Western and Ukrainian rhetoric claiming Russia will be required to pay reparations for the damage caused by its invasion of Ukraine is not backed by a coherent roadmap based on international law to achieve justice for Ukraine’s victims, a new report prepared by the British thinktank Ceasefire has warned .
The report, one of the first detailed studies on how reparations for Ukraine might work, says little progress has been made in setting up a global mechanism to require Russia to pay compensation and says the delays must end.
It says it is remarkable how far plans are lagging in comparison with the number of war crimes investigations being launched, even though history suggests the numbers of Russian soldiers or politicians likely to be prosecuted is low.
The Ceasefire report says payment of state reparations is well established in international law but basic questions remain to be answered.
Questions that need answering include: “What form should such repairs take? To whom would they be made and on what authority? What sort of mechanism could be entrusted to take on the task of awarding and administering reparations on such a scale? Where will the money come from?”
Ceasefire’s director, Mark Lattimer, proposes a UN general assembly or multilateral mechanism to take charge of administering reparations to civilian claimants, with the UK and other national governments using national and international law to put sanctions on assets to make Russia pay.
“The legal obligation to pay reparations falls most heavily on Russia, but self-evidently it will not pay of its own accord. The example of the Iran-US claims tribunal set up in the wake of the US embassy hosting crisis shows, however, that sanctioned assets can be used as leverage to ensure that reparations are paid – or in the alternative those assets could be used to pay repairs directly.”
The report finds for differing reasons that neither the international court of justice, the international criminal court nor the European court of human rights “are in a position to award reparations any time soon with the scope and scale required by the conflict in Ukraine”. It suggests the UN general assembly does have powers following an example in Syria to set up an investigating body to determine reparations, but even then the UN body would have no power of enforcement. “Russia’s veto-wielding power means that the UN security council – and with it the UN system – is effectively prevented from taking enforcement action against Russia.”
The lack of consensus on reparations has led individual national legislatures to start ad hoc proceedings. The US and Canada have begun legal steps whereby reparations could be paid, by repurposing frozen assets, including yachts and property, held overseas by Russian oligarchs. The EU has so far set out plans that largely focus on criminal accountability, as opposed to financial redress, for Russia’s war crimes and other breaches of humanitarian law. Germany alone, for instance, claims to have frozen €4.5bn (£3.9bn) of Russian assets since May.
It is a major step to move from simply freezing an oligarch’s assets to seizing them, and then handing them to an international body to pay reparations to the Ukrainian people, especially if there is little evidence that these private assets were gained corruptly.
The second source of potential revenue is the $300bn (£250bn) of Russian central bank reserves held in G7 territories.
There is resistance in Europe, and British Conservative circles, to the simple seizure of Russian bank reserves. The former Conservative foreign secretary Sir Malcolm Rifkind, a strong supporter of Ukraine, admitted he had concerns about the impact on faith in the global financial system. He said: “We are a country that believes in the rule of law and due process. You do not confiscate other people’s assets on a political judgment on the spur of the moment just because you feel sorry for people. It creates a very very disturbing previous. The consequences go far beyond Ukraine.”
Although the US has seized state assets in the cases of Afghanistan, Iraq, Iran and Venezuela, it has not yet declared Russia a state sponsor of terrorism, illegitimate or an adversary in a declared war, the previous legal bases for their seizure of assets.
The Ceasefire report proposes that it would be better that Russia’s arm was twisted to make it pay reparations “voluntarily”, by making the lifting of global sanctions contingent on payment, as opposed to a straightforward clause in a humiliating peace agreement. This could follow the model used after the Iraqi invasion of Kuwait in 1990 and carve out a set slice of oil revenue to pay for reconstruction costs.
Dedicating a proportion of Russian oil revenues to compensation – as Iraq was required to do to fund a UN compensation commission – might, for example, prove more advantageous to Russia than being forced to sell its oil at a discount, the report suggests.
“As the combined effect of sanctions produces severe economic contraction and, according to predictions by the Bank of Russia, ‘years of reverse industrialisation’, the incentives to come to the negotiating table could well intensify.”
But the body that was used to transfer the Iraq cash – the UN compensation commission – has just been closed down, and it is unlikely Russia would allow a new body to be established.