Author: Ivan Horodyskyi
The issue related to the responsibility of those guilty of international crimes in Ukraine and the issue of reparations for war damages are discussed separately and as if independently from one another. Meanwhile, there are precedents in the international justice when criminals – within their individual criminal responsibility – were made to reimburse the damages. Here problems may arise with enforcement of the decision. Ukraine should take into account this experience to adequately develop its own strategy for cases on obtaining compensation for the damages incurred as the result of the Russian Federation’s aggression.
Most often the Russian Federation is mentioned as the subject of responsibility for the damages incurred by Ukraine, while frozen foreign Russian assets are meant to be the source of their reimbursement. However, there also exist other ways for obtaining the respective compensation, in particular, individual criminal responsibility of the persons acknowledged guilty of the war crime commitment. The Nuremberg Trial has become an important precedent in bringing international criminals to account under the international law, though its judgments did not presuppose payment of reparations by the convicted persons.
How did the International Tribunal for the former Yugoslavia and the International Criminal Court operate
International criminal justice bodies do not have any unified approach to the issue of compensation payment. The example of the International Criminal Court for the former Yugoslavia (ICTY) and the International Criminal Court (ICC) may serve as the illustration of two approaches to the problem.
ICTY did not have any official authorities to consider the issues of reimbursement and to award reparations to the victims of international crimes. However, the tribunal could take action to secure the right of victims to reimbursement of damages. Thus, the ICTY’s Rules of Procedure and Evidence contained Rule 106 “Compensations to Victims”, that presupposed the following:
- transmission of the judgment to the competent authorities of the state of which the accused is citizen;
- the right of the persons acknowledged victims to address the national bodies of the state represented by the criminal for getting reparations;
- the judgment shall be final, binding and not subject to appeal.
Therefore, the Tribunal’s judgments served as the legal grounds for the victims of the actions of specific international criminals to obtain reparations at the national level by. And it was not indicated whether such reparations were to be paid from the property that belonged to the criminals or was to be provided by the state in any other way.
The International Criminal Court applies a different approach – direct award of reparations. The Rome Statute in its Art. 75 empowers the court to authorize reparation and address the states that joined the Statute at the national level (by way of charging the victims’ property) or via payments from the Trust Fund for Victims (hereinafter the Trust Fund). Authorization of reparations takes place via approval of the Reparations Order by the Court.
Over the whole period of its activity the International Criminal Court has approved four judgments on reparation, the last of which was judgment in the case The Prosecutor v. Bosco Ntaganda. In its judgment in this case as of March 8, 2021 the International Criminal Court awarded the victims of Ntaganda’s actions compensation amounting to $30 mln.
Payment of reparations by the persons acknowledged guilty of war crimes faces the problem of availability or absence of the required money with them. The persons acknowledged guilty of commission of such crimes often do not have sufficient property to cover the payment of reparations to the victims and affected people.
For instance, the already mentioned Bosco Ntaganda, a military chief of staff of the group “National Congress for the Defense of the People”, officially owned little property, therefore the International Criminal Court acknowledged him to be “financially incapable” to fulfill the reparations order. That is why the court resolved to continue looking for his assets, as well as prepared the plan for reparations and compensation payment through the Trust Fund.
Operation of the Trust Fund provides a certain reimbursement guarantee, but it still has limited resources. In its Art. 79 the Rome Statute envisages that the Fund shall be developed by voluntary contributions, as well as by the money charged by the ICC as fines or forfeiture. Hence, payment of reimbursement for the damages incurred in full scope or within a reasonable period may face substantial problems.
ICTY faced similar problems. The reparations issue faced reluctance and resistance from Serbia – legal successor of the former Yugoslavia (until 2003 – the Federal Republic of Yugoslavia, until 2006 – the Republic of Serbia and Montenegro). Serbian leaders were trying to prove that full-scale restitution and compensation could take too much time, money and cause outbursts of discontent. There also appeared some other problems in the context of reimbursement of damages to the victims and affected people, in particular, with the determination of the current citizenship of the persons acknowledged guilty by the tribunal and the state that had to pay reparations for their actions.
What should Ukraine take into account
The experience of awarding compensation to the victims of international crimes ICC and ICTY have may be precious for Ukraine, in particular, to avoid the challenges with enforcement of judgments of those bodies of international justice. So far it is unlikely that high-rank officials and military men of the RF who even officially possess sufficient assets to pay compensations will be convicted for the international crimes committed in the course of the Russian aggression. It is also highly unlikely that Russia will support enforcement of those judgments.
Therefore, Ukrainian governmental strategies for the development and introduction of the mechanism of paying reparations for the war damages in Ukraine should include suggestions concerning the ways to secure financial damage compensations awarded by international bodies of criminal justice. One of the ways could be transfer of a part of frozen Russian assets to the Trust Fund affiliated with the ICC exactly for the payment of reparations to the victims of and those affected by Russian international crimes in Ukraine.
It is this approach – reparation of damages out of the RF’s assets frozen in Ukraine – that should be applied in case a special international tribunal is established for considering the crime of RF’s aggression against Ukraine. In case it is empowered to impose punishment in the form of reparations, enforcement of such judgments should remain the duty of the special fund affiliated with this body, following the example of the ICC’s Trust Fund.
The experience of ICTY and ICC allows preventing other problems that may possibly arise in the course of investigation and doing justice in relation to international crimes in Ukraine, in particular, in the issue of assigning the crimes committed by the members of the terrorist organizations of Luhansk/Donetsk People’s Republics to the Russian Federation.
The judgments of the international bodies of criminal justice may also serve as the legal ground for payment of reparations within other established reparations mechanisms in case the fact of the crime and the right to reparations are proven. These mechanisms may include establishment of an international commission on reparations for damages to Ukraine, and the authority of such body’s judgments must be undeniable.