The International Register of Damage is Ready to Commence Operations

The International Register of Damage will open for claims on April 2, 2024. Individuals, entities, and our state, all bearing the brunt of damage inflicted by Russian aggression, will have the chance to submit a claim to the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine (the Register of Damage). Initially prioritising first category claims from individuals who have either lost their homes or experienced damage to their residential property, the International Register of Damage will progressively broaden its scope to encompass diverse victim categories, including survivors of conflict-related sexual violence (CRSV). In our conversation with Deputy Minister of Justice of Ukraine, Iryna MUDRA, we delve into the eligibility criteria and procedures for accessing the benefits offered by the Register of Damage and qualifying for compensation.

What was the driving force behind establishing the International Register of Damage?

– When the large-scale aggression began, legal experts recognised the absence of an effective legal venue for victims, who had suffered both tangible and intangible losses, to seek compensation. It was essential to devise a mechanism to address this issue. Thus, in May 2022, under the President of Ukraine’s decree, a task force was established, comprising representatives from government entities such as the Ministry of Justice of Ukraine, the Ministry of Foreign Affairs of Ukraine, law enforcement agencies, alongside prominent international legal experts. This task force put forward the proposal to establish an international compensation mechanism.

The idea of creating such an international compensation mechanism garnered support from influential international organisations. Several resolutions by the Parliamentary Assembly of the Council of Europe and decisions by the Committee of Ministers of the Council of Europe were adopted in support of this initiative.

In November 2022, this proposal was brought before the United Nations General Assembly. The resolution of the UN General Assembly titled “Furtherance of remedy and reparation for aggression against Ukraine,” dated 14 November 2022, emerged as the legal and political foundation that will pave the way for establishing an international compensation mechanism.

The UN General Assembly resolution outlines three primary provisions. Firstly, it declares that Russia is responsible for an internationally wrongful act in connection with its aggression against Ukraine. Consequently, Russia must make full reparation under international law.

The second provision underscores the necessity of establishing an international mechanism for reparation for damage, loss or injury arising from Russian aggression against Ukraine.

The third provision of the UN General Assembly Resolution recommends the creation by Member States of an international register of damage to serve as a record of evidence and claims for victims, damage, loss or injury.

94 Member States of the UN General Assembly supported the Resolution, with 13 voting against it. Ukraine, alongside its closest allies, has initiated the implementation of this Resolution. The first crucial step toward establishing an international compensation mechanism involved setting up the Register of Damage. Introducing an international Register of Damage was essential to guarantee its legal validity, obtain worldwide acknowledgment, and garner support from international partners. The data collected by the Register of Damage will enable the Board of the Register  (compensation board) to determine the exact compensation amounts to be paid to affected individuals. Undoubtedly, these decisions must be valid, given that they are not judicial rulings but determinations made by an administrative board.

The Register of Damage operates on a victim-centric approach, prioritising the needs of those who have endured hardships. Given the Council of Europe’s (CoE) commitment to safeguarding human rights, it was decided that the Register of Damage would be established under the umbrella of this global institution. In May 2023, just under 8 months after the UN General Assembly Resolution was passed, the Committee of Ministers of the CoE approved a resolution establishing the Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine. This Agreement garnered support from 43 countries and one international organisation—the European Union—bringing the total number of participants to 44 today.

This marks an unprecedented event within the Council of Europe and on a global scale, with only a handful of similar occurrences. For example, in response to Iraq’s invasion of Kuwait in 1991, the UN Security Council established a Compensation Commission under the auspices of the United Nations. Currently, the international compensation mechanism is implemented through a partially enlarged agreement, open not only to Council of Europe members but also to others. In our case, the entire Group of Seven, including Japan, Canada, the United States, among others, has joined this agreement, providing substantial legal support. The legitimacy of the Register of Damage will remain unchallenged, except by Russia, of course.

However, as mentioned earlier, the Register of Damage marks just the initial phase in establishing an international compensation mechanism. The subsequent phase is immensely significant. Without implementing a mechanism to make compensation decisions based on the information collected in the Register of Damage, that information will merely remain data. Therefore, establishing an administrative body — a compensation board — is crucial, and we are presently involved in its formation.

What roles does the compensation board fulfill?

– The Register of Damage gathers and manages information, arranging claims and evidence based on different types of damage. Once prepared, it will it will hand over this structured information to the Compensation Board. The Board, empowered by the information from the Register of Damage, will review each claim by affected individuals and decide on compensation amounts. Essentially, the Board will serve as a record of all debts owed by Russia. It is important to note that the Register of Damage will focus solely on financial compensation.

How will the compensations be funded? The third aspect of the international compensation mechanism involves the compensation fund, proposed by Ukraine to primarily rely on Russian funds. These funds could come from Russian assets, revenue generated by oil and gas sales, or profits earned from Russian assets.

Will our partners contribute funds for compensation?

– The compensation fund has the potential to source funds from diverse avenues. If governments, civil society organisations, or donors are willing or take action, they can contribute to the fund or set aside funds for specific purposes, such as compensating survivors of CRSV. Our discussions with partners indicate their willingness to do so. However, this matter is still being discussed as we need to establish the Compensation Board first, which will take time.

Regarding Russian funds, are we referring only to state-held funds abroad, or also to funds owned by Russian oligarchs and other businesses?

– Currently, our focus is on Russian sovereign assets. We adhere to international law requirements, which dictate that a sovereign entity responsible for internationally wrongful acts is under an obligation to provide reparations. Therefore, the state should use its own funds for this purpose. Should it not comply voluntarily, other countries have the right to take actions to enforce the violator’s obligation. We are exploring avenues to access the sovereign funds of the Russian Federation. According to publicly available information, around $300 billion of Russian funds are located in major jurisdictions of the Group of Seven and the European Union. These funds can be accessed through a well-structured legal framework and appropriate legal grounds. Seizing these funds requires political will.

When it comes to private assets, different legal rules come into play, mostly aimed at protecting individual property rights. Some countries have these rules enshrined in their constitutions, requiring constitutional amendments. In other cases, these rules stem from international legal sources, such as relevant conventions, like the European Convention on Human Rights. Dealing with private funds poses greater challenges because it is necessary to link the damage directly to Russia’s aggression. This involves a legal process or may require criminal proceedings when assets are seized. Legal proceedings can be protracted, especially when dealing with oligarchs who possess ample resources to prolong the process. Therefore, we would rather not use our limited human resources on efforts that might take a long time and might not bring positive results. Also, private assets are usually much smaller in scale compared to government-owned ones. Even after undergoing all legal procedures and gaining access to private assets, they must still be sold, taxes settled, and often, they may be burdened by debt obligations. Hence, directing attention to sovereign funds, which we intend to allocate to the compensation fund, is a more efficient way forward.

Russia is trying to preserve its foreign assets. Are our allies ready to take resolute action in support of Ukraine?

– Russia is devoting substantial resources and effort to propagate its narratives globally. Predictably, they are seeking to discredit the notion of seizing Russian assets by leveraging opinions from some international legal experts. However, recently, seven highly respected and reputable international law experts released a joint statement recognising that seizing Russian assets might be a legitimate course of action for countries hosting these assets, as a response to Russian aggression. Therefore, there are now fewer legal objections to this approach. These arguments were present at the beginning of 2023. However, since then, lawyers have thoroughly examined the existing norms of international law and identified the necessary legal frameworks. Therefore, the notion of legal illegitimacy is no longer being mentioned.

Instead, other arguments are coming up – financial ones. Some suggest that confiscating assets in euros or dollars could affect Europe’s financial stability. However, strong counterarguments have been found, indicating that there is simply no substitute for the dollar and the euro. Currently, the dollar accounts for 59% of all global reserves, while the euro makes up 20%, with 5% each for the yen, pound sterling, and rupee, and the rest less than 5%. If there is distrust in the euro and the dollar, what currency will countries use to hold their reserves? Even countries in Asia and the eastern part of the world don’t hold reserves in the Chinese yuan and Indian rupee.

The Group of Seven needs to reach a unanimous decision to enforce countermeasures, aiming to mitigate the risks linked to financial instability or a decline in the attractiveness of the euro or dollar. If this decision is endorsed by the United States, Europe, the United Kingdom, and Japan, there will be no alternatives for holding reserves in other currencies.

Therefore, with robust arguments challenging the financial risks, a third risk factor comes into play – political. And here, the focus is squarely on political determination. Is this determination evident? At present, it seems lacking.

Major companies in European jurisdictions like France, Germany, or Belgium continue their operations in Russia, viewing it solely as business. They believe that a peace agreement will eventually be reached, and they will resume normal business operations in Russia. Their concerns about losing significant profits there outweigh any other factors. Consequently, they are exerting pressure on their respective country leaders to avert the confiscation.

For example, EU countries have blocked over 200 billion euros belonging to the Russian Central Bank. The majority of these funds are held in the international depository Euroclear. Euroclear is reluctant to relinquish this substantial amount of money because it profits from it – it earned 5.2 billion euros from these funds between 2022 and 2023. Simply without any effort. Since these assets are frozen, the profits accrue directly to Euroclear.

Powerful corporations and central banks, hesitant to lose substantial investments and a key depositor such as Russia, are exerting pressure on Western governments. Claims of decreased attractiveness or trust in European financial institutions, or even worse, the threat of financial instability, lack merit.

Regrettably, a political scenario persists. We must engage with our state leadership and government institutions to collaborate with European leaders to ensure this decision is ultimately reached.

How does the International Register of Damage ensure the rights of survivors, especially those of CRSV? Who is eligible to access this Register the state, legal entities, or ordinary people? What steps are involved in submitting a claim?

– Since its inception, the Register of Damage aimed to address a broad range of damage categories. Recently, the World Bank, along with European partners, assessed Ukraine’s total losses at $486 billion, predominantly encompassing state losses like infrastructure, environmental damage, cultural heritage, etc. However, these calculations do not cover losses suffered by individuals or businesses, be they tangible or intangible. That is why we believe the Register of Damage should encompass all forms of losses.

The Ukrainian government conducted a thorough analysis of the various types of losses following a full-scale invasion. We collaborated with all government agencies and local authorities to identify around 30 categories of damage. These findings were then formalized and submitted to the elected Board of the International Register of Damage. The Board approves the rules, procedures, and damage categories of the Register and comprises seven members, with one representing Ukraine and six elected by other participants in the Register of Damage.

Any damage resulting from Russian aggression, whether CRSV, torture, or any violation of personal integrity, must be documented in the Register of Damage. I am certain that the Board overseeing the Register of Damage will indeed approve this decision.

What should someone who has experienced such damage do? Anyone affected – whether an individual, a business, or a state, as the state is also a victim in this aggressive war – can submit a claim. We are structuring the operations of the International Register of Damage to avoid retraumatizing individuals who have already reported violence against them – whether to law enforcement agencies, the police, prosecutor’s office, civil society organisations, or the Ukrainian National Register of CRSV Survivors, the establishment of which is currently under discussion. A claim to the International Register of Damage must be filed by the affected individual. However, the Register will gather information about them from the mentioned sources.

The International Register of Damage is a digital platform where electronic data must be submitted. In collaboration with the Office of the Register of Damage, to be established in Ukraine, we will develop an information campaign to guide people on what steps to take. We will engage in outreach efforts, including in the regions.

Ukraine intends to establish its own register of damage caused by Russian aggression. How will these two registers collaborate, and is there a possibility of duplicated efforts?

– The International Register of Damage is designed to work together with Ukrainian registers, facilitating smooth information exchange via the Diia application. In cases where compensations have already been provided through the internal register, duplicated payments will be avoided by sharing the information with the International Register of Damage. Furthermore, individuals may endure various forms of harm beyond CRSV, such as losing their homes or loved ones due to war. They can seek compensation for multiple types of damage and receive distinct compensations accordingly.

Therefore, cooperation between the International Register of Damage and the internal register is essential. If the internal register is established to complement the functions of the International Register of Damage, it must comply with its rules, procedures, and categories of damage. Once the International Register of Damage is up and running, the internal register can serve as a supportive tool.

Would ordinary people get confused with these two registries being around?

– If someone is seeking compensation, they should approach the register capable of making such payments. Applying to a register that only keeps the record of affected individuals without compensation will not result in any payments. Those seeking compensation for damages caused by Russian aggression should file claims to the International Register of Damage.

While businesses can rely on their legal counsel to navigate these matters, it is more challenging for ordinary people, especially those residing in regions affected by Russian occupation. They need clear procedures, guidance, and information, including whether one application to the internal register, which will then forward it to the international register, is sufficient or whether they need to submit applications twice.

We cannot simply copy solutions from elsewhere for Ukraine because there is no existing example to follow. Instead, we are building everything from scratch and experimenting to discover the most effective, user-friendly approaches. Given the limited access to smartphones and the internet, particularly in some regions, we are focusing heavily on IT solutions. We are identifying regional hubs where people can receive guidance on their next steps. As the central authority, we are developing mechanisms to communicate clearly with the public how to proceed. This includes PR campaigns and collaboration with local authorities to raise awareness and disseminate information. We may also offer free legal assistance so our lawyers can provide guidance to citizens. Information about the Register of Damage will be available at the Administrative Service Centers, where people usually seek assistance.

Why does the International Register of Damage only address damages inflicted by Russia following a large-scale invasion, despite the Russian-Ukrainian war starting back in 2014?

– This issue revolves around legal complexities. Regrettably, despite global condemnation of Crimea’s annexation and Russia’s actions in Donetsk and Luhansk between 2014 and 24 February 2022, it was not formally recognised as aggression. The Russian aggression was recognised as an internationally wrongful act warranting reparations by the Parliamentary Assembly of the Council of Europe and the UN General Assembly only after February 24, 2022. Hence, the International Register of Damage will only address damages and losses incurred after February 24, 2022.

However, this does not imply that legal professionals are not seeking solutions for addressing damages and losses dating back to 2014. For instance, in the case of Crimea, many Ukrainian investors pursued compensation through the bilateral investment treaty, securing favorable rulings in international investment arbitrations for their lost assets in Crimea.

Yet, our focus remains on compensating for physical losses, such as lost assets. When it comes to intangible losses, we are still searching for the proper legal framework to address them. However, we are actively pursuing avenues to translate judgments from international courts, held by individuals or businesses, into monetary compensation from the compensation fund once the compensation board of compensation fund is established. This, of course, depends on the availability of sufficient funds. Priority will be given to compensating damages suffered after 24 February 2022, particularly for individuals.

How soon do you think a register of victims/survivors of Russian crimes, especially CRSV, can be set up in Ukraine?

– The Ministry of Social Policy has drafted a law to set uph the register. It makes sense for authorities to plan databases to keep track of CRSV survivors, property damage, etc. However, they must clearly define their purpose — are they solely for national use or serve specific purposes such as compensation? If compensation is the goal, the question arises: where will the funds come from? Pursuing this internally, without following international legal standards, means we cannot seek compensation from Russian assets. Thus, we can rely on government support only.

While there are excellent initiatives, we must realistically evaluate if we have the finances to support them.

If we are establishing these registers to assist individuals in obtaining compensation from Russian assets and acknowledging it as reparations, we must align these registers with the International Register of Damage. They should complement each other. Therefore, we should wait for the International Register of Damage to define the guidelines and procedures, as well as the categories of damage and victims, and then establish internal registries accordingly to support its operations.

When can affected individuals start using the opportunities provided by the International Register of Damage?

– Having experienced the loss of friends and witnessing many others lose their homes and suffer from this war, I am committed to finding swift resolutions. However, we understand that lawyers are presently revising international legal standards. Previously, there was no quick solution to securing compensation for war-related damages. Now, we must address this issue urgently. Unfortunately, international law cannot be created overnight. It requires global consensus to establish a globally accepted mechanism for us, with the UN being the primary authority.

Unfortunately, our international partners are not ready to establish the entire mechanism in one go. They prefer to take a gradual, step-by-step approach to ensure accuracy and consistency. It is a positive step forward that the entire mechanism has gained approval, and they have recognised the importance of each stage. However, they take one step at a time, rather than simultaneously. They initiated the Register of Damage and have now moved on to the compensation board. Setting up the compensation board itself will take at least a year, as it involves an international agreement that requires discussion, signing, and ratification by parliaments. Additionally, there is the decision on the compensation fund, which does not necessarily need to be built from scratch; any existing fund can be repurposed to receive Russian assets.

Therefore, it is meticulous legal work that is challenging to explain to ordinary citizens who have lost their homes or suffered CRSV. The government is exerting maximum effort to support people. One such effort is the establishment of a register documenting damaged and destroyed property, facilitating compensation distribution via certificates for lost homes. However, we must also acknowledge the constraints of our limited budget, which impedes full-scale implementation.

When addressing survivors of CRSV, compensation is just part of the reparation mechanism. Alongside compensation, efforts include psychological support, restoring mental and reproductive health, among others. Working with civil society organisations, the government is facilitating these reparative measures to aid those affected by the war. Relying solely on compensation from Russian assets is not enough; we must leverage existing resources like healthcare and education systems. Many donors are ready to assist the state financially by offering healthcare professionals, psychologists, and organising training initiatives.

I cannot guarantee people will receive financial compensation tomorrow, nor can I say it will fully heal the wounds of those suffered from CRSV. Money is not the cure for everything. What is needed today are collective efforts from society to ensure the affected people do not feel isolated, ashamed, or forsaken. Above all, achieving peace is crucial so that air raid sirens or explosions do not trigger traumas again.

– Do you believe that Russia will pay reparations to Ukraine?

–I personally do not believe so.

Can anything be done to influence Russia?

– Russia can only be influenced through a decision by the UN Security Council, which is binding. However, Russia is a permanent member of the Security Council with veto power. In 2023, 35 decisions were brought to the Security Council regarding Ukraine, and Russia vetoed all of them.

Reparations typically follow a country’s defeat in war. It is important to note that Russia describes its actions in Ukraine as a ‘special military operation’, not a war, and claims they lack a legal basis for paying reparations.

Another scenario involves an international agreement with Russia in which it commits to paying reparations.

Regarding both scenarios, I have no illusions whatsoever.

Therefore, the only viable solution is a coalition of nations employing coercive measures to force Russia to use its assets for reparations.

– Where is the International Register of Damage located?

– It is located in The Hague. We symbolically choose the capital of justice – the International Criminal Court and the International Court of Justice operate there, and the Peace Palace, where the International Centre for the prosecution of Russia’s crime of aggression against Ukraine was established, and consequently, the International Register of Damage, are all in close proximity to each other.

 – When will the International Register of Damage start its operations?

– The Register of Damage is set to launch officially on on 2 April 2024. By then, the first group of affected individuals – those who lost housing – will be accounted for. This data, currently held by Ukraine, is managed by the Ministry of Infrastructure in the register of damaged and destroyed property. In the following month or two, attention will shift to other categories of affected individuals, particularly focusing on breaches of personal integrity. This includes those who endured torture and CRSV.

I anticipate that by the end of the second quarter of 2024, individuals will be able to submit their claims. We will provide guidance on filling out the forms, either through free legal aid centers or the Office of Register, which will also guide affected individuals on how to apply through local authorities.

Volodymyr DOBROTA,

National Press Club “Ukrainian Perspective”

The material presented herein was prepared as part of the Project “RESILIENT TOGETHER: Improving the system of response to Conflict-Related Sexual Violence (CRSV)”. The Project is funded by the European Union and implemented by the Ukrainian Women Fund in partnership with the Civil Society Organisation “La Strada-Ukraine” and the Ukrainian Women Lawyers Association “JurFem”, as well as the Office of the Deputy Prime Minister for European and Euro-Atlantic Integration of Ukraine and the Government Commissioner on Gender Equality Policy.