Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 78
Julio
Septiembre
2023
ISSN 0798-1406 ~ Depósito legal pp 198502ZU132
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Vol. 41, Nº 78 (2023), 690-747
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 21/04/23 Aceptado el 07/07/23
Expropriation and other forms of
reparation in terms of compensation for
damage caused as a result of war crimes:
International legal experience
DOI: https://doi.org/10.46398/cuestpol.4178.49
Liydmyla Panova *
Ernest Gramatskyy **
Dmytro Baranenko ***
Dmytro Sichko ****
Oleksiy Ulianov *****
Abstract
As a result of international armed conicts, questions always
arise about the payment of post-war reparations. Although the
process of reparation for damages caused as a result of war crimes,
in most cases, begins only after the end of such a conict, its
duration and eectiveness depend on the preliminary analysis and choice
of an existing reparation or development of a new model. The purpose of the
work was the analysis of existing mechanisms for the payment of post-war
reparations, and the search for the most eective models of compensation
for Ukraine by Russia for the damage caused as a result of military aggression
and the commission of international crimes. The dialectical, systemic-
structural, historical, comparative, logical-formal, comparative-legal and
systemic-functional methods were used. In the results, the legal nature and
historical mechanisms of reparation of damage are explained, as well as
problematic issues of this institution of the law of international liability are
outlined. In the conclusions, dierent mechanisms of reparation that can
be used by the State and those available to individuals, victims of violations
of international crimes committed on their territory and mixed models are
considered.
*Ph. D., Associate Professor of Civil Law Department, Taras Shevchenko National University of Kyiv
(Kyiv, Ukraine). ORCID ID: https://orcid.org/0000-0002-1393-8626
** Ph. D., Associate Professor of Civil Law Department, Taras Shevchenko National University of Kyiv
(Kyiv, Ukraine). ORCID ID: https://orcid.org/0000-0003-1260-2888
*** Doctor of Legal Sciences, Associate Professor, Head of the Department of Theory and History of State
and Law of Admiral Makarov National University of Shipbuilding (Ukraine). ORCID ID: https://orcid.
org/0000-0002-9626-9607
**** Ph. D., Associate Professor of the Department of Civil and Criminal Law and Procedure of the Petro
Mohyla Black Sea National University (Mykolayiv, Ukraine). ORCID ID: https://orcid.org/0000-0002-
***** Ph.D., in Law, Associate Professor, Honored Worker of Science and Technology of Ukraine (Odesa
State University of Internal Aairs, Odesa, Ukraine.). ORCID ID: https://orcid.org/0000-0002-3397-
0965
7872-9120
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CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 732-747
Keywords: expropriations; reparations; compensation; international
liability; war crime.
Expropiación y otras formas de reparación en
términos de compensación por daños causados como
consecuencia de crímenes de guerra: Experiencia jurídica
internacional
Resumen
Como resultado de los conictos armados internacionales, siempre
surgen interrogantes sobre el pago de las reparaciones de posguerra.
Si bien el proceso de reparación de daños causados como resultado de
crímenes de guerra, en la mayoría de los casos, comienza solo después del
nal de dicho conicto, su duración y efectividad dependen del análisis
preliminar y la elección de una reparación existente o desarrollo de una
nueva modelo. El propósito del trabajo fue el análisis de los mecanismos
existentes para el pago de las reparaciones de posguerra, y la búsqueda
de los modelos de compensación más efectivos para Ucrania por parte de
Rusia, por los daños causados como resultado de la agresión militar y la
comisión de crímenes internacionales. Se utilizaron los métodos dialécticos,
sistémico-estructural, histórico, comparativo, lógico-formal, comparativo-
jurídico y sistémico-funcional. En los resultados, se explica la naturaleza
jurídica y los mecanismos históricos de la reparación del daño, así como
se esbozan cuestiones problemáticas de esta institución del derecho de
la responsabilidad internacional. En las conclusiones, se consideran
diferentes mecanismos de reparación que puede utilizar el Estado y los que
están a disposición de los particulares, víctimas de violaciones de crímenes
internacionales cometidos en su territorio y modelos mixtos.
Palabras clave: expropiaciones; reparaciones; indemnizaciones;
responsabilidad internacional; crimen de guerra.
Introduction
Taking into account the position of the Russian Federation, which
consists of its reluctance to be responsible for committing international
crimes and the need to receive compensation for damage by Ukraine,
it is important to carry out a deep analysis of the possibilities of paying
reparations to the aggressor. On the one hand, Ukraine should not count on
692
Liydmyla Panova, Ernest Gramatskyy, Dmytro Baranenko, Dmytro Sichko y Oleksiy Ulianov
Expropriation and other forms of reparation in terms of compensation for damage caused as a
result of war crimes: International legal experience
voluntary payment of reparations by the aggressor. Even if the corresponding
provision is established in the ephemeral cease-re agreement, it seems
unlikely that Russia will cover the damage caused by Russia.
On the other hand, Ukraine needs to take into account the limited list
of international mechanisms that will allow it to receive compensation,
as well as to ensure the availability of sources where such compensation
can be obtained. However, despite the lack of compensatory instruments
and the ineciency of the institutional security system in Europe and the
world in general (Tkalych and Arbelaez Encarnacion, 2022), we can analyze
some potential opportunities for collecting reparations from the aggressor
country.
By its legal nature, reparations are full or partial compensation by the
state that launched the aggressive war for the damage caused to the state
that was attacked. That is, if one country attacked another, occupied its
territory in whole or in part, destroyed part of the population, or destroyed
industry and infrastructure, it must pay for it and compensate for the
damage caused.
That is, international law guarantees victims of aggression adequate
compensation - reparations. In turn, expropriation consists of
nationalization, requisition, and/or conscation. Currently, Ukraine,
together with its partners, is developing mechanisms for expropriation and
other forms of reparations. In general, international law only in general
terms regulates the principles of recovery of assets, and therefore the
correct legal procedure is a task for states.
Given the above, it is important to examine existing models of
reparations collection, as well as those models historically used by states to
obtain reparations.
The article analyzes the mechanisms for obtaining compensation,
namely, attention is paid to how many there should be, who created them,
and how their activities are regulated. The political side of such actions is
also noted.
The methods of obtaining compensation are analyzed in detail,
including lawsuits to the European Court of Human Rights (ECHR), the
International Court of the United Nations, and the International Criminal
Court, consideration of the issue of compensation within the relevant UN
committees.
Also, the possibilities of contractual settlement of reparations and the
peculiarities of the functioning of compensation mechanisms within the
framework of the UN Security Council were investigated by the authors.
Prospective directions for reforming reparations collection mechanisms
and problematic issues in this aspect were noted.
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1. Theoretical Framework or Literature Review
During the study of the international legal experience of the application
of expropriation and other forms of reparations in terms of compensation
for damage caused as a result of war crimes, the works of the following
researchers were analyzed: Volyanska, Koshman, Pavlovska, Rashevska,
Sudachek, Khutor, Shapovalova, Shulyak, Emerson, Blockmans, Lawder.
In the work of Volyanska (2022), a step-by-step algorithm for
compensation for damages caused by the armed aggression of the Russian
Federation is considered. In particular, the lawyer draws attention to the
fact that there are additional factors that aect the destruction of property,
and therefore the introduction at the legislative level of the presumption
of guilt of the Russian Federation for the destruction of the property of
Ukrainian legal entities and individuals as a result of the armed aggression
of the Russian Federation is necessary because it aects the establishment
of causal consequence and resolution of the issue of compensation for
losses at the expense of the Russian Federation.
Koshman (2022) conducted a review of national and international
mechanisms for the protection of property rights violated due to Russian
aggression. The researcher analyzed judicial and extrajudicial methods of
protecting property rights, as well as investigated potential mechanisms for
compensation of damages and concluded that currently there is no clear,
unequivocal answer to the question of which court or which competent
authority it is advisable to contact to receive real compensation.
Poland’s experience in receiving reparations from Germany was
analyzed by Pavlovska (2022). Rashevska (2022a, 2022b) studied in detail
both judicial and contractual mechanisms for reparations and analyzed
international models and mechanisms for payment of reparations:
international experience and ideas for Ukraine. The author concluded
that regardless of which model of compensation Ukraine chooses to
receive reparations from the Russian Federation, it is important to take
into account the specics of the existing situation, as well as the fact that
the Russian Federation remains a permanent member of the UN Security
Council with the right of veto, and also preserves the existing political
regime, and therefore, the reparations payment mechanism must have a
sound legal basis.
In the opinion of the author, it is considered most expedient to provide a
corresponding obligation for the Russian Federation in the future Ceasere
Treaty, which would contain a clause on the mandatory jurisdiction of the
UN IC. The aforementioned agreement should also introduce a special body
(for example, the Compensation Commission), in which Ukraine’s Western
partners would act as members and guarantors.
694
Liydmyla Panova, Ernest Gramatskyy, Dmytro Baranenko, Dmytro Sichko y Oleksiy Ulianov
Expropriation and other forms of reparation in terms of compensation for damage caused as a
result of war crimes: International legal experience
Also, in the author’s opinion, the existing multi-link system of
compensation funds at the national level should be reviewed, simplied as
much as possible, sources of income diversied, transitioned from volunteer
foundations to investment, and nally harmonized with initiatives at the
international level.
Sudachek (2022) investigated the post-war reconstruction of the Federal
Republic of Germany in the context of the payment of reparations and the
restoration of Ukraine. The author states that the history of the restoration
of the Federal Republic of Germany can hardly be a model for Ukraine.
The very approach of the post-war economic reconstruction of Germany
was based on the consistent structural development of democratic practices,
which formed the basis of the new Constitution, to avoid the rise to power
of authoritarian (and communist) forces, and the Marshall Plan became an
important impetus for the economic development of Germany, but a much
larger role was played by competent monetary policy and the political will
to implement all other reforms (in particular, the launch of the free market).
Khutor (2022) analyzed the peculiarities of the conscation of property
of Russians and Belarusians on the territory of Ukraine. Thus, the author
noted the essence of the law and the idea of sanctions: a collection of assets
belonging to individuals or legal entities, as well as assets that they can
directly or indirectly dispose of, into state income.
The activity of the International Criminal Court, as well as the
International Court of the United Nations in solving war crimes, in
particular, the problems of compensation for damage caused by such
crimes, was considered by Stupnyk et al., (2022).
The peculiarities of the functioning of the international register of
damages as a prerequisite for the payment of reparations were analyzed
by Shapovalova (2023). The author noted that after the Supreme Court
indicated that Russia does not have judicial immunity in tort claims
as a result of armed aggression against Ukraine, and the dispute about
compensation for damages can be considered and resolved by a court of
Ukraine, Ukrainian citizens and businesses led more than 150 lawsuits
against Russia about compensation for damages to the courts of Ukraine.
Also, the author noted that the reparation mechanism for Ukraine
will work with the careful documentation of damages by an independent
international institution, and therefore it is important that a compensation
commission and a fund for timely payment of victims’ claims be created
as quickly as the registry. At the same time, potential applicants need to
understand that the process of gathering evidence, proving the facts, and
the extent of the damage is up to them.
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Shulyak (2022) analyzed the peculiarities of the evaluation of objects
destroyed and damaged as a result of the military aggression of the Russian
Federation. In the work of Emerson and Blockmans (2022), proposals were
put forward for compensation for the damage caused by war crimes of the
Russian Federation. The same ideas are considered in the work of Lawder
(2022) taking into account foreign experience.
2. Methodology
The use of the dialectical and systemic-structural method of learning
about social processes made it possible to consider reparations in their
systemic connection with other ways of compensation for damage caused
by military armed aggression by the Russian Federation. In addition, the
use of the dialectical method of cognition allows one to understand the legal
nature of various models of reparations collection in their development
and cause-and-eect relationship. At the same time, the application of the
system-structural method, which is based on the consideration of the object
as a whole set of elements and a set of relations and connections between
them, served as a method not so much for solving, but for setting tasks.
Through the application of historical and comparative methods, the
genesis of the use of such a compensation mechanism as reparations
was studied, and it was also noted what conditions and historical events
contributed to the implementation of eective tools for compensation for
damage caused by war. In general, a historical method is based on the study
of the emergence, formation, and development of objects in chronological
order.
Thanks to the use of the historical method, a deeper understanding of
the essence of the problem is achieved and it becomes possible to formulate
more reasonable recommendations for the new object. Therefore, the
historical method was used in the study of the historical prerequisites for
the implementation of various mechanisms for the collection of reparations
in international law at various stages of its development.
The formal-logical method served as a guiding principle that contributed
to clarifying and clarifying the content of certain concepts and research
categories (reparation, compensation for damage, armed conict). Thus,
the formal-legal method allows you to dene legal concepts, identify their
features, carry out classication, interpret the content of legal prescriptions,
etc.
Its specic feature is a distraction from the essential aspects of the law,
and the task that is set at the same time is to clarify and explain the current
legislation, in its systematic presentation and interpretation for law-making
696
Liydmyla Panova, Ernest Gramatskyy, Dmytro Baranenko, Dmytro Sichko y Oleksiy Ulianov
Expropriation and other forms of reparation in terms of compensation for damage caused as a
result of war crimes: International legal experience
and law-enforcement practice. Therefore, the content of the formal legal
method includes legislative techniques and methods of interpretation of
legal norms, as well as the study of those factors and conditions in which
these norms operate and which aect their nature.
The considered method consists of the study of categories, denitions,
and constructions used in law by special legal methods. It provides an
opportunity to study in detail the technical, legal, and regulatory aspects of
law and, on this basis, to professionally engage in legal activities. Therefore,
with the help of this method, an analysis of the norms of current legislation,
both national and international, was carried out, which contributed to the
identication of gaps in it and made it possible to formulate proposals
for improving the legislative regulation of the mechanism of recovery of
damages for violations and destruction due to war.
Given the specics of the formal legal method, it is important to nd
out the specics of the prerequisites for compensation of damages to study
the cause-and-eect relationships, taking into account the laws of logic,
because this contributes to the reliability of the results.
The application of the comparative legal method contributed to a
comprehensive study of the content of the norms that are the basis for the
application of expropriation and reparation in the countries and territories
aected by the war. In the general sense, the comparative legal method is
a method of studying the legal systems of dierent states by comparing the
legal norms, institutions, principles of the same name and the practice of
their application.
The use of the comparative legal method is necessary during the study of
world experience, and knowledge of constitutional and legal phenomena in
the context of existing concepts of legal understanding. Also, the application
of this method made it possible to understand how to eectively establish
the obligation to compensate for the damage caused. Turning to the
system-functional method made it possible to distinguish types of methods
of reparations regulation, as well as problematic issues in this context.
3. Results and Discussion
In the modern conditions of military aggression of the Russian
Federation and the commission of war crimes on the territory of Ukraine,
the legislative regulation regarding the seizure and conscation of the assets
of the aggressor state is changing.
In particular, a law was adopted, the implementation of the norms which
allows for the compulsory seizure in favor of the state of objects of property
rights of the Russian Federation, its residents, natural persons – citizens
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of the Russian Federation, persons who are not citizens of the Russian
Federation, but have a close connection with the aggressor (occurring
residence or are engaged in the main activity in the Russian Federation),
legal entities working in Ukraine, but whose beneciary is the Russian
Federation, and legal entities in Ukraine, in which the Russian Federation
directly or indirectly owns a share in the capital or is the founder or
beneciary (Law 2116-IX, 2022). At the same time, there are international
mechanisms for collecting reparations.
Let’s consider the possibilities for collecting reparations on the example
of international legal experience.
According to Chapter VII of the Charter of the United Nations, the UN
Security Council has the authority to act on threats to the peace, breaches
of the peace, and acts of aggression. Within such powers, a multilateral
commission or mechanism may be established to manage the reparations
process. At the same time, Russia’s right of veto, as a permanent member
of the UN Security Council, makes this mechanism practically ineective
(Unated Nations, 1945). However, the competent authority, including
for consideration of the issue of compensation for damages, may be the
consideration of an interstate case at the UN International Court of Justice.
It is worth noting that during its existence, the International Court of Justice
of the United Nations only made decisions on monetary compensation 4
times, of which only once the case concerned military actions.
Thus, in February 2022, the International Court of Justice of the
United Nations issued a decision in the case of the Democratic Republic
of the Congo against Uganda. Following an oral hearing in April 2021,
the UN International Court of Justice issued its judgment on reparations
on 9 February 2022, awarding US$225,000,000 for personal injury,
US$40,000,000 for property damage, and US$60,000,000 for damage
related to natural resources. The amount of compensation awarded was
only 3% of the declared 11 billion dollars, in particular, Congo’s demands
for compensation for macroeconomic damage to the state were rejected due
to failure to prove a causal link between military actions and damage to the
Ugandan economy (Koshman, 2022).
No less interesting is the experience of collecting reparations from
Poland from Germany. The Sejm of the Republic of Poland called on
Germany to take responsibility — political, historical, legal, and nancial —
for all the consequences of the Second World War. The unilateral statement
of the Council of Ministers of the Polish People’s Republic from 1953 on the
settlement of claims for losses in the war has signicant legal aws because
it was adopted under pressure from the USSR and signed by a body that
did not have the authority to make such decisions. In addition, the Council
of Ministers of the Polish People’s Republic renounced claims to the then
GDR, not all of Germany (Pavlovska, 2022).
698
Liydmyla Panova, Ernest Gramatskyy, Dmytro Baranenko, Dmytro Sichko y Oleksiy Ulianov
Expropriation and other forms of reparation in terms of compensation for damage caused as a
result of war crimes: International legal experience
As for bringing responsibility for war crimes, the experience of using
international tribunals is no less interesting (Table 1).
Use of tribunal mechanisms to prosecute war criminals
The
Nuremberg
Tribunal
operated in Nuremberg from November 1945 to October 1946 against the
leaders of Hitler’s Germany and showed the possibility of international
justice against a criminal political regime, not against a country and a people.
Tokyo
Tribunal
The International Military Tribunal for the Far East (3/05/1946-12/11/1948)
over Japanese war criminals, following the Nuremberg trials in the Eastern
region (International organization for migration, 2008).
International
tribunals
under the
auspices of
the UN
International Tribunal for the Former Yugoslavia (1993)
investigated crimes committed during the wars in the former Yugoslav
republics in 1991-2001. Permanent judges of the tribunal were elected by the
UN General Assembly, deputy judges were appointed by the UN Secretary
General on the recommendation of the UN General Assembly. In addition,
the tribunal for the former Yugoslavia introduced the principle of command
(hierarchical) responsibility - military commanders or ocials could be tried
for the fact that they did not prevent crimes committed by their subordinates
or did not punish them. The jurisdiction of the tribunal included: violations
of the Geneva Conventions, which dene the standards of treatment of
civilians, prisoners, and wounded; violation of the rights and customs of
warfare; crimes against humanity (murder, extermination, deportation,
imprisonment, torture, rape, persecution for political, racial or religious
reasons); genocide. The territorial jurisdiction of the tribunal extended to all
former Yugoslav republics except Slovenia. (USAID, 2022)
International Tribunal for Rwanda (1994) In April-July 1994, the
leadership of Rwanda, represented by politicians and soldiers from the Hutu
people, carried out the mass extermination of several hundred thousand
people from the Tutsi tribe by the Tutsi and the opposition Hutus. Rebels
from the Rwandan Patriotic Front, representing ethnic Tutsi, recaptured
most of the country and the capital by July 1994, prompting a mass exodus of
Hutu to the neighboring Democratic Republic of Congo. Among the fugitives
were Hutus, who gave orders to exterminate Tutsis and many perpetrators of
murder and rape. Rwanda’s new government has asked the United Nations
to create a judicial body to try people who committed crimes during the
Rwandan genocide.
In the resolution of the UN Security Council of November 8, 1994, it was
decided to create a tribunal to punish those involved in genocide and
violations of international humanitarian law. The tribunal was located in the
city of Arusha, in Tanzania, neighboring Rwanda, and the appeals chamber
was located in The Hague. In terms of organizational structure, this tribunal
diered little from the International Tribunal for the former Yugoslavia.
He was empowered to prosecute people accused of violating international
humanitarian law on the territory of Rwanda and to prosecute Rwandan
citizens who committed such violations on the territory of neighboring
states. (Crimes committed from January 1 to December 31, 1994).
The jurisdiction of the tribunal included: genocide, crimes against humanity,
and violations of the provisions of the Geneva Conventions, which related
to internal military conicts. Crimes against humanity included assaults
on physical and psychological well-being, hostage-taking, terrorism, rape,
forced prostitution, looting, robbery, slavery, the slave trade, etc. as well
as threats of such actions. During its 20 years of operation, the Rwandan
tribunal has indicted 96 people. 61 of them were sentenced to various terms
of imprisonment, 14 were acquitted, and 10 cases were transferred to courts
of national jurisdiction. Proceedings against 8 defendants were suspended
due to various circumstances. In 2016, the tribunal stopped working.
(USAID, 2022)
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Special Tribunal for Lebanon (2007) Prosecutes individuals guilty of
terrorism for the rst time in history. It is about the murder of former Prime
Minister of Lebanon Rak Hariri and 21 other people. (USAID, 2022)
Table 1. International experience of international tribunals. Source: own
elaboration based on the sources consulted.
So, as can be seen from the above, the models of international tribunals
have been quite eective in prosecuting international crimes.
Separate contracts regarding reparations are worthy of attention (Table
2). Let’s consider them in more detail.
Model Essence Implementation
Versailles
Peace Treaty
(1919)
reparations to
civilians declared Germany responsible for the outbreak of the
war, and also obliged her, despite limited resources, to
pay reparations in full, including covering all damages
that were caused to the civilian population and their
property during the war. Annex I to the Treaty lists the
categories of damage that should have been covered by
the aggressor state:
1) regarding deprivation of the right to life as a result
of military actions and/or their consequences, including
bombings or other attacks on land, at sea or in the air,
as well as any military operations of both sides of the
conict in any place - to relatives and dependents;
2) regarding acts of cruelty, violence or inhuman
treatment (including encroachment on life or health,
as a result of imprisonment, deportation, internment
or evacuation, abandonment at sea or forced labor) - to
victims and their relatives/dependents;
3) regarding damage to health, work capacity and honor
of persons and their relatives/dependents;
4) regarding the inhumane treatment of prisoners of
war;
5) payment of pensions and awards to soldiers, victims
of war, disabled, wounded, sick or disabled and persons
supported by the victims;
6) deduction of aid to prisoners of war, their families or
persons they supported;
7) assistance to families and dependents of mobilized
and military personnel;
8) regarding damage caused to civilians as a result of the
imposed obligation to work without fair payment;
9) in respect of any property (except military or naval
fortications and materials) that has been captured,
seized, or damaged, as well as in respect of any damage
caused to such property as a result of hostilities;
10) damages caused by Germany in the form of taxes,
nes, and similar compulsory charges to the detriment
of the civilian population.
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Liydmyla Panova, Ernest Gramatskyy, Dmytro Baranenko, Dmytro Sichko y Oleksiy Ulianov
Expropriation and other forms of reparation in terms of compensation for damage caused as a
result of war crimes: International legal experience
Luxembourg
Agreement
between
Israel and
the Federal
Republic of
Germany
(Feldman,
2019)
Compensation
payments to
victims of the
Nazi regime.
According to the Luxembourg Agreement, the total
amount of 3.45 billion German marks was to be paid
over 14 years: 1/3 – for funds from the supply of German
goods, the other third – through oil purchases, and the
rest – in cash payments.
Table 2. Models of contractual recovery of reparations. Source: own elaboration
based on the sources consulted.
Appeal to the International Criminal Court is an equally progressive
mechanism for collecting reparations. In particular, after the indictment
enters into force, the Trial Chamber of the International Criminal
Court (1998) may decide on compensation for victims of international
crimes, the guilty party. In advance, victims must submit a request for
compensation using standard application forms. Review of applications is
a lengthy process, and the specic amount and generally the possibility of
compensation remain at the discretion of the Court.
Measures that are intended for reparation can be individual or
collective (given to groups of victims) and include monetary compensation,
restitution of property, and satisfaction in the form of a public apology
or commemoration. The Court’s reparations activities required the
establishment in 2004, according to Article 79 of the Rome Statute, of an
independent Trust Fund for Victims.
So, as we can see, international practice provides some possibilities for
collecting compensation, which has its characteristics.
Regarding the prospects of Ukraine’s recovery, scientists Michael
Emerson and Steve Blokmans raised the topic of the growing scale of
Russia’s destruction of Ukrainian infrastructure, as well as the question of
how these losses will be compensated, and at what cost the reconstruction
will take place. In this situation, the conscation of the assets of the Russian
Central Bank for about 300 billion dollars, which are frozen in the EU and
other G7 states, became an “extremely obvious solution”, provided that it is
possible to exclude from the immunity of sovereign assets in international
law, which is applied in foreign jurisdictions.
The authors note that in the absence of codied international law, there
are compelling arguments for expanding the legal doctrine regarding the
temporary freezing and conscation of such assets, the origin of which can
be proven as sources of international criminal activity. The contribution is
especially thorough. The authors of the study conrm that it is necessary
to proceed without delay with executive and judicial actions to conscate
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Russian assets for 300 billion euros and use them to compensate Ukraine as
compensation for the losses caused by the war (Website of the International
Renaissance Foundation, 2022).
In this context, it is worth noting that losses from Russian aggression are
increasing and their total amount (direct documented losses to residential
and non-residential real estate, and other infrastructure of Ukraine) as of
November 2022 is almost 136 billion dollars. (At replacement cost) (Kyiv
School of Economics, 2022).
Currently, intending to collect reparations for the damage caused as
a result of war crimes of the Russian Federation, Ukraine is developing
mechanisms for collecting funds. In particular, Ukraine is improving the
sale of conscated Russian assets.
Ukraine is improving the procedure for selling conscated Russian
assets. In particular, the management of assets conscated from the
Russians and their henchmen requires signicant expenditures from the
state budget, and as experience shows, the state is not an eective owner.
In connection with this and problems with the management of conscated
assets, the Cabinet of Ministers of Ukraine adopted Resolution No. 125 on
February 10, which regulates the sale of conscated Russian assets and
property, the funds from which are one of the sources of lling the Fund
for liquidation of the consequences of armed aggression of the Russian
Federation.
Also, Ukraine is working to involve other countries in the development
of legal mechanisms for the seizure and conscation of sanctioned Russian
assets. One such country is Japan, where the assets of 12 Russian banks and
four Belarusian banks are frozen. Ukraine cooperates with Japan on the
creation of a compensation mechanism for Ukraine and the conscation of
Russian assets in foreign countries, the issue of forming an international
register of losses, and cooperation with international partners in this
direction.
Work is underway to block Russian assets in the US. The US Department
of the Treasury’s Oce of Foreign Assets Control (OFAC) has imposed full
blocking sanctions on several countries linked to sanctions evasion that
supports Russia’s military-industrial complex. As a result, all assets and
interests in property of said such persons that are located in the United
States or owned or controlled by US persons are attached. In addition, any
entity that owns, directly or indirectly, 50% or more of one or more blocked
legal entities is blocked.
All transactions by these persons in or within (or transiting) the United
States involving any property or interest in the property of designated or
blocked persons are prohibited. OFAC noted that these actions were taken
as part of the U.S. Treasury Department’s commitment to the Russian
702
Liydmyla Panova, Ernest Gramatskyy, Dmytro Baranenko, Dmytro Sichko y Oleksiy Ulianov
Expropriation and other forms of reparation in terms of compensation for damage caused as a
result of war crimes: International legal experience
Elites, proxies, and oligarchs (REPO) Task Force, which seeks to identify,
freeze, and seize the assets of sanctioned Russians throughout the world
(Ukrainian Energy website, 2023).
The most important issue on the agenda is not whether Russia will pay
reparations to Ukraine, but when and how. Therefore, it is important to
analyze eective mechanisms for the payment of reparations and to work
on developing new ways of collecting funds for compensation, caused by
criminal actions of the Russian Federation.
Conclusions
As a result of the study of the international legal experience of the
application of expropriation and other forms of reparations in the conditions
of compensation for damage, as a result of an international armed conict,
the following conclusions were made.
1. International law provides for various possibilities for payment
of compensation for damages caused by the armed aggression of
another state through judicial or quasi-judicial mechanisms. Some
claims for compensation for material damages can be brought
in national courts and the International Criminal Court or the
International Court of the United Nations, state courts of foreign
countries, or in specially created funds or commissions.
2. The mechanism of obtaining compensation for damage caused to
property, according to the decisions of national courts, has legal
obstacles. Among them, are the limitation of the jurisdictional
immunity of a foreign state in cases of damages and the availability
of sucient funds for the execution of decisions. Not only leading
international lawyers, scientists, and politicians are looking for
optimal ways to conscate Russian assets.
3. Currently, there is no clear legal way to create an appropriate and
eective mechanism for real compensation for the losses incurred,
but it is still important to record the losses and establish a cause-
and-eect relationship concerning their being caused by Russia’s
armed aggression.
Regarding further scientic research, we consider it necessary to analyze
in detail the problematic issues of collecting reparations and ways of solving
them, taking into account international experience.
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Esta revista fue editada en formato digital y publicada
en julio de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 78
