01 Apr Sanctions for War, Reparations for Peace?
[Luke Moffett is a law reader at Queen’s University Belfast and Principal Investigator on the “Reparations, Responsibility and Victimhood in Transitional Societies” project.]
Over the past month it seems like the international status quo has been turned upside down as Russian tanks rolled over the border into Ukraine. There has been a resounding condemnation of Russia’s aggression and disquiet that the UN Charter system has failed its core objective to ‘save succeeding generations from the scourge of war’. The response of the international community has been to rally around Ukraine as good neighbours, rather than allies. The West, wanting to avoid a direct military confrontation with Russia that could escalate into a nuclear war, and the UN Security Council paralysed by Russia’s veto power, has been left using economic sanctions, export controls and defensive military aid. At the start of March 2022, Ukrainian President Zelensky called on Russia to learn the word ‘reparations’ a week into the invasion indicating that there will be a cost to pay for the breach of Ukraine’s territorial sovereignty and the violence brought upon its people. Ukraine’s successful application for provisional measures to the International Court of Justice (ICJ) over Russia’s ‘manipulation’ of the notion of genocide to justify its aggression saw the Court finding that Russia should suspend its military operations, but at this stage avoided addressing Ukraine’s demands for ‘full reparation for all damage caused’. With the possibility of peace talks to bring an end to the conflict, this post outlines how sanctions can be related to reparations, as a means of normalising relations at the end of hostilities, and the extent of the obligation to make reparations for waging an aggressive war.
The purpose of sanctions are to censure wrongdoing and to have consequences for the wrongdoer. As a countermeasure to another party’s breach of an international legal obligation, sanctions revolve around expressing moral messages and as a means to vindicate the law. There has been much derision of sanctions as to whether or not they are effective in changing the behaviour of wrongdoers, or just serve to cause hardship to civilian populations. Although there have been greater efforts to make sanctions more focused on individual wrongdoers whether as political leaders, military commanders or companies, they still have an indirect effect on civilians and notorious perpetrators like Syrian President Bashar Al-Assad find means to circumvent them. Since sanctions have been introduced against Putin and his supporters, we are witnessing a backlash against Russians as a people, with Russian students being threatened with visa revocations and kicked out of universities, and Russian civilians fighting over basic food stuffs like sugar. To the even the more absurd lengths of Russian cats being banned by the International Cat Federation from competitions, as if that is going to be the straw that breaks the Russian army’s back!
As sanctions escalate with Russian ships being banned from British and Canadian waters, ratcheting up the economic consequences, and protestors occupying a Russian oligarch’s property in London, there are proposals in the US Congress to liquidate the assets seized of identified supporters of the Putin regime and spend them on humanitarian aid for the Ukrainian conflict. This raises two substantive issues on seizing assets that could be used for humanitarian aid and reparations with regards to the legality and victim eligibility. The legality of disposing of the assets of Russian businesspersons and companies without a process where they can defend their rights or argue there is no causal link between them and the invasion is questionable. It is one thing to impound or freeze assets subject to unilateral or EU sanctions, but it could amount to a violation of property rights in liquidating or disposing of assets for the purposes of reparations. Under anti-corruption and anti-terrorism rules, the assets of those identified of such sanctions can be disposed of with the intention of them being used for victims or affected countries, where there is a court decision against them, such as with victims of the Marcos regime in the Philippines and former President Abaca in Nigeria. Such processes take years, requiring the owners to prove that their assets did not come from illegal enterprises. This technical and legal process means that sanctions are aimed more at disrupting the criminal enterprise, by freezing its use for further illicit activity, rather than as a funding stream for victims. Moreover, like Gaddafi and Libyan assets over a decade ago, hundreds of billions of Russian wealth helped to lubricate financial centres like London, despite security warnings that compromised more robust Western pushback against Putin.
With regards to the second issue of victim eligibility, which individuals and groups will be able to access such assets if they are liquidated? In recent weeks the US has split $7 billion of Afghan assets in its jurisdiction after the Taliban took power, with half of the money being designated for humanitarian aid and the other half for 9/11 victims. With 95% of Afghan civilians unable to afford food, and with 8 million of them mostly children facing starvation, the withholding of such funds seems as despicable as the crimes they seek to remedy. This is despite 9/11 victims being compensation through the 9/11 Victim Compensation Fund, whereas only a few Afghan victims of coalition and Taliban violence have received diminutive condolence payments. Sanctions and related reparations can reflect the hegemony of international relations and the hierarchy of victimhood, where some victims are more deserving of redress than others. It is better to see reparations as a measure that can be reached to alleviate sanctions once the continuing violation is ceased in an effort to remedy the breach. In the case of Russia invading Ukraine, even if a peace deal was signed tomorrow (highly unlikely) sanctions would still persist. This is where reparations for aggression can signal an effort to repair the harm caused by such an egregious breach of international law, which should be a part of negotiations and relaxing sanctions.
Reparations for Aggression
Reparations for one State invading another brings to mind the Treaty of Versailles and the war guilt clauses that imposed responsibility for the total cost of the war on Germany. While there remains the perception that the harsh imposition of the cost of reparations on Germany sowed the seeds for the rise of Hitler and the Second World War, the reality was more complex. In the end Germany resisted paying most of their reparations and at the end of the Second World War settled most claims with countries they invaded with relatively small or no reparations in favour of securing peace.
Reparations for aggression ultimately depend on who wins the war, whether through outright victory of one side, settlement or cessation of hostilities. The old adage of ‘to the victor go the spoils’ no longer rings completely true. In the past few decades there has been some practice of the aggressor paying the victim State, such as Uganda’s and Burundi’s invasions of Tanzania in the 1970s, the UN Security Council calling on reparations to be made for Israeli’s bombing of Tunis in the 1985 and South Africa’s occupation of its neighbours in the 1970s and 1980s, such as Lesotho. Of course, some States may waive reparations, as victory can be its own vindication, for example the UK with Argentina over the Falklands War, or independence, as with Kosovo.
The PCIJ in its 1927 judgment in the Chorzow Factory case sets down the standard for the extent of the reparation obligation in international law as ‘reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.’ Applying this to wars of aggression, ordering full reparation for an invasion has been exceptional, with only the UN Security Council obliging Iraq in 1991 to make full reparations for its invasion of Kuwait. This was achieved through the UN Claims Commission (UNCC), responsible for sifting through claims and evidence, which was only completed this year with $52.4 billion paid out to 1.5 million claimants. This occurred at the same time of sanctions and an effective trade embargo imposed on Iraq between 1990-2003 when it was invaded by the US. While no reparations were ever paid by the US to Iraq, Kuwait and other victims were able to leverage redress of Iraqi aggression as a cost against its oil exports, rather than one lump sum. In contrast the Ethiopian-Eritrean Claims Commission excluded violations of jus ad bellum.
Turning to the Russian invasion of Ukraine, the notion of ‘full’ reparations for such aggression is likely to cost Russia hundreds of billions of dollars given the scale of cities like Mariupol being decimated. Yet, in practice reparations for aggression do not reflect the total cost of a war, as it can make them unfeasible. The ICJ in a long-awaited reparations judgment in DRC v Uganda, ruled that Uganda was obligated to make ‘full’ reparations for its occupation and annexation of Ituri in eastern DRC. However, the court ordered Uganda to pay the DRC $325 million USD in reparations (a fraction of the claimed $11 billion) for the killing of 10,000-15,000 civilians, sexual violence, use of child soldiers, damage to property, displacement and damage to natural resources (for some good analysis of the decision see here and here). This lower amount reflected that the ICJ was unable to specifically quantify the loss suffered, the extent of harm and the numbers of victims, given the evidence had been destroyed or rendered inaccessible over years since the armed conflict, requiring some flexibility. In addition, the Court held Uganda responsible to make reparations for violations committed by non-state actors in territory it occupied, reflecting Article 43 of the 1907 Hague Regulation IV on due vigilance. This may apply to Russian-occupied territory where separatist forces and mercenaries are fighting alongside it, but not under its effective control.
Unlike many reparation programmes for civil wars, reparations for wars of aggression cover not only civilian victims, but all losses, including combatants. This is a recent development out of human rights law, as the Treaty of Versailles (Art.231) recognised that Germany took responsibility for causing ‘all loss and damage’ to Allied nations, but its limited resources meant compensation would only be for ‘all damage done to the civilian population’ (Art.232). Similarly, the UNCC and the EECC prevented claims for the deaths/injury of combatants and losses of military hardware. However, HRC General Comment 36 (para.70) states that aggression violates the right to life ‘ipso facto’ suggesting that not only civilians will be eligible as victims for reparations, but also potentially soldiers of an invaded State (though there was insufficient evidence in the DRC v Uganda case). This marks a departure from the traditional State-centric understanding of the State as the victim of aggression. Darcy notes this is an increasing trend with its inclusion as a crime under the Rome Statute and its provisions for victim reparation.
One option to realise reparations for aggression in the Ukrainian conflict could be impose a reparation ‘tax’ on Russia oil and gas imports to fund reparations, similar to that used to fund the UNCC. Yet as long as Putin and his supporters remain in power it is unlikely that the UNSC will impose a claims commission like it did with Iraq. Alternatively, there may be bilateral agreements between Ukraine and Russia, or US and EU with Russia that the removal of sanctions would be subject to reparations being made to Ukraine. There is some practice to suggest that reparations can be a means to ease unilateral sanctions. For instance, in 2020, Sudan paid $335 million for its role in Al-Qaeda bombings in Africa after the dictator Omar Al-Bashir was overthrown to get its sanctions removed for being listed as a State-sponsor of terrorism. Such an approach reflects reparations not only as a means to remedy wrongdoing, but to rehabilitate the moral standing of a country and normalise its status in international relations, coming back in from the cold to follow the rules of the community of nations.
The popular discourse is that Russia’s invasion of Ukraine has shattered the appearance of 75 years of the UN Charter avoiding a war in Europe (obliviating the wars in the Balkans, Chechnya and Cyprus). Russia’s invasion has struck at the fundamental heart of the international legal system, but that system will continue to exist at the end of this war and gives shape in how to redress some of the harm caused. The full cost of Russia’s aggressive war on Ukraine remains to be seen, but already hundreds, if not thousands, of civilians have died, and cultural property and key infrastructure has been destroyed. Reparations are not a means for wrongdoers to buy-off or silence their victims. They are measures to reinforce the law after its breach and to vindicate victims’ rights. At the same time reparations should not be humiliating or financially unfeasible to an aggressor, but a means to find balance after war. Sanctions are likely going to persist against Russia for years, but reparations to Ukraine may be a pathway to their end and a means to benefit those who have suffered the most from Russian aggression.