary international law, which, according to the Court, is confirmed in Draft Articles on Responsibility of States for Internationally Wrongful Acts and in practice of the International Court of Justice (North Sea Continental Shelf (Federal Republic of Germany/Netherlands) Case) and practice of the European Court of Human Rights (Cudak v. Lithuania (№ 15869/02).
- Denying the plaintiffs’ claims would infringe upon their right of access to the court, as guaranteed by Article 6(1) of the European Convention on Human Rights. In the court’s opinion, Russia has violated the basic principles of international law by carrying out military aggression against Ukraine. These actions, which are “international crimes,” have made it impossible to maintain “courtesy and good relations” between countries and deprives the legitimate purpose of applying the judicial immunity of the Russian Federation, which limits the plaintiff’s right to a fair trial.
- Acknowledging Russia’s judicial immunity would conflict with Ukraine’s commitments to counter terrorism, notably in relation to the Council of Europe Convention on the Prevention of Terrorism, the International Convention for the Suppression of the Financing of Terrorism, among others.[1]
These resolutions and the arguments they present are obviously emotional, reflecting the context of the ongoing hostilities in spring 2022. Legally, they represent a complex mosaic of arguments and references to various norms of international law. Additionally, these decisions have not been affirmed by the Grand Chamber of the Supreme Court, the rulings of which carry greater authority.
Despite this, the primary concern is that these decisions might not be recognized or enforced in other jurisdictions to facilitate the confiscation of the Russian Federation’s assets. It is very doubtful that courts in other jurisdictions would accept the sovereign immunity exception that Ukraine’s courts identified. Together with non-systematic and thinly-reasoned argumentation, other jurisdictions might rightly fear that the application of new and broader sovereign immunity exemptions could create a dangerous legal precedent for the world, where WWII reparation claims still are discussed.
Nevertheless, these decisions have set a certain precedent, which is being widely followed by general courts at lower levels. And there are two main reasons for this. The first one is thousands of claims from Ukrainians who, in situation of uncertainty regarding the procedure, terms and amounts of compensation, turn to the courts. And the second one is a lack of understanding of the role which judicial branch of power should play in the compensation process.
Problems of Practice
Since 2014, Ukrainian courts have been considering cases seeking compensation for damages resulting from Russian aggression, in lawsuits filed against the Russian Federation. Although there have been some favorable rulings, the vast majority of cases have been dismissed. The primary reasons for these dismissals were the lack of specific legislation on compensating victims of military actions and the principle of sovereign immunities, which is also recognized in Ukrainian law.
After Feb. 24, 2022, in the absence of clear administrative procedures and guidelines for damage compensation, tens of thousands of individuals and thousands of Ukrainian businesses affected by Russian aggression have started to bring their cases to court. Currently, hundreds of such cases are under consideration, and the favorable rulings that have been issued are beginning to establish trends in judicial practice. The Supreme Court’s resolutions have paved the way for justifying deviations from the principle of sovereign immunities.
The argumentation of most of such decisions consists in copying the motivational section from the aforementioned Supreme Court rulings. However, the general courts’ application and interpretation of the international law norms they refer to, raises numerous questions. For example, some courts refer to the UN Declaration on the Right to Peace of Dec. 19, 2016[2]: “Article 1 of the Declaration on the Right to Peace certifies that everyone has the right to live in the world under conditions of protection and protection of all human rights and full realization of development.”
Besides the fact that it’s not an exact quote, the Declaration belongs to the “soft” international law, which lacks the binding power of treaty norms, and the customary status of the Declaration has not been established. Nevertheless, the political context here is even more significant: the Declaration was not endorsed by any G-7 member, and Ukraine abstained from the vote. Instead, it obtained support from Russia, Belarus, Iran, North Korea, among others. Since court decisions are issued in the name of Ukraine, this raises questions about the consistency of the stance on this matter
Misunderstanding and disregard of international legal practice is a red thread running through the entire judicial practice of Ukrainian courts on this matter. For instance, in lawsuits from business, compensation for “lost profits” is often awarded.[3]
However, practice of the ICJ in the “DR Congo v. Uganda Case” shows, these damages are not compensated: «…international law imposes no responsibility to compensate for the “generalized economic and social consequences of war”, and that past tribunals have not “found generalized conditions of war-related economic disruption and decline to constitute compensable elements of damage, even in the case of some types of injury bearing a relatively close connection to illegal conduct”.
A similar issue arises regarding compensation for moral damages. Ukrainian courts often award substantial sums for both material and non-material damages, which is morally justifiable from the perspective of a victim-oriented approach. For instance, a Ukrainian court valued the forced relocation from Kharkiv to Kyiv at approximately $45,000.[4] Nonetheless, these decisions are currently made on an ad hoc basis, without a clear, understandable, and consistent calculation methodology.
In seeking to apply a victim-oriented approach, the lack of consistent methodology may also have an unintended effect: victims who have suffered the loss relatives, mutilation, tortures, etc., should be entitled to even higher compensation amounts than courts are awarding. And requiring victims to return at some later date once a more coherent calculations scheme is in effect also poses problems, since the potential future review and reduction of these compensation amounts could further traumatize the victims and those affected by Russian aggression.
Conclusions
The decisions of Ukrainian courts regarding compensation to victims of Russian aggression reflect a positive intention by Ukrainian judiciary to protect the rights of those harmed by Russian aggression. However, issuing decisions in the absence of a clearer framework may negatively impact the compensation process in the future, not solely due to the judiciary’s shortcomings.
A primary concern is the ambiguity surrounding the execution of Ukrainian court decisions and the overall role of Ukraine’s courts in the compensation process for damages caused by aggression. The judiciary is – for various reasons, possibly political – sidelined from the development of relevant compensation mechanisms either at national or international levels. Notably, the Working Group on the Development and Implementation of International Legal Mechanisms for Compensation for Damages Caused to Ukraine as a Result of Armed Aggression by the Russian Federation, established by the Decree of the President of Ukraine of May 18, 2022, does not include a single judge.
The lack of transparency and openness in developing compensation mechanisms represents a systemic issue within the entire process. Political authorities might attribute not involving of judges to corruption scandals and a low level of public trust in the judiciary. Nonetheless, the fact that Ukrainians are turning to the courts as a single and clear mechanism for the protection of their rights in this context indicates their view of the judiciary as a vital means of safeguarding their rights and freedoms.
However, the existence of court rulings does not assure victims of any concrete outcomes, as it remains uncertain how and when the decisions will be enforced, and the actual payments made. Given that the only apparent source for enforcing these decisions is the sovereign assets of the Russian Federation located within Ukraine, their future use for compensation, even after potential confiscation, is yet to be clarified. Ukraine is currently at all the levels promoting the establishment of an international compensation mechanism, which would potentially include a Compensation Fund where all confiscated assets would ideally be allocated.
When considering a future international compensation mechanism or any other suggested model, it is necessary to decide what status the decisions of Ukrainian courts should have when paying compensation. This will guarantee the rights of victims who have applied for protection to the national judiciary and support the authority of Ukraine’s justice system.
Thus, it is crucial to ensure that the judiciary finds its role within this framework. Without such integration, there may be long-term disillusionment and additional emotional distress for victims of Russian aggression who have received favorable court decisions. This situation could also escalate social tensions surrounding this issue, potentially creating divisions between those who do and do not have court orders, those who find their orders enforced and those who do not, and thereby undermining the very purpose of a reparations scheme: to begin repairing the harms suffered under the destruction of war.
[1] See The Resolution of the Supreme Court of 18 May, 2022, in case No. 760/17232/20-ц. Since the Unified State Register of Court Decisions of Ukraine is not available abroad, only the names and numbers of cases are listed here.
[2] See Decision of the Shevchenkivskyi District Court of Kyiv on May 22, 2023, in case No. 761/7131/23.
[3] See Decision of the Commercial Court of Kyiv of July 7, 2023 in case No. 910/6598/23
[4] The Decision of the Shevchenkivskyi District Court of the City of Kyiv of May 22, 2023 in case No. 761/7131/23