There are no signs that the war in Ukraine is coming to an end. Despite this, the international community is already wondering how to obtain financial compensation from Russia for the war damage caused by its troops in Ukraine. On November 14, during the session of the UN General Assembly, 94 States supported the text of the resolution on this issue. 14 countries voted against and 73 abstained.

Ukrainian Prime Minister Denys Shmyhal in September estimated the direct material losses suffered by Ukraine as a result of the Russian invasion so far at $326 billion. The politician assured that the calculations had been verified by experts from the World Bank. The amount will continue to grow until the end of the conflict.

The Russian side sees things differently. Vasily Nebenzia, Russia’s permanent representative to the UN, said the resolution was “legally meaningless”.

When repairs are paid

Reparations are the payment of compensation by the State which has committed criminal acts and thus caused damage. The amount of reparations and the mode of payment are determined by international institutions or are enshrined in peace treaties after the end of the war, explains Paul Gragl, an expert in international law at the University of Graz.

One of the most famous acts of reparation are the sums paid by Germany following the loss of the First World War. At stake were claims of 132 billion gold marks, which were to be paid over the next few decades. The Federal Republic of Germany, the legal successor to the German Reich, sent the last transfer of this sum in 2010. Still after losing World War II, Germany had to pay reparations to the Allies.

There are several other examples of reparations in recent history. One is Iraq’s reparations to Kuwait for the 1990-91 occupation. They were applied on the basis of a resolution adopted by the UN Security Council.

– He sees this case as a precedent, to which Serhiy Kyslytsa, the Permanent Representative of Ukraine to the UN now also refers – explains Paula Rhein-Fisher of the European Academy for the Protection of Human Rights in the University of Cologne.

Russian missile attacks regularly damage Ukrainian cities and critical infrastructure

How to make Russia pay?

UN General Assembly resolutions are not legally binding. Rather, they have a political significance, as they reflect the opinion of the international community. In this way, political intentions are expressed so that it is not forgotten that Russia, as an aggressor, will be obliged to repair this damage, says Paul Gragl.

Paula Rhein-Fischer also sees the resolution mainly as a political signal. It will be difficult to force Russia to pay reparations using available international mechanisms. – There is a clear jurisdictional issue with the UN International Court of Justice (whose decisions are final). He can only decide if both states agree to become parties to the proceedings, he points out. And Moscow categorically rejects such a scenario.

– A legally binding decision on reparations could also be taken by the International Criminal Court (ICC) in The Hague – continues the expert. Its mandate is limited to dealing with four specific crimes: genocide, crimes against humanity, war crimes and aggression. However, for the court to prosecute crimes of aggression (which could bring the decision on reparations closer), a UN Security Council resolution is required. And certainly Russia, which is a permanent member of the Council, will veto such a resolution.

Paula Rhein-Fischer from the University of Cologne

Indictments against Russian officials for other crimes committed under the jurisdiction of the ICC are already being investigated, but one must be prepared that the investigations will take a long time.

Paula Rhein-Fischer points to a third institution that could theoretically compel Russia to pay reparations. This is the European Court of Human Rights (ECHR). However, Russia left the Council of Europe in September 2022 and has not been subject to ECHR rulings since then. The court could only demand that the Russian Federation pay compensation to Ukraine for the damage caused from February to September of this year, the expert explains.

On the other hand, according to the experience of recent years, Russia should not be expected to comply with a possible judgment of the ECtHR. – Furthermore, it is not clear whether the European Convention on Human Rights applies to ongoing conflicts. At the moment, it seems unlikely that the Russian Federation will pay reparations in the near future, the expert concludes.

Russian assets as reparations?

Discussions are also underway over whether Russian assets frozen as part of the sanctions imposed on Moscow could be used to pay for reparations. This mainly concerns the foreign assets of the sanctioned companies and individuals, as well as the foreign exchange reserves of the Russian central bank.

“There is, of course, a legal difference between freezing and confiscating assets,” says international law expert Paul Gragl.

“The freeze is only a temporary effect. In turn, seizing Russian assets as reparations would not work without a legal basis, says Paula Rhein-Fischer. However, a suitable international arbitration board does not yet exist, and a decision to seize assets in this way by national courts would lead to major legal complications.

Repossessed Russian property will not be easy to allocate as compensation (file photo)

Perhaps a new international mechanism could help here. We read about its creation in the text of the UN resolution of November 14 of this year. Ukrainian Deputy Justice Minister Iryna Mudra previously said that thanks to this, many countries could “move from discussion to action”.

At the same time, as Paula Rhein-Fischer points out, public assets, in this case also Russian foreign exchange reserves, are protected by international law against seizure. However, the UN resolution may be an opportunity to include a provision in treaties between Ukraine and third countries that would deprive Russia of such immunity.

“In my opinion, this point raises legal doubts because treaties cannot be concluded to the detriment of a third party,” says Paula Rhein-Fischer. In this case, the third party would be Russia.

– Another question is whether such a practice could lead to changes in already existing norms of customary international law – continues the expert.

A peace treaty would be better

According to Paula Rhein-Fischer, it would be less problematic from a legal point of view to lift the sanctions against Russia in exchange for agreeing to pay reparations. And the ideal solution would be a peace treaty concluded between the parties, in which Russia would undertake to pay compensation for the damage it has caused.

“Unfortunately, this is unlikely in the current situation,” he concludes.

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