Russia’s invasion of Ukraine: UN adopts resolution calling for war reparations

Ruth Green, IBA Multimedia JournalistFriday 16 December 2022

On 14 November, the UN General Assembly adopted a resolution calling on Russia to pay war reparations in the latest addition to intensifying efforts being made by multilateral institutions to hold the Putin regime to account for its ongoing aggression in Ukraine.

The historic resolution recommends that member states establish an international register to document evidence and claims against Russia, as well as an international mechanism for damage, losses or injuries sustained since 24 February.

94 countries supported the motion. Fourteen – including Russia, China and Iran – voted against it and 73 – including Brazil, India and South Africa – abstained. Although Russia’s veto power has prevented the Security Council taking action against the country, no such veto power exists at the General Assembly and this latest move marks its fifth Ukraine-related resolution since the invasion.

The resolution has been hailed as a positive response to calls from within Ukraine to ensure that victims of the war are duly compensated. Jennifer Trahan, Clinical Professor at New York University’s Centre for Global Affairs, believes it will help provide the momentum needed to help Ukraine’s post-war recovery. ‘Given that the General Assembly resolution has been passed, I do think this measure will bear fruit,’ she says. ‘The damages are just absolutely massive. There will need to be a huge recovery programme for Ukraine and this will need to be implemented.’

However, Sara Elizabeth Dill, a partner at Anethum Global and Treasurer of the IBA War Crimes Committee, says in practice seeking compensation may still prove challenging. ‘Unfortunately, historically it has been difficult, if not impossible, to seize funds held by those who have committed war crimes or other atrocities,’ she says. ‘The UN Resolution is more symbolic, as questions remain as to how this will actually occur in a process that would be lawful under international law.’

What has happened is a threat to the international legal order. It is not solely a regional issue and deserves a response through the United Nations

Jennifer Trahan
New York University’s Center for Global Affairs

There are also continued calls to create a special international tribunal focused on prosecuting Russia for the crime of aggression, which falls outside the jurisdiction of the International Criminal Court (ICC) as Russia is not a state party.

At the end of November, European Commission President Ursula von der Leyen announced plans to establish a specialised court to investigate and prosecute possible war crimes committed by Russia in Ukraine. The Commission proposed two options: either a special independent international tribunal based on a multilateral treaty, or a specialised hybrid court integrated in a national justice system with international judges. 

During the IBA’s recent Annual Conference in Miami, Beth Van Schaack, US Ambassador-at-Large for Global Criminal Justice, remarked that proposals for the European Union to partner with Ukraine to establish an international tribunal were promising. ‘[This would] lend it the legitimacy that these are crimes that are being committed within the continent of Europe and the manifest violation of the UN Charter within Europe,’ she said. 

Ukraine’s Prosecutor General, Andriy Kostin, also praised Europe’s support for a court during the session. ‘We are deeply appreciative of the Parliamentary Assembly of the Council of Europe and the European Parliament for their positive stance over the matter,’ he said. ‘We hope that individual members of the international community would support this initiative as well.’  

However, Trahan, who is also Convenor at The Global Institute for the Prevention of Aggression, believes that securing accountability for Russia’s aggression in Ukraine is not just Europe’s responsibility. ‘What has happened is a threat to the international legal order,’ she says. ‘It is not solely a regional issue and deserves a response through the United Nations. When a permanent member of the UN Security Council invades a neighbouring country with impunity, that is a concern for the whole global order and stability.’

She’s also concerned that some aspects of the European Commission’s proposals could prevent heads of state and foreign ministers from being prosecuted. ‘The case law says that to avoid immunities a tribunal must be established by the international community as a whole,’ she says. ‘It is very unclear whether a tribunal, established by the EU, and with General Assembly recommendation would be such a tribunal. It might well not be. Given that the crime of aggression is a leadership crime, to have immunity apply would defeat much of the purpose of establishing a tribunal. For this reason, establishing the tribunal by a bilateral agreement between the UN and Ukraine, after the recommendation of the UN General Assembly, is much the preferable solution.’

There’s also still the burning question as to how a special tribunal, in whatever form it takes, would be funded, says Dill. ‘From a practical standpoint, the ICC is already struggling with funding and resources – in recent weeks defence counsel and staff have testified as to inequality and inadequacy in funding. Staffing issues are also prominent. I would question whether funds are available, or if this would even be feasible to set up.’

As Russia rejects any proposals for a 'Christmas ceasefire' in Ukraine, Dill says it’s incumbent on other states to negotiate peace talks and seek accountability and redress for the victims of the war in Ukraine. ‘One of the prominent aspects of this conflict was the initial response of most of the world to take sides,’ she says. ‘As we see countries such as the United Arab Emirates attempting to stay neutral and negotiate between the parties, we have to hope that there will be others who can assume the role of a neutral arbiter – either in the peace process, or in any prosecutions for war crimes. Unfortunately, accountability is not always possible or realistic, and thus we should also be looking at mechanisms or processes, outside the international criminal process, that will help survivors and victims move forward with their lives after the conflict.’ 

Image: A United Nations International Organization for Migration vehicle. Image credit: PhotoSpirit/AdobeStock.com

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