On November 14, the UN General Assembly adopted resolution A/RES/ES-11/5 “Furtherance of Remedy and Reparation for Aggression against Ukraine” [1]. By this document, the UN General Assembly confirmed its support for the sovereignty of Ukraine and its territorial integrity within internationally recognized borders and called on the aggressor state to immediately, unconditionally and completely withdraw its troops from the territory of Ukraine within these recognized borders.
UN GA recognized that the Russian Federation is responsible for any violations of international law committed against Ukraine, including aggression, violations of international humanitarian law and international human rights law, and that it must accept the legal consequences of its illegal actions. One of these consequences is the obligation to pay reparations for any damage caused by such actions.
The General Assembly recognized the need to create, in cooperation with Ukraine, an international mechanism for compensation for damages and losses caused by international illegal acts of the Russian Federation in Ukraine and against Ukraine. Finally, it recommended that member states, in cooperation with Ukraine, to create a Register of Damage that is to serve as a record, in documentary form, of evidence and claims information on damage, loss or injury to all natural and legal persons concerned, as well as the state of Ukraine, caused by Russian Federation’s internationally wrongful acts in or against Ukraine, as well as to promote and coordinate evidence gathering.
Of course, in a political sense, this is a victory, and the leaders of Ukraine hastened to announce that Russia will definitely pay for its crimes [2] [3]. We have no doubt that this will happen eventually, but the recovery process will be lengthy. Let us not forget that Germany is still paying reparations for Nazi crimes. As a result, the latest UN General Assembly resolution should be regarded as the first step toward the long-term operation of the compensation mechanism for the damage caused to Ukraine and Ukrainian citizens as a result of aggression. ARC’s expert Oleksiy Plotnikov, International Judiciary, researched this issue.
The General Assembly’s decisions are not legally binding as minimum in their major part. According to Article 11 of the UN Charter, at the request of a UN member state, the GA may discuss and make recommendations on issues related to the maintenance of international peace and security [4]. However, maintaining international peace and security is not its primary function; the Security Council is in charge of that.
The appeal to the General Assembly is a forced measure, as the Security Council was unable to fulfill its primary function of maintaining international peace and security under the current UN configuration. It could reach a binding decision, but Russia’s “veto”, that aggressor allegedly has, prevents it. Ukrainian diplomacy, with the support of allies, is working to deprive the aggressor of his exclusive opportunities and ARC wrote about it [5], but Ukraine is currently unable to obtain Security Council actions in its favor. This does not, however, imply that other UN mechanisms, such as the General Assembly, should be abandoned.
The UN General Assembly resolution, which is primarily political in nature, paves the way for the establishment of legal reparations mechanisms in Ukraine’s favor. First, there is the mechanism itself. Its specific characteristics have yet to be determined, and there is obviously much room for legal work, but the legal decision to establish such a mechanism will be based on the political decision expressed in the General Assembly resolution.
Second, the creation of a damage registry indicates a specific direction of work here and now. This is the collection of evidence regarding the damage done and the creation of a database that will allow the abstract concept of reparations to be translated into compensation for concrete material and moral damage. The UN as an organization is not required to participate in the creation of such a register. The resolution suggests that Ukraine create it in collaboration with other interested member states. In other words, the corresponding registry can be launched quickly.
The fact that the UN General Assembly has recommended its creation should attest to the authority of such a database, and its development through bilateral or multilateral agreements will avoid political drag. It should be noted that for a long time, Ukrainian, foreign, and international non-governmental organizations, the Ukrainian government, and, to a lesser extent, the governments of other countries, have been collecting data on violations of human rights, international humanitarian law, and damage caused by aggression.
It will not be about beginning to build a database of violations and damage, but rather about combining the already accumulated array of data into a single system that will be constantly updated and supplemented. As a result, when the compensation mechanism is activated, it will have all of the necessary information.
Despite the temptation to compare Putin’s regime to Hitler’s, the closest analogy of the current war from the standpoint of international law is Baathist Iraq’s attack on Kuwait led by Saddam Hussein. This is the only instance since 1945 in which one sovereign country occupied another sovereign country’s undisputed and internationally recognized territory and declared its annexation, while also maintaining control over the occupied territory for an extended period of time.
Of course, Ukraine is larger than Kuwait, and the aggressor will never be able to completely occupy it, but for international law, it makes no difference whether the aggression resulted in the full or partial occupation of one country by another. Aggression, occupation, and other violations of international humanitarian law and human rights law are all international crimes. The result of an international illegal act is always the obligation of the state to fully compensate for the damage caused, both material and moral [6].
Following the liberation of Kuwaiti territory from occupation in early 1991, the Security Council established the UN Compensation Commission [7], which officially concluded its operations on February 22, 2022, collecting a total of 52.4 billion dollars for the benefit of compensation to the victims.
It is unlikely that the process of paying reparations for Russian aggression will take less time than it did in Kuwait. However, delays are unacceptable here, because many victims may never see the compensation. At the same time, the Security Council is paralyzed by Russia’s right of veto, making it impossible to follow the familiar path of the Kuwait commission. As a result, Kuwait’s experience has only a limited application in Ukraine.
Legally and organizationally, Ukraine’s reparations scheme will differ from Kuwait’s, but there are at least two areas where Kuwait’s experience will be useful. Firstly, it demonstrates the possibility of obtaining compensation through international mechanisms. Secondly, it shows practical methods for obtaining funds from the aggressor in order to compensate the victim. Thus, in the Security Council resolution on Kuwait [7], it was stated that payments to the Kuwait compensation fund should be collected in the form of interest on oil and oil product exports. Given the aggressor state’s economy’s reliance on mineral exports, collecting a portion of such revenues may prove to be an appropriate form of reparations payment to Ukraine.
The transfer to Ukraine of a portion of the Russian Federation’s oil and gas revenues appears capable of providing a stable source for replenishing the reparations fund in favor of Ukraine and individuals and legal entities affected by the aggression, but such a prospect now appears remote. An appealing alternative is to directly levy the aggressor state’s funds and property, as well as legal entities and individuals associated with the Russian terrorist regime abroad. This is considered a very real option in some publications [9], [10].
It appears that confiscation of Russian assets is subject to individual state legislation. Thus, American and Ukrainian commentators have repeatedly considered the possibility of foreclosing on Russian assets in the United States [11]; [12]. Canada approved the relevant legislation but appears to be taking its time implementing it [13]. There have been reports of discussions about confiscating Russian assets in favor of Ukraine and other countries, such as Lithuania [14]. International law seems to be developing on this issue [15].
Of course, each situation is unique, and the presence of some issues with seizing Russian assets in order to provide reparations to Ukraine in national and international jurisdictions of course does not rule out this possibility. However, developing a legal mechanism and avoiding risks will almost certainly require as much effort as creating a compensation mechanism in the UN.
The introductory section of the new UN General Assembly resolution refers to a number of documents adopted in 2022: resolutions of the General Assembly, a decision of the United Nations International Court of Justice in the case of Ukraine’s claim regarding the aggressor’s misuse of the concept of genocide, and others. The resolution may give the impression that it refers to events that occurred after February 24, 2022 but omits the fact that aggression against Ukraine began in 2014, with the occupation of Crimea. However, such an initial impression is incorrect.
Several points in the text make it clear that it is about reparations for all violations committed against Ukraine, its citizens, and legal entities since February 2014. First, the document adopted by the UN General Assembly explicitly states that the Russian Federation must withdraw all of its armed forces from Ukraine’s territory within its internationally recognized borders immediately, completely, and unconditionally. As the General Assembly correctly points, such borders include all territories of the Donetsk and Luhansk regions, as well as the AR Crimea and Sevastopol.
This is confirmed by a reference in the resolution to another UN General Assembly resolution adopted on October 12, 2022, titled “Territorial Integrity of Ukraine: Protecting the Principles of the United Nations Charter”. The latter, in turn, refers to the March 27, 2014 resolution “Territorial integrity of Ukraine” [16], which deplores the so-called “referendum” held in Crimea on March 16, 2014 and declares non-recognition of any territorial changes based on this “referendum”.
As it turns out, the reparations resolution actually includes two resolutions on Ukraine’s territorial integrity, one of which explicitly states that the occupation of Crimea is illegal. As a result, the call to establish a reparations mechanism for damage “arising from international illegal acts of the Russian Federation against Ukraine” applies to all such acts beginning in February 2014 and covers the Russia-occupied peninsula.
Finally, the reparations resolution refers to the Order of the International Court of Justice of March 27, 2022 in the case of Ukraine’s claim against the Russian Federation regarding the manipulation of the concept of genocide to justify aggression. The World Court stated in this order that Ukraine’s unjust accusations of genocide to justify Russian aggression have been ongoing since 2014.
As a result, the text of the UN General Assembly decision in no way limits the time of infringement for which reparations should be made to 2022. On the contrary, it plainly suggests that reparations are intended for any unjust acts committed in 2014 and after. When reparations are paid, the aggressor’s Crimean bill will become the an integral part of the overall calculations.
- https://www.un.org/pga/77/wp-content/uploads/sites/105/2022/11/Draft-UNGA-UA-RoD-07-Nov-2022.pdf
- https://suspilne.media/213309-govorimo-rosii-vcit-slova-reparacii-ta-kontribucii-zelenskij/
- https://twitter.com/andriyyermak/status/1592223591931990018
- https://www.un.org/en/about-us/un-charter/full-text
- https://arc.construction/35475?lang=ru
- https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf
- https://uncc.ch/sites/default/files/attachments/documents/res0687.pdf
- https://uncc.ch/
- https://dc.org.ua/news/so-dla-ukraini-oznacae-rezolucia-genasamblei-oon-pro-vidskoduvanna-rosieu-zbitkiv-zapodianih-ukraini
- https://www.pravda.com.ua/columns/2022/11/16/7376632/
- https://www.lawfareblog.com/giving-russian-assets-ukraine-freezing-not-seizing
- https://www.eurointegration.com.ua/rus/experts/2022/11/7/7149946/
- https://cz.ua/uk/news-uk/pershii-pishov-kanada-stvorila-normati/
- https://www.ukrinform.ua/rubric-polytics/3612326-smigal-obgovoriv-iz-delegacieu-sejmu-litvi-stvorenna-spectribunalu-i-konfiskaciu-aktiviv-rf.html
- https://www.icj-cij.org/en/case/143
- https://documents-dds-ny.un.org/doc/UNDOC/GEN/N13/455/17/PDF/N1345517.pdf
