Reparations for War in Ukraine: A Harm-Based Approach

[Professor Luke Moffett is chair of human rights and international humanitarian law at Queen’s University Belfast.]

As the war in Ukraine continues in its third year, efforts for accountability and redress are increasingly turning to external adjudication and intervention. Whether through the International Court of Justice, International Criminal Court (ICC) and European Court of Human Rights to the increasing involvement of the Council of Europe (CoE) to create new mechanisms. This is apparent with the creation of the Register of Damage in May 2023, which although it is a unique mechanism within the CoE, it has been used by the United Nations in other protracted conflicts. More recently, in July 2024 the Ukrainian government agreed the first steps to create a compensation claims commission to process claims before the Register against Russia.

Much of the debates around reparations for the war in Ukraine have centred on the issue of the use of assets. While there is a keen justice interest in ensuring those responsible pay for their crimes, the confiscation of State assets to be repurposed for reparations distracts from the rights of victims to receive an adequate, effective and prompt remedy. Such a responsibility to remedy victims within its jurisdiction remains the responsibility of Ukraine until Russia pays its dues (Principle 16). Recent progress around assets has turned away from prioritising them for the benefit of war victims, to now enabling Ukraine to continue to fight through the purchase of Western weapons. The creation of the Registry of Damage is a welcome first-step, but is just a repository, not a delivery mechanism for reparations.

This post reflects on a number of recent events and discussions on reparations for the war on Ukraine. It argues that international and domestic efforts can take a new approach by focusing on harm suffered by war victims that moves beyond a narrow war crimes or a court-based approach. 

The Current Harm Caused and Responses to the War in Ukraine

The scale of harm caused to Ukraine is widespread and pervasive, ranging from over 10,000 civilians killed, 20,000 seriously injured or wounded, 2 million properties damaged, along with widespread damage to the environment, cultural property, infrastructure, and economy, in particular farming. The conflict is not abating. May 2024 witnessed one of the highest civilian casualties with at least 174 civilians killed and a further 690 injured from missiles and air-dropped bombs on urban areas. The start of July witnessed the killing of dozens of civilians at the Ohmatdyt’s children hospital.

The World Bank, UN and CoE report has found that the damage and loss caused to Russia’s invasion of Ukraine has cost $486 billion. This includes damage to infrastructure, homes and businesses as well as lives lost and those injured. 5.9 million Ukrainians remain displaced outside of Ukraine and a further 3.7 million within Ukraine, accounting for nearly 22% of the population. For Ukraine supporting its citizens affected by the conflict is amounting for 12.9% of its GDP, while running of $43 billion budget deficit this year. This is not surprising given the deadly and disruptive effect of Russia’s continued bombardment of civilian areas, which means that Ukraine has to find $100 million per day to cover the daily cost of the war.

In relation to Ukraine there has been a hyper-focus on war crimes, which is understandable given the blatant targeting of civilians and civilian objects, but often reflects a Western legal approach to mass atrocities. While there may be 122,000 war crime cases before the Office of the Prosecutor General, these will unlikely see those responsible prosecuted. Even if they are convicted, they would be unlikely to have the resources to fund redress to their victims. 

The ICC has been a prime example of this, where lengthy trials against indigent convicted persons have resulted in legal acrobatics to offer inadequate reparations to victims of international crimes without any resources to deliver them. It is doubtful that the issue of arrest warrants for senior Russia leaders will see them before the Court in the Hague or their personal assets used for reparations to Ukrainian victims. In the absence of perpetrators’ assets, the ICC Trust Fund for Victims has failed to keep pace with the Court’s reparations orders. It has struggled to raise €2-5 million per year and is running a deficit for the past two years. In February 2024, the ICC in the Ongwen case awarded reparations totally $57 million to nearly 50,000 victims, bring a total of nearly $100 million awarded by the Court in the past decade in five cases, with only a fraction delivered (~$13 million).

In light of this context, delivering reparations when there is a continuous flow of victims and a squeezed budget raises fundamental concerns over to what extent should reparations be delivered in the midst of armed conflict, so as to meet the obligations to prompt redress, or should a State like Ukraine wait under the end of hostilities and the dust has settled to adjudicating on who gets what. The European Court has offered a wide margin of appreciation in such cases to States, but this is not necessarily in the interests of victims.

With many contemporary challenges around the world a range of experts and institutions jump at the chance to promote their ideas and legitimise the success of their own work. This market of ideas is often heavily tilted to those with the money and influence to shape the debate to their own ends. We see this with the issue of prosecutions and efforts for a tribunal for aggression, which undoubtedly needs to be punished, but do we need to spend billions on lawyers, are trials the best way to respond to wars of aggression and war crimes? 

I am of the view that it is better for money to be directed to those most affected by conflict, rather than simply lining the pockets of lawyers. Criminal trials do not equate to justice for victims. I do not want to peddle an alternative view for sake of saying something different, but to constructively critique current efforts to better redress the harm suffered by Ukrainians from Russia’s war of aggression. Victims are not voiceless, but in the aftermath of violence they are often trying to survive and piece together their lives that takes time for them to collective mobilise to voice their views on such issues, leaving them often drowned out by more influential actors. 

An Administrative Approach to Reparations

Any future reparations claims commission for Ukraine should be an administrative, rather than a judicial led one. Many countries establish administrative reparations programmes as a means to deal with mass claims that would otherwise overburden and clog the judicial system. This is intended to speed up the claims process, reduce the evidential burden to victims and offer a broader range of measures than just compensation, such as the Iraqi Yazidi Survivor Law that will provide compensation alongside with housing, rehabilitation, and memorials through inter-ministry coordination. Such processes are not always rosy, requiring substantial long-term funding (often decades), subject to judicial and political challenge, and prioritising resources to those most affected. The UN guidance on reparations remains declaratory on the norms for violations in war, and more recently we have outlined more specific best practices on how to implement such norms under the Belfast Guidelines.

The efforts towards establishing a compensation claims commission for the war in Ukraine need to keep in mind that compensation by itself will not effectively remedy the harm caused and needs a nuanced approach to eligibility. Many reparations programmes developed at the domestic level use a range of eligibility criteria to concentrate resources as those most affected and vulnerable as a result of a conflict. Some countries link eligibility to a general series of conflicts, ‘Troubles’, ‘war’ or simply to civilians, others to specific violations, such as torture. Such a broad or specific focus on harm reflects a choice to also reduce the evidential burden on victims, who will often be displaced, have lost their personal identification or medical records, and continue to suffer the effects of such violence through loss, chronic pain or disability.

A Harm-based Approach

A harm-based approach would have three advantages over crime/violation specific approaches: eligibility; recognition; and avoidance or mitigation of secondary victimisation. With regards to eligibility, a crime or violation approach would make reparations too restrictive and arbitrarily excluded victims who have suffered similar harms, only their perpetrators’ intent or circumstances differed. We can see this through four examples. First a farmer in a tractor working on his land triggers an anti-tank mine and has his legs blown off. In this instance it may be difficult to determine who laid the mine, with over 2 million mines covering nearly 30% of Ukrainian territory. Limiting claims to violations directly committed by Russia would be difficult in such circumstances, and the use of landmines, in particular anti-tank ones, is not prohibited under IHL nor considered a war crime.

Second, a woman going to work in an office is killed by shrapnel from a successful strike by an antimissile defence system to an incoming Russia missile. Third, an elderly man cycling past a Russian checkpoint is killed by a Ukrainian loitering munition causing a secondary detonation to the munitions stored at the checkpoint. Fourth a girl crossing a street is hit and killed by a Ukrainian army vehicle rushing to the frontline. In each of these scenarios, none of the injuries or deaths will amount to a war crime or a violation of human rights, thus excluding them from claiming through a reparations scheme framed around such crimes or violations. 

Such harm is often chalked down to collateral damage, which is not recognised as a right to reparation under international law. For instance, the European Court in the Kosumova v Russia held that shrapnel that killed a civilian from rebel mortars used in an ambush on State forces was held to not be a substantive violation of the right to life and therefore not compensatable. In general terms the European Court has been a poor benchmark for reparations, often only awarding compensation in armed conflict in limited cases, compared to the diversity and innovation of the jurisprudence of the Inter-American Court on redress.

Instead of being based on violations or crimes, a harm-based approach would require claimants to show how their harm (death, injury or other loss) was connected to the armed conflict. For instance Iraqi Law No. 20 of 2009 allows victims of war operations, military mistakes and terrorist operations to be eligible to claim. This causal link to the conflict and harm is easier for victims to establish, than the legal elements of a crime (intent/knowledge) or violation (jurisdiction and responsibility). A harm-based approach would also recognise direct and indirect victims, such as those who end up being carers of those disabled or are psychologically injured from witnessing the death or serious injury of a loved one, as included in the Northern Ireland Troubles Disabled Victims scheme. A harm-based approach also recognises that civilian harm during armed conflict is often not one-off, but they can suffer multiple, aggravated and intersectional harms, which have long-lasting consequences on their life, as well as their families and communities. As such there may need to be consideration of how multiple harms can be managed, whether through accepting claims under different categories of harm or topping up benefits to reflect the aggravated harm of each violation.

An issue in many countries emerging from conflict is the prioritisation of veterans who have suffered harm and their needs being prioritised over civilians, given their sacrifice for the country. The UN Commission of Inquiry has documented numerous cases of torture by Ukrainian prisoners of war in Russian detention sites. These individuals could be included within a reparations programme, and evidential presumptions of them suffering torture and/or sexual violence could be spatial made to those who were detained in specific sites. They may need to be specialised care for veterans separate from care pathways for civilians, but this may increase competition between claims for redress in the face of limited funding.

As the armed conflict in Ukraine becomes more protracted, victims cannot wait years or decades for reparations. Efforts are underway to deliver reparations to victims of conflict-related sexual violence through an urgent interim reparations pathway. However this is aimed as a pilot project of 500 individuals to receive compensation, when victims of such violations have complex health needs that require short and long-term interventions. 

Elderly, disabled and torture victims also need to be prioritised for similar urgent reparations measures as a means to mitigate their harm being aggravated by time. Any interim measures do not absolve Ukraine of its obligation to ensure victims have access to an adequate, effective and prompt remedy. Reducing evidential burdens or offering specific measures to such vulnerable victims can also be a means to mitigate secondary victimisation. Any reparations process needs to minimise victims being further harmed by the process, such as not having to repeatedly evidence and speak about their trauma. Such a ‘do-no-harm’ ethic would ensure there was no bias, discrimination and marginalisation in the process, as well as ensuring effective data protection of claimant’s personal data from leaks or hacks.

Final Remarks

There are a number of registers being created or already operational in Ukraine that record civilian harm. However registers for loss and damage are just a first step in delivering reparations. Isomorphic technocratic approaches to reparations risk paying lip-service to redressing civilian harm. The danger with multiple registers is that information can be duplicated, become dated and redundant with victims facing repeated bureaucratic processes. This has been seen with the recent Ukrainian draft law 10256 for recording persons whose life and health have been harmed by Russia’s armed aggression, which has been criticised for cataloguing victims’ harm, but not actioning provisional reparations to victims. Any future compensation claims commission for the war in Ukraine needs to take a comprehensive approach in both eligible victims as well as using compensation along with other measures to redress their harm. A harm-based approach focuses our attention on remedying the harm caused by armed conflict to civilians, while mitigating any further harm in victims seeking redress.