Why should the future international claims commission for Ukraine have judicial functions?

  • 16.09.2022

Authors:

Ivan Horodyskyy,
Ph.D., Director of the Dnistrianskyi Center

Markiyan Bem,
Partner of “Nazar Kulchytskyi and Partners Law Firm”,
Expert of the Dnistrianskyi Centre,
lawyer of the European Court of Human Rights (2015-2019)

 

Introduction

One of the key challenges on the way to ensure the reparations for the war losses of Ukraine is the vision of the future institutional mechanism of its enforcement, in particular the international body that would be dealing with this process. The conceptual grounds of such mechanism have so far been worded in the expert environment, in particular in the concept paper prepared by the members of the Task Force on the Development of International Mechanisms for Reparations Payment to Ukraine Chiara Giorgetti, Markiyan Kliuchkovsky and Patrick Pearsall and position document of the Polish expert on reparations issues Jan Barcz, etc.

So far the format and principles of operation of such body are only under discussion, in particular what functions such body should have: administrative or judicial. Wide discussion of this issue may contribute to further work at the respective mechanisms and, finally, lead to the development of more sustainable and integral proposals.

Problem review

The process of reimbursement of the damages caused by the full-scale Russian invasion in Ukraine requires settlement of a number of issues for being effectively implemented. Since voluntary payment of the damages caused by the aggression against Ukraine by the Russian Federation is so far an unrealistic scenario, the most probable scenario is seizure of Russian assets abroad (both private and public, like the assets of the Central Bank of the RF), with their further use for paying reimbursement to Ukraine. That is why it is necessary to ensure legally impeccable implementation of the whole process of RF’s asset seizure, adoption of decisions on awarding reparations and its implementation.

Though Russian assets have been frozen at the level of certain states, the procedure of passing decisions on their seizure and use at the national level seems not to be the most efficient one. At this level the process may go along different principles, with different deadlines and different pre-conditions, or just face the rejection that will not allow to ensure the key objectives: to prevent transformation of this fact of seizure of the assets of a sovereign state into a dangerous precedent and to ensure reimbursement of war damages to Ukraine.

That is why the most substantiated seems to be application of the multi-lateral approach to the development of the joint mechanism at the international level, the functions of which would include both ensuring the process of reimbursement, and seizure and further use of Russian assets. The issue related to the way of establishment of this mechanism under the UN auspices or under an international multilateral agreement should be discussed separately.

The proposals raised by this time consider this mechanism in the form of the claims body (tribunal, claims commission) like the UN Claims Commission or the Eritrea-Ethiopia Claims Commission. Specific list of its functions has not yet been officially discussed, but for some statements. In particular, Deputy Minister of Justice and members of the Task Force Iryna Mudra has mentioned that this is going to be a “non-judicial body, but rather an administrative one”. However, integral proposals have not been voiced and discussed.

This model, in general, corresponds to the above-mentioned previous international practice, but the situation in Ukraine differs from the ones in Kuwait and Ethiopia. However, one of the key factors we have mentioned above is unwillingness of Russia as the guilty party to voluntarily pay reparations of the damages in this or that form (directly or, for instance, as a special energy carriers duty, as it was in case with Iraq).

Therefore, we think that administrative or quasi-judicial functions alone will not be enough for such mechanism, that is why it would be expedient to consider provision of it with judicial functions as well. Such approach will ensure solving of the problem of substantiation of the RF’s asset seizure and legitimacy of the relevant procedure.

The activities of such body would aim at the following:

                1.            Establishment of the facts of violation of the international law by the Russian Federation, that have led to damages resulting from the aggression against Ukraine;

                2.            Passing decisions on the seizure of Russian assets and their further use for the sake of financing war damage reimbursement;

                3.            Consideration and approval of decisions on damage reimbursement out of this money under specific claims.

                4.            Having such consideration in absentia of the respondent, since the RF will probably refuse to take part in it.

By its nature, that is supposed to be a classical judicial body which includes persons whose reputation is impeccable. It is supposed to function in compliance with the principles of adversariality and impartiality, that presupposes that even if the RF refuses to cooperate within it, the Russian side must get an opportunity to submit and advocate its own standpoint in it, in particular, via:

  • an opportunity to send its representatives to the composition;
  • an opportunity to take part and to express own standpoint during each claim consideration;
  • sending of all procedural documents with the proposal to provide comments and express own standpoint to it.

Of importance is the need for establishment an appellate instance within this mechanism, that would enable to revise the adopted decisions. Procedural documents should envisage that in case the decision is not appealed within a certain period (one year), it shall be enforceable, and this enforcement is irreversible.

Even if after the expiry of this period the appellate instance, in case Russia submits a claim, may resolve that this or that decision has been illegal, the fact of such recognition by itself may be considered a due sanction and satisfaction and will not require appearance of commitments with the victims to repay the money. Such period corresponds to the current practice of international courts and courts of arbitration concerning reimbursement, in particular it was applied in  decision in the case of “Carthage” ship (France versus Italy) of 1913.

 

Conclusions

Operation of the international mechanism of war damage reimbursement for Ukraine as a judicial body creates a number of advantages for the future process. In particular, that will enable to ensure publicity and transparency of the process of seizure of Russian assets, substantiate its legitimacy, stress the exceptional nature of this precedent that is going to be exceptional and difficult to replicate, as well as to legally protect the decision on reimbursement in the future.

Such approach does not aim to create any advantages for Russia or to give it an opportunity to affect the reparations process. It will, just the opposite, allow to reject the arguments on the illegitimacy of seizure of Russian assets and further reimbursement made out of them and to guarantee stability of the decisions passed on reimbursement and impossibility of their revision in the future.

Anyway, application of this approach does not solve all the problems with reparations, in particular the issue of jurisdiction immunities of the assets of the Central Bank of Ukraine. But it can make reimbursement prospects more integral and realistic due to the overall balance in the whole process of seizing Russian assets and further payment of reparations to Ukraine.