The UN General Assembly supported the creation of a compensation mechanism that would allow the use of Russian assets to pay victims of Russia’s invasion of Ukraine. Earlier, the Parliamentary Assembly of the Council of Europe (PACE) also adopted a historic resolution regarding the actions of the aggressor country. It also called for the creation of a comprehensive international compensation mechanism. At the same time, both documents indicate the first step of such a mechanism – the international register of damage. Let’s figure out how it will work.

Historical foundations

International law in matters of compensation for damages is based on the principles developed as a result of consideration of individual cases that have become historical. One of the basic episodes is the case of the Chorzow plant. It was considered by the Permanent Court of International Justice back in the 1920s.

The dispute concerned the transfer of property from Germany to Poland after the territorial changes following the First World War. It was in this case that the main principle was formed, which formed the basis for further work with compensation: “the correction of the violation should, if possible, eliminate all the consequences of the illegal act and restore the situation that existed in the situation if there were no illegal acts.” Simply put, compensation should be sufficient to return to the original state.

But this is a principle, but how to achieve its implementation? The Ukrainian side in the creation of an international register of damage relies on the approaches used in the case “Regarding the legal consequences of building a wall in the occupied Palestinian territory”, and also uses the experience of the Compensation Commission for the Iraqi-Kuwait conflict and the Eritrean and Ethiopian Claims Commission.

The United Nations Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory is an international structure established under the auspices of the United Nations. The main headquarters is in Vienna. The main task is to carefully account for the damage caused by the construction of the wall in territories that the UN does not recognize as Israeli. From 2006, when the registry began, until May 31, 2022 (last publicly available data), 73,235 episodes and over a million documents have already been collected. Meanwhile, the work continues.

With regard to the Eritrean-Ethiopian Claims Commission, it has already completed its activities. The commission, formed following a two-year war (1998-2000), worked from 2000 to 2009 and in total issued 15 partial and final decisions on liability and damages. The commission was based in The Hague.

Ukrainian approach

Ukraine’s current proposal is to create a similar structure – the Register of Damage for Ukraine (RD4U). It will also be based in one of the EU countries, while operationally and financially independent of the UN structures.

It is assumed that the Register of Damage in Ukraine will consist of a Secretariat with administrative functions and a Commission with supervisory and judicial functions.

The Secretariat will be staffed by legal advisers, data analysts, IT specialists, legal and administrative assistants. The Commission itself will be composed of international experts in relevant areas of international law. They will be engaged in collecting claims and their evidence, reviewing and evaluating the claims received, and monitoring the work of the Secretariat.

What claims will be considered? It is worth remembering that at the end of the summer, the Ministry of Digital Transformation, together with the Ministry of Infrastructure, presented the “Register of Damaged and Destroyed Property”, which contains information about damage to real estate as a result of hostilities. Information from there will also fall into the international register. However, RD4U will cover other areas as well.

It is expected that the claims of displaced persons will be considered; victims of war crimes; received bodily injuries; the next of kin of the deceased; claims for damage or loss of property. At the same time, there will be two separate directions for the last category: up to a certain amount and above this threshold.

Claims of individuals and legal entities, as well as those filed by the government of Ukraine (and possibly other governments), including for damage to infrastructure and the environment, will be considered.

International experience will also be used to ensure that the work does not drag on for years. To speed up the work, the commission will be able to use the methods of processing collective or mass claims. Jurisdiction covers all cases after February 24, 2022 until the end of hostilities.

Priority: justice

The creation of the Register of Damage in Ukraine is an important step towards restoring justice for all those affected by the war. An international group of lawyers is working on its creation, and the main legal support is provided by international lawyer Markiyan Klyuchkovsky (Partner of Asters Law Firm) in a group with lawyers, academicians and practitioners. What the structure will look like in the end depends not only on Ukraine, but also on the partner countries that want to support us.

No less important, the case of the war in Ukraine is perhaps the first in history when the collection of information about the damage and the launch of international compensation processes began even before the end of hostilities. On the one hand, this will help us start the reconstruction of the country as quickly as possible. On the other hand, this is clear evidence that the world believes in our victory and is already planning a post-war order, where Ukraine will receive all the necessary compensation.

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