Creation of the International Register of Damage: why this is important

  • 22.11.2022

On November 14, 2022 the General Assembly of the UN approved its Resolution “Furtherance of remedy and reparation for aggression against Ukraine”.

As we have already analyzed in the previous publication, attention should particularly be paid to p. 4 of the Resolution under which “the General Assembly (…) recommends the creation by Member States, in cooperation with Ukraine, of an International Register of Damage to serve as a record, in documentary form, of evidence and claims information on damage, loss or injury to all natural and legal persons concerned, as well as the state of Ukraine, caused by Russian Federations internationally wrongful acts in or against Ukraine, as well as to promote and coordinate evidence gathering”.

 

Such approach has already been applied in the UN practice related to ensuring reparation of damages by the state, which committed the armed aggression. In particular, in case of Iraq’s invasion of Kuwait and its further occupation, the UN Security Council adopted Resolution No. 674 as of October 29, 1990, where, side by side with recognition of Iraq’s obligation to pay reparations, it suggested the idea “to collect relevant information regarding their claims, and those of their nationals and corporations, for restitution or financial compensation by Iraq, with a view to such arrangements as may be established in accordance with international law”.

But in the case of damages inflicted to Ukraine, a very specific recommendation is meant – creation of the International Register of Damage.

It seems that the recommendation the Resolution of the UN GA as of November 14, 2022 contains, is of a priority nature. It is important that the above register is mentioned in the document in reference to bringing the Russian Federation to account for the aggression and other international and illegal acts, Russia’s commitment to reimburse the inflicted damages and creation of the mechanism of such damage reimbursement. That obviously testifies to the fact that all the above problems are interrelated.

This register should obviously be used within the framework of the reparations mechanism for determining its amount and establishing the fact of its infliction. Hence, the moment such mechanisms starts operating, the register should already be functioning and should already contain some data. Due to this, creation of this register should evidently precede creation of the reparations mechanism. And it seems that so far there are no serious obstacles on the way to beginning the work aimed at its creation.

But it should be decided right away who and how will be creating such register.

Implementation of the recommendation on the creation of the register, in spite of the wording of p. 4 of the Resolution saying that this should be done by the “Member States, in cooperation Ukraine”, will largely depend on Ukraine’s efforts.

It is in the Ukrainian jurisdiction that all information and evidence base on the damages inflicted due to the Russian aggression is available. Hence, in practice, the main part of the work, as a minimum as to filling in the register with data and documents, will have to be performed by Ukraine.

Besides that, it is Ukraine that is the most interested in the availability of as reliable and complete information on the amount of damages Ukraine has suffered as possible.

In general, Ukraine could independently get down to the creation and maintenance of this register. But engagement of international partners in the process will contribute to the correspondence of the information available in the register to the acceptability criteria not just of Ukrainian but of foreign and international institutions.

That is why the possibility of creating the register under the international agreement of Ukraine with other states condemning Russian aggression should be considered. This document should establish the key requirements concerning the following:

  • creation of the register and its maintenance;
  • nature of information available in it,
  • reliability criteria for such information and its verification,
  • sources of data for the register,
  • protection of its information and procedures of accessing it.

However, the process of creation of such register in the format of international cooperation may require more time than expected. Hence, regardless of the course of this process, Ukraine may start creating the centralized data base on the damages incurred due to illegal actions of the Russian Federation already now. It will be expedient to consider the possibility of developing and approving special legislation that would regulate the parametres of this data base.

For example, this data base should contain the data on the following:

  • subjects (persons and entities) affected by the RF’s illegal actions;
  • nature of damages (for instance, loss of life, torturing, deprivation of liberty, property destruction, etc.);
  • damage assessment;
  • data on the subject guilty of the damage infliction (depending on the level of identification, more or less specific information should be provided);
  • documents confirming the indicated conclusions, etc.

Special attention should be paid to the process of verification of the information included into the register. It seems that the tools and ways of verification that will ensure inclusion of only reliable and verified information to the register should be envisaged, to the extent possible.

It is also important to regulate the issue of the sources for filling this data base. In this respect one should take into account Ukrainian reality. It seems that the violations committed by the Russian Federation are mostly within the field of criminal law, and collection of relevant information is primarily performed by law-enforcement authorities within criminal proceedings. Hence, it is information and documents from the materials of criminal proceedings that should become the basis for filling in the data base.

One should not exclude the possibility of filling in the register from other sources either, however, in this case more attention should be paid to analysis and verification of such information.

Under any circumstances creation and operation of this register will be of high legal and political relevance for ensuring payment of reparations to Ukraine. Its launching will prove the seriousness of the intention to make the RF fulfill its obligation of paying reparations to Ukraine. Besides that, Ukraine is highly interested in its immediate launching and filling since that will enable to clearly document the inflicted damages as well as to verify the respective facts at the stage when these processes are undoubted and obvious.