Ukraine has endured unprecedented levels of destruction and human rights violations since the onset of Russian aggression in 2014. Since the full-scale invasion in February 2022, infrastructure damage is estimated at nearly USD 152 billion, with projected recovery and reconstruction needs amounting to USD 486 billion over the next decade.

In response to the aggression, the United Nations General Assembly recognised the need for an international mechanism to assist Ukraine in obtaining reparations for damages caused by the Russian Federation’s wrongful acts. It recommended creating a register to document evidence and claims of damage, and to coordinate evidence gathering. As a result, the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine (the Register) was established on 12 May 2023 by the Council of Europe’s Committee of Ministers. The Register was launched on 2 April 2024, initially focusing on claims related to damages or destruction of residential property. It is anticipated that 6-8 million claims within 45 categories will be submitted overall. While operations of the Register are being discussed widely, this post succinctly delves into two specific issues: the potential funding sources for the compensatory mechanism, and the time restrictions regarding the damage covered.

What are the potential funding sources for the compensatory mechanism?

One potential avenue would be to repurpose Russian Central Bank assets currently frozen worldwide. While the transition from the freezing to the confiscation of these assets has been extensively discussed from diverse perspectives, G7 leaders have proposed providing Ukraine with a loan backed by future income generated from these frozen assets. The modalities of this loan, including its intended purpose, are yet to be defined. However, as Ukraine has already stated, the proposed USD 50 billion loan would address its most pressing needs in 2025 and enhance its resilience in the midst of a full-scale war. Arguably, this leaves no room for the amount under the loan to fund the recovery of damage recorded by the Register. Indeed, funds received through the loan might not necessarily be the most appropriate source for recovering damages caused by the aggressive war.

However, it should be noted that the loan solution proposed by the G7 would not be incompatible with the seizing of frozen assets by specific countries in order to fund Ukraine’s compensation mechanism. For instance, the recently enacted REPO Act in the US allows the President to confiscate Russian sovereign assets under US jurisdiction to assist Ukraine in its defense against Russia’s aggressive war, and to compensate Ukraine and its people for damages caused by Russia. Estonia has recently enacted a law allowing the use of assets belonging to individuals in Russia, frozen under international sanctions, to compensate Ukraine for war damages. In sum, a victim-centred approach to the Register must be adopted, ensuring that human rights violations are redressed. This must remain a priority among the various purposes for which the potential funds might be used.

Why does the Register exclude coverage of damage occurred before February 2022?

As defined by Article 1.1 of its Statute, the Register shall serve as a record of damage, loss, or injury caused on or after 24 February 2022. But why was the Register limited to events occurring from February 2022? Why does not cover damage caused by Russian aggression from 2014 to 2022? According to the Register’s Executive Director, the explanation is that ‘unfortunately, the global community did not recognize the events since 2014 as an act of aggression’ until the UN General Assembly adopted its resolution in March 2022. In other words, the time limitation is justified by political considerations: limiting eligibility to claims after February 2022 facilitated the swift establishment and launch of the Register within an impressively short period of time.

Does this mean that claims for events from 2014 to 2022 will be excluded from consideration by the potential claims commission? No, it does not. The Register is only the first element in the compensatory mechanism, with the other two being the claims commission and the fund, as reflected upon above. The modalities of the claims commission are not defined yet and are currently being negotiated between Ukraine and its partners. Within these negotiations on claims commission’s modalities, there is hope that space will be found for potential redress of human rights violations that occurred before February 2022.

In essence, the wheels of justice turn slowly but grind exceedingly fine. Establishing the Register seems to be setting the framework for this wheel of justice. However, whether this wheel will grind finely, swiftly, or at all largely depends on whether sufficient funds will be available to compensate the affected individuals, legal entities, and the State of Ukraine.

Read more:

• One year on, US journalist Evan Gershkovich remains a state hostage in Russia.
• Ukraine v Russian Federation – ICJ Continues to Struggle with the Grounds of Racial Discrimination.
• Museums and Missiles: Russia’s Attack on Ukrainian Heritage Highlights the Need to Protect Cultural Rights.
• Balancing Acts: The Intricacies of Enforcing ICC Arrest Warrants Against Heads of State.