Written by: Ivan Horodyskyi

On January 19, 2023, the European Parliament adopted the Resolution “On the establishment of a tribunal on the crime of aggression against Ukraine.” In it, the European deputies supported the creation of an ad hoc international justice body to condemn the Russian military and political leadership responsible for starting an aggressive war against Ukraine. Although this document focuses particularly on the establishment of a special tribunal, it contains a number of points important for ensuring compensation for Ukraine.

First of all, it is important that in its Resolution, the European Parliament refers to the Resolution of the UN General Assembly “Furtherance of remedy and reparation for aggression against Ukraine” of November 14, 2022. The Dnistrianskyi Center experts predicted in the publication on the content and consequences of the adoption of the Resolution of the UN General Assembly that “all further decisions at the international and national level on the creation of an international compensation mechanism for Ukraine will be made taking into account and referring to this Resolution.”

Regarding the provision of compensation to Ukraine, the European parliamentarians in paragraph 11 of the Resolution of January 19 stressed the “important role” of the future special tribunal “in facilitating claims for compensation.” The Resolution contains no specific proposals for the interaction of the special tribunal and ensuring compensation to Ukraine.

The appeal to the European Union, its member states, and other states to participate “in discussing the legal possibility of using the sovereign assets of the Russian state as compensation for Russia’s violation of international law in Ukraine, including potentially by depriving such assets of the protection of sovereign immunity or limiting such protection due to the gross nature of these violations” (paragraph 12 of the Resolution) is very important. This statement can be seen as a “declaration of intent” at the official level, following a series of public statements by European officials and politicians.

This statement does not guarantee that the Russian Federation’s assets will be confiscated or otherwise used for compensation to Ukraine. However, it allows for different scenarios of working with them, while emphasizing that appropriate decisions should be taken at the multilateral level.

Another key point for the process of compensation to Ukraine is the support expressed in paragraph 14 of the Resolution of the European Parliament on “creation by the UN member states, in cooperation with Ukraine, of an international register of damage.” That recommendation was also formulated in the UN General Assembly Resolution of November 14, 2022.

An important point contained in paragraph 14 is that it refers to the use of the Register to collect evidence of losses “caused by the internationally wrongful actions of the Russian Federation and its allies.” At the moment, one shouldn’t hastily interpret the meaning of this wording, but potentially it allows for the possibility of bringing claims for compensation both against the Russian Federation and Belarus or Iran.

What’s next?

Because of the content of the compensation provisions, this document is an extremely important political signal.

First of all, this is an official call for a multilateral solution to the problem of sovereign immunities of Russian Federation’s state assets. The fate of about $350 billion of assets of the Central Bank of the Russian Federation, which are now frozen in different countries, can be key to ensuring the real implementation of damage compensation.

It is also important that the issue of compensation is raised in the context of creating a special tribune on the crime of aggression, which indicates that these topics can be interrelated in the future. It is not yet known whether the tribunal will have the authority to award compensation, but if so, the question of securing the payment of compensation will certainly arise.

It is possible that an institution such as the Trust Fund for Victims from the International Criminal Court will be established in this case. The filling of such a fund can occur at the expense of the seized assets of the Russian Federation which would add additional legitimacy to the process of their withdrawal.

However, in any case, it should be remembered that, as in the case of the UN General Assembly Resolution of November 14, 2022, the European Parliament Resolution of January 19, 2023, is not legally binding. Therefore, practical steps by the EU and its member states to achieve the goals and objectives formulated in it are critical.