by Ivan Horodyskyy

The signing of the agreement between Ukraine and the Council of Europe on the establishment of the Special Tribunal for the Crime of Aggression against Ukraine marks one of the most significant achievements of Ukrainian diplomacy during the period of full-scale aggression.

At the same time, this represents the second case of creating an institutional mechanism to hold Russia accountable - following the establishment of the Register of Damages for Ukraine in May 2023.

These two international tracks - compensation for damage caused by aggression and criminal accountability for the crime of aggression - are parallel and not directly interconnected. However, the issue of compensation by individuals held criminally responsible under international law has already arisen in the practice of other international criminal courts and tribunals and is likely to feature in some form in the work of the Special Tribunal.

For example, the International Criminal Tribunal for the former Yugoslavia had the authority only to transmit judgments to the state of nationality of the convicted individuals. As a result, victims were given the opportunity to apply to national courts for reparations.

The International Criminal Court (ICC), on the other hand, has the power to award direct compensation to victims. Article 75 of the Rome Statute empowers the Court to award reparations and to request States Parties to enforce such judgments at the national level - either through the recovery of property from convicted persons or via payments from the Trust Fund for Victims (hereinafter referred to as the Trust Fund). Reparations are awarded by the Court through the issuance of a “Reparations Order.”

The Special Tribunal will also have the function of awarding direct compensation for damages, a role that is reflected—albeit rather briefly—in its founding document. Specifically, the Statute of the Tribunal includes Article 36, titled “Penalties for the crime of aggression,” which provides, among other things, for the following types of punishment:

- a fine under the criteria provided for in the Rules of Procedure and Evidence; 

- the confiscation of instrumentalities, proceeds, property and assets derived directly or indirectly from the crime of aggression, without prejudice to the rights of bona fide third parties.

Since the Rules of Procedure and Evidence are yet to be adopted, it is currently not possible to assess or analyze the criteria according to which a fine will be imposed as a form of penalty.

It is also important to emphasize that, in this case, we are speaking about a fine - not direct compensation to victims. This approach is logical, considering the very nature of the crime of aggression, which involves an indeterminate number of victims. In fact, all citizens and residents of the affected state may be considered victims.

As for the power of confiscation, this approach is consistent with established practice. For example, the ICC is vested with similar powers under Article 79 of the Rome Statute. However, in the ICC’s case, confiscated property must be transferred to the Trust Fund, whereas the Special Tribunal operates in alignment with the broader international compensation mechanism.

According to Article 37 of the Tribunal’s Statute, “Transfer of funds collected through fines or confiscation measures,” the confiscated funds will be transferred «to an international mechanism, giving priority to a compensation mechanism established in accordance with United Nations General Assembly Resolution A/RES/ES-11/5 of 14 November 2022 for reparation for damage, loss or injury, and arising from the internationally wrongful acts of the Russian Federation in or against Ukraine”.

In this case, the reference is clearly to the international compensation mechanism, which is also being developed under the auspices of the Council of Europe and of which the Register of Damages for Ukraine is already a component. In their documents related to the creation of the Register, the Council of Europe bodies consistently refer to the aforementioned UN General Assembly Resolution A/RES/ES-11/5 of 14 November 2022.

These funds will be directed to the future Compensation Fund, the formal establishment of which - according to those already working within the framework of the international compensation mechanism - is expected by the end of 2027. In the future, these funds will be used either to compensate all victims of Russian aggression or to support specific categories of victims, such as individual claimants.

Such powers are generally in line with the mandate and jurisdiction of the Special Tribunal. However, the key challenge in this regard - the actual enforcement of fines and confiscation of assets - will be the availability of those assets.

This is primarily due to the fact that the main defendants, namely the military and political leadership of the Russian Federation, officially declare relatively few assets, most of which are located within Russia. While it may be possible to identify assets abroad, often held via shell companies or nominees, this process is likely to be complex and time-consuming.

To facilitate this objective, the creation of a dedicated unit within the Special Tribunal tasked with tracing such assets could be considered, though the likelihood of such a measure being adopted is objectively low.

However, if the list of defendants includes, for example, Russian propagandists and oligarchs - whose foreign assets are publicly known and already subject to sanctions—more tangible results may be achievable. Even so, under the Statute of the Special Tribunal, only property located within the jurisdictions of states that have ratified the Statute may be subject to confiscation.

In conclusion, it should be reiterated that the confiscation of assets, the imposition of financial sanctions on the accused, and the awarding of compensation to victims are not the primary objectives of the Special Tribunal. The effectiveness of the Tribunal in these areas will largely depend on the scope and composition of the list of indicted individuals.

Nonetheless, even symbolic decisions in this regard will carry significant moral and political weight in the broader pursuit of justice and in the effort to secure reparations for Ukraine.

The material was prepared with the support of the International Renaissance Foundation as part of the project “Compensation4UA / Compensation for War Damages to Ukraine. Phase V: Interim Reparations for Victims of Russian Aggression against Ukraine – Exploring Approaches, Needs and Solutions".