International Register of Damage: One Step Closer to Reparations

On May 17, at the summit of the heads of state and government of the Council of Europe, the establishment of a Register of Damage caused by the aggression of the russian federation against Ukraine was announced. The agreement was signed by more than 40 EU member states, as well as the United States, Japan, and Canada.

The Register was introduced to record evidence and information about claims of individuals and legal entities, as well as the Ukrainian Government, regarding losses or damage that russia caused by the war.

In fact, it should become the first stage of a comprehensive international mechanism for providing compensation to victims of russian aggression. Let’s find out how the Register will work and why this is an important step towards russia paying for its war crimes.

What is this Register?

Since the beginning of russia’s full-scale invasion of Ukraine, the issue of creating a special mechanism to compensate for losses arising from the illegal actions of the aggressor state has been discussed at the international level. A similar mechanism has already been used, for example, after the Iraq-Kuwait conflict in 1990 and the war between Ethiopia and Eritrea in 1998–2000. However, it took more than a year to make a decision and authorize the creation of the Register itself.

The Register of Damage is not only a set of data and documents that testify to the damage from illegal actions of russia. First of all, it is an international organization, a platform for intergovernmental cooperation, operating within the institutional framework of the Council of Europe.

To date, 44 states have supported the agreement on the Register of Damage or promised support after the completion of internal procedures. Others will be able to do so in the future.

The agreement provides that the Register is created for 3 years, with the possibility of further extension of its operation.

It will have the status of a legal entity, which will be physically located in The Hague in the Netherlands. To simplify the submission of applications by affected persons, it will also have a representative office in Ukraine.

The Register will be managed by:

• The Executive Director and the Secretariat to ensure its maintenance and operation;
• The Board to verify the collected evidence and include applications in the Register;
• The Conference of Representatives of the Participating Countries to appoint the Executive Director and approve the procedural documents for the operation of the Register.

It is important that Ukraine will play a key role in the formation of the Register’s management bodies. After all, only Ukraine will propose the candidacy of the Executive Director, as well as one of the candidates for the Board members (7 of them will be elected).

What will the Register of Damage do?

The direct functions of the Register will include:

• receiving and processing information from the reimbursement applications and attached evidence;
• classifying and systematizing the submitted applications;
• assessing whether they meet the requirements for inclusion in the Register;
• registering applications for further consideration and decision-making.

Importantly, the Register will not deal directly with claims for damage reimbursement and, in particular, decide on the allocation of any payments or compensations. A special Commission will be responsible for this, which will be created later.

It will be possible to submit an application to the Register for compensation for losses or damage caused:

• on February 24, 2022, or later;
• on the territory of Ukraine within its internationally recognized borders;
• by illegal actions of russia in or against Ukraine.

The affected legal entities and citizens, as well as the Ukrainian government, represented by its state or local authorities and economic entities under their management, will be able to submit such an application and evidence to it.

It has not yet been decided how, when, and in what form it will be possible to submit an application. The appropriate procedure shall be approved by the management bodies of the Register when they are formed. The Ministry of Justice noted that the priority would be the use of a digital platform for filing applications and evidence, their processing and evaluation.

In addition, it is expected that the international Register of Damage will include information not only on destroyed or damaged property, but also evidence of other types of damage that will be compensable. This includes damage to individuals associated with bodily injuries, the death of a close family member, for crimes of a sexual nature, compensation for damages to forcibly displaced persons and other categories of damage.

The Register is created. What’s next?

The primary task now is to establish the management bodies of the Register. After all, only they are authorized to develop and approve the rules and procedures for submitting applications and the work of the Register itself. For this purpose, a Conference of Representatives of the Participating Countries should be convened, which will appoint the Executive Director and members of the Board.

In parallel, we need to prepare for the actual launch. According to the Deputy Minister of Justice of Ukraine, employees are already being recruited and IT solutions to launch the digital platform of the Register are being developed, as well as its security and protection systems. The government expects that the Register will start functioning in August this year.

The launch of the Register, including its digital platform with all the data on applications and evidence recorded in it, should be the first component of the future international compensation mechanism. This is enshrined in the Charter of the Register. Therefore, it is expected that the next stage will be the conclusion of an international agreement on the establishment of a special commission, authorized to consider applications submitted to the Register and determine the amount of compensation.

What does the Register mean for affected Ukrainians?

In the short term, it is unlikely to seriously impact Ukrainians and businesses affected by the full-scale russian invasion. The already mentioned compensation mechanism is currently the subject of political and legal discussions. Even after its creation, the process of considering applications and paying compensation can be delayed for years, so one should not expect to receive compensation quickly.

But the launch of such a register once again emphasizes the importance of properly recording the losses and collecting evidence to confirm them. Because the potential opportunity to receive compensation will depend on the applicants themselves.

Since the end of last August, the Register of Damaged and Destroyed Property has been operating in Ukraine, with more than 340,000 information messages about damaged property already submitted. Obviously, this information should become the basis for the formation of the Register of Damage.

Therefore, now it is important for victims to properly record their losses, collect evidence to confirm them, and make a notification to the Register of Damaged and Destroyed Property. This can be done through Diia.

What evidence will be required to confirm losses will become clear after the launch of the Register. Therefore, now it is necessary to collect all possible photo and video materials, settlement documents (for example, receipts for construction goods, service acceptance certificates), reports on property valuation, expert opinions, acts of commission examination, acts of the State Emergency Service, court decisions, etc.

A separate issue is how compensation for damages from the aggressor through the international mechanism will be consistent with the existing mechanisms of compensation from the state.

Those who will participate in the eRecovery program should not worry. Such payment is not compensation for damages within the meaning of civil law, and will not prevent receiving compensation from the aggressor in the future.

The opposite situation is for those citizens who want to receive compensation for destroyed housing as a result of military aggression. In accordance with the requirements of Law No. 2923-IX, simultaneously with the provision of monetary compensation, the recipient will be obliged to conclude an agreement on the assignment to the state of the right of claim against russia for damages for the destroyed real estate object in the amount of the compensation received. Therefore, agreeing to payment from the state, one should not expect full compensation for damages from the aggressor.

A lot of work ahead

The conclusion of an agreement on the creation of a Register of Damage caused by the aggression of russia against Ukraine is undoubtedly a significant and fundamental step in the process of bringing the aggressor to justice and paying reparations. After all, as a result of the work of the Ministry of Justice, political and diplomatic agreements were implemented in a real international treaty that imposed obligations on the participating countries to assist in recording the losses caused by russia, and more importantly, to develop an international compensation mechanism in cooperation with Ukraine.

At the same time, the main challenges regarding the introduction of such a mechanism are still ahead.

The resolution of the Committee of Ministers of the Council of Europe only indicates the possibility of creating separate tools to implement the compensation mechanism (the Commission for the consideration of applications or the Compensation Fund). This confirms that today, there is no single agreed approach to the model of such a mechanism, and it is necessary to continue negotiations between Ukraine and its partners to reach a compromise on this issue.

First of all, this concerns the sources of filling the compensation fund. More than USD 300 bln of reserves of the central bank of russia, as well as private assets of russian oligarchs, which are estimated at USD 97 bln, continue to remain seized or frozen by Ukraine’s allies since last year. However, there are no special changes in the procedure for the confiscation of russian funds and assets in favor of Ukraine yet, and there are many reasons for this. But the accession of a significant number of European states and all G7 member states to the agreement on the establishment of the Register of Damage may indicate a convincing and clear position of the global community on the issue of seizing russian assets. It can also be an impetus to solve these complex issues.

This publication was made possible by the support of the American people through the United States Agency for International Development (USAID) within the SACCI Project. The content of this publication is the sole responsibility of Transparency International Ukraine and does not necessarily reflect the views of USAID or the United States Government.