Will Russia offer reparation to Ukraine?

There does not yet seem to be an end in sight to the war in Ukraine. But the international community is already discussing how Russia might be forced to pay for the damage caused by its army. On November 14, a UN General Assembly resolution calling on Moscow to pay reparations received 94 votes in favor. Fourteen states voted against the resolution, and 73 abstained.

In September, Ukrainian Prime Minister Denys Shmyhal estimated the direct physical damage as a result of the war so far at $326 billion. He told a meeting in Brussels that World Bank experts had verified the sum, which was likely to have increased by the end of the war. Russia has already rejected the resolution. Russian Ambassador to the UN Vasily Nebenzya said that the document was “legally null and void.”

Reparations are effectively compensation payments made by a state for damage it has caused with its criminal actions. International institutions or a post-war peace treaty determine the sums and the nature of the payments, explained international law expert Paul Gragl of the University of Graz in Austria. One of the best-known cases of reparations concerned the German Reich after its defeat in World War I in 1918. The Treaty of Versailles required the payment of more than 200 billion gold marks over decades. The last transfer was made by the Federal Republic of Germany, the legal successor to the German Reich, in 2010. Germany also had to pay reparations to the Allies after World War II.

Other examples include Iraq’s reparations for the occupation of Kuwait in 1990-1991, based on UN Security Council resolutions. They are considered a precedent, as noted by the Ukrainian permanent representative to the UN General Assembly, said Paula Rhein-Fischer, a research associate at Cologne University’s Academy for the Protection of European Human Rights (IORR).

UN General Assembly resolutions are not legally binding. It’s more a case of political weight because the resolutions reflect the opinion of the international community, Gragl argued — “a political intention aimed at not letting it be forgotten that Russia is obliged, as the aggressor, to make up for these damages.”

Paula Rhein-Fischer also spoke of a political signal. Russia was unlikely to be persuaded to pay reparations by existing international mechanisms, she said. “At the United Nations International Court of Justice [whose decisions are legally binding (Editor’s note)] there is a jurisdictional problem. It has jurisdiction only if both states have agreed to become parties to the case. The court is already hearing Ukraine’s case against Russia for violation of the Genocide Convention, but compensation will be limited in this case.”

A legally binding decision on reparations could, therefore, be made by the International Criminal Court in The Hague (ICC). “It is entrusted with convicting individuals of genocide, crimes against humanity, war crimes and the crime of aggression, although the ICC cannot prosecute the crime of aggression committed by Russian decision-makers. This is because in this case prosecution of this crime would require a UN Security Council resolution, which Russia, as a permanent member of the Security Council, would veto. Therefore, the establishment of a special tribunal is under discussion,” said Rhein-Fischer.

In theory, the European Court of Human Rights (ECHR) could obligate Russia to pay reparations, she continued. However, since Russia left the Council of Europe it is no longer subject to ECHR rulings and has not been a party to the European Convention of Human Rights since September 2022. Thus, the court could only require Russia to compensate Ukraine for the destruction caused from February to September 2022.