On November 21 and 22, 2024, the USAID Justice for All Program, in partnership with the Council of Europe, the Register of Damage for Ukraine, and the International Organization for Migration, held an international conference “Compensation and Reparation for the Damage Caused by the Aggression of the Russian Federation against Ukraine: Development of International and National Mechanisms”.

The event provided a platform for more than 190 representatives of the Government of Ukraine, justice sector institutions, communities, business, civil society and the donor community to discuss the current state of compensation and other reparations efforts by international and national stakeholders and identify ways to strengthen coordination and coherence between them.

One of the speakers at the event was Ivan Horodyskyy, director of the Dnistrianskyi Center. Below are notes from his speech. 

The establishment of the Compensation Commission as an integral element of the compensation mechanism for Ukraine will be one of the key factors in ensuring a just peace for Ukraine. This conclusion is supported by the experience of previous compensation mechanisms. As Michael Gaffey, the last Chairman of the UN Compensation Commission, noted in his letter to the UN in February 2022, the results of the Commission's work “contributed to post-conflict resolution by emphasizing the importance and value of international law”.

Such institutions are not unique – history knows many precedents, more or less successful, such as the Eritrea-Ethiopia Claims Commission or the UN Compensation Commission. Unfortunately, the need to create such mechanisms usually arises from violations of the international legal order and the lack of consistent efforts to prevent such violations.

However, the context of establishing a Compensation Commission for Ukraine is unique.

For example, the establishment and operation of the UN Compensation Commission in the early 1990s can be seen as a minor proof of Francis Fukuyama's thesis about the “end of history”. This commission, established in the idealistic period of the end of the Cold War, was one of the few evidences of short-lived global unanimity, in particular among the members of the UN Security Council.

Instead, the establishment of the Compensation Commission for Ukraine is a response to the greatest global security crisis since the World Wars, which has posed the most serious challenge to international law since 1945. The compensation to Ukraine, which is impossible without the work of this commission, may prove that even in the most difficult times, international law is capable of producing complex and far-reaching solutions.

At the same time, the future Commission for Ukraine is not only a technical body, but a necessary step to create a clear mechanism for restoring the rights of victims of Russian aggression, which was launched with the launch of the Register of Damage for Ukraine.

This step should be based primarily on the experience of the previous compensation bodies mentioned above and take into account the interests of the victims. The “victim-centered approach” should become a fundamental part of activities of the Commission.

Firstly, one of the main challenges for the Compensation Commission will be direct cooperation with the victims. For centuries, starting with claims tribunals and arbitration, the process of resolving compensation disputes has largely remained an interstate issue or been mediated by states. In the case of Ukraine, this “glass wall” will be absent.

Obviously, not all decisions of the Commission – in particular, regarding the amount of compensation, admissibility of applications, etc. – will be perceived as fair. In the absence of mediation by states, this could lead to criticism of the Commission by the victims themselves. At the same time, effective communication with applicants and cooperation with stakeholders in various formats can minimize negative consequences. The recent establishment of the Civil Society Coordination Platform under the Register of Damage for Ukraine is a positive case that can be adapted to activities of the Commission.

The second challenge will be the threshold of proof, which has been repeatedly recognized as a “pain point”, in particular in the activities of the UN Compensation Commission. In a full-scale war, when missiles, drones, and artillery destroy apartments, houses, and entire communities in a matter of hours, victims often cannot provide proof of damage, especially property damage. Flexibility in this regard could be an important step toward ensuring justice.

The Register of Damage already demonstrates a reasonable and justified, flexible approach to the evidence submitted by claimants. For example, the announced “presumption of loss” for property owners in completely destroyed towns such as Bakhmut or Vovchansk is an important signal to all parties. In this context, the Compensation Commission for Ukraine may differ significantly from previous mechanisms, and its experience may become a model for future cases.

The third, and perhaps the biggest challenge, will be to ensure access to the Commission and the compensation mechanism for all victims of aggression to avoid situations where certain categories are left out of the compensation mechanism. The experience of the UN Compensation Commission and other successful instruments demonstrates success stories, but at the same time leaves out those victims whose compensation claims have not been taken into account.

The experience of the Second World War shows that the exclusion of certain groups of victims from the reparations process can remain a painful wound in society for decades after the war, creating new problems. “Comfort Women” in South Korea, residents of the island of Guam, Japanese-American internees, and many other examples have shown a long way to go on the path to reparations for the consequences of armed conflict.

The task of the Compensation Commission, as well as the entire compensation mechanism for Ukraine, is to prevent or minimize such exceptions in its decisions in order to prevent stigmatization and ensure justice for each victim.

Finally, I would like to address the key issue of compensation financing. Although this issue primarily concerns activities of the future Compensation Fund for Ukraine, it is worth repeating the statement that was emphasized at the very beginning of the work on the compensation mechanism that “no [compensation] commission can be considered fully successful without adequate funding for the payment of compensation”.

The most difficult part of creating the Compensation Commission is to achieve two goals: pave the way for the confiscation of Russian assets and attract maximum international support. However, for many countries, the confiscation of Russian assets and overcoming sovereign immunities, even if it seems obvious to us, remains an extremely sensitive and complex issue.

In this context, a strategy to attract support for the Compensation Commission through the prism of human rights and a “victim-centered approach” may be effective. This will allow us to focus on protecting the rights of victims, not just the financial aspects. 

For example, during a recent conversation with Chilean diplomats, when asked about Chile's possible participation in the Register of Damage in the context of their consistent position on human rights protection, they noted that they did not even consider it as an issue of protecting the rights of victims, but only as a financial problem.

Such positioning could make participation in these initiatives more attractive to a wider range of countries by positioning it as a contribution to restoring justice rather than as part of a confiscatory process. This will help build a broad international coalition in support of Ukraine.

And later, when all losses are recorded (Register of Damage), assessed and recognized (Compensation Commission), specific figures, rather than rhetorical estimates of hundreds of billions of dollars, will make the issue of asset confiscation more realistic. Factual arguments backed by a legal framework could build broader support and remove some of the existing objections to asset confiscation

Hannah Arendt once noted that compensation for crimes is a necessity for the restoration of the social order, when not only the victim but also the law wins. The success of the compensation process for Ukraine will be an important contribution to the restoration of the international order based on the rules and rule of international law. The establishment of the Compensation Commission is a key step on this path.