The first meeting of the Council of the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine was held in the Netherlands. The meeting took place in The Hague, where the Register of Damage is located, and lasted several days (11–13 December).
The Register aims to collect information on the damage caused by Russia’s aggression against Ukraine. It is intended to be the first component of a comprehensive compensation mechanism that will ensure that the aggressor state pays compensation to the victims of the war according to international law. The Registry is expected to begin accepting claims in spring 2024.
During the meeting in The Hague, the Deputy Minister of Justice of Ukraine, Iryna Mudra, presented a proposal on the categories of claims adopted by the Government of Ukraine on 1 December 2023. She expressed Ukraine’s hope that the Council would approve the claims as soon as possible.
In an exclusive interview with a Ukrinform correspondent in The Hague, Iryna Mudra, Deputy Minister of Justice of Ukraine, spoke about her visit to The Hague, the composition of the Council of the Register of Damage, and the critical decisions.
DEVELOPMENT OF A DIGITAL PLATFORM FOR QUICK SUBMISSION AND PROCESSING OF CLAIMS AND SUPPORTING DOCUMENTS
In November, the Council of the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine was appointed. Tell us about the members of the Register’s Council. Who are those people? What are their key responsibilities? What experience do they have in reparations?
On 16 November 2023, the third meeting of the Conference of the Participants of the Register of Damage took place in Strasbourg, where seven members of the Council of the Register of Damage were appointed from among the candidates nominated by the Participants and Associate Members of the Register of Damage.
The Council of the Register of Damage is one of the key bodies of the International Register of Damage and is responsible for ensuring that its functions are carried out. The Council of the Register of Damage is responsible for the development of detailed rules and regulations governing its functioning, in particular, the definition of categories of claims, procedures for accepting, processing, and registering claims, the type of claim form, and the requirements for evidence for each category of claim.
Following a vote by Member State representatives, the Council of the Register of Damage will include the best experts in international law, with experience in compensation mechanisms and reparations, and practical experience in building the evidence base in major litigation and arbitration: Norbert Wühler (Germany), Chiara Giorgetti (Italy), Robert Spano (Iceland), Veijo Heiskanen (Finland), Lucy Reed (United States), Alexandra Mężykowska (Poland), and the nominee from Ukraine, Yuliia Kyrpa.
Each member of the Council of the Register of Damages possesses significant scientific and practical experience and interdisciplinary expertise necessary for the effective functioning of the Register, including in international law, war-related damage assessment issues, damage accounting and assessment, and others.
Many are professors and lecturers in international law at the most prestigious universities. They have experience in judicial and arbitration bodies, have been members of compensation committees, and have worked with reparations in the aftermath of past military conflicts.
The first meeting of the Council of the Register of Damages caused by the aggression of the Russian Federation against Ukraine was held in The Hague. No media were present. Could you please tell us what issues have been discussed?
The first meeting of the Council of the Register of Damage was held in The Hague last week for several days, starting on 11 December, during which both organisational and practical issues of the Register of Damage were discussed.
The main focus of the Council’s work is now to develop detailed rules and procedures defining loss categories, evidence lists, and the procedure for submitting claims to the International Register of Damage to prepare it for the earliest possible launch and receipt of claims.
How will evidence and claims be documented?
Active work is underway to develop and implement a digital platform to ensure the rapid and efficient submission and processing of claims and evidence, given the unprecedented scale of the damage caused and the experience of compensation committees.
The digital platform will be introduced to submit claims and evidence of damage. The information received will be verified, processed, and stored.
But, of course, the collection of evidence will make use of all the possibilities already provided for by the current legislation: certificates, extracts from state registers, information from existing databases, and those created to overcome the aftermath of the aggression. The concept of the Register is that all information on damage that is already available to the State should be used to the fullest extent possible when submitting a claim. Only in exceptional cases should claimants be required to obtain stacks of additional certificates or documents.
As provided for in the Charter of the Register of Damage, the detailed requirements for the form of evidence and the form of compensation claims will be developed by the Council of the Register of Damage and further finalised at the Conference of the Register of Damage.
THE REGISTER WILL RECORD LOSS OF HOUSING, TORTURE, SEXUAL VIOLENCE, AND FORCED DISPLACEMENT
How will the evidence be gathered? How is an evidence base formed? How will it be protected? Who has access to the evidence?
Claims, evidence, and other related information may be submitted to the International Register of Damage by interested natural and legal entities, as well as the State of Ukraine (including its regional and local authorities, state or controlled entities).
It is envisaged that all the evidence that future claimants will use to prove the damage, loss, or injury they have suffered and that will be eligible for the International Register of Damage will be collected, categorised, and stored on a dedicated digital platform. All information and files from claimants will be electronically transmitted to the Claims Commission for consideration and award of compensation once the Claims Commission is established.
The Register Council is currently developing the detailed requirements for the evidence base. But I would like to draw the attention of future claimants to the fact that it is of the utmost importance that all those who have suffered loss, damage, or injury as a result of Russia’s armed aggression against Ukraine collect and preserve as much evidence as possible to substantiate the loss, damage, or injury suffered.
Regarding access to information, data protection rules and exchange of information received by the International Register of Damage, given the sensitivity of the issue, the fact that the Register is international, and guided by the requirements of the Charter of the Register, which stipulates that all information concerning claims and damage received in the future by the International Register of Damage, including any evidence, shall be considered confidential, the standards of protection of information will be extremely high and access will be limited solely to the fulfilment of the tasks assigned to the Register.
What are the categories of damages?
The Government of Ukraine approved the list of categories of losses and damage by the Resolution of the Cabinet of Ministers of Ukraine No. 1256 of 1 December 2023 on Amendments to the Resolution of the Cabinet of Ministers of Ukraine No. 326 of 20 March 2022 and provided corresponding instructions to the Ministry of Justice on submitting it to the Register of Damage as a proposal for possible consideration when drafting the rules and regulations for the operation of the Register of Damage.
Of course, the Council of the Register has the authority to define the categories differently from the ones proposed by the Government of Ukraine. However, since the damage has occurred in Ukraine and the international Register will be established jointly with Ukraine and for Ukraine, it is understood that Ukraine’s proposals will be considered in developing the Register’s rules.
Specifically, the categories are expected to include, among others, claims related to loss of life, torture, and sexual violence, as well as physical injuries, forced displacement and IDPs, loss of property and income, and other forms of economic damage, including damage to critical infrastructure and other state assets, historical and cultural heritage, the environment, and other categories determined by the Register Council.
Will the creation of a mechanism for compensation of losses from seized property of the Russian Federation and its citizens, including abroad, be considered?
Since the beginning of the full-scale invasion, Ukraine has made great efforts to freeze and seize as many so-called Russian assets as possible and transfer them to the international compensation fund for victims of armed aggression.
Let me remind you that the compensation mechanism concept foresees the creation of an international Register of Damage that is to serve as a documentary form of recording evidence and information on the losses caused by the aggression of the Russian Federation for the Claims Committee that is authorised to award compensation, and a Compensation Fund that will collect funds to implement the decisions of this Claims Committee.
In view of the fact that we are talking about Russia’s responsibility for an act of aggression against Ukraine and the fact that Russia as a state must be held accountable for internationally wrongful acts and must fully compensate for the damage caused by such acts, it is envisaged that the compensation fund for victims will be filled mainly from the assets of Russia and persons involved in the armed aggression that will be identified and seized on the territory of the states parties to the international agreement. Such assets will be used to compensate for the damage caused by the aggression.
Discussions are currently underway on the legal mechanisms for filling such a compensation fund to pay compensation. Today, it is strategically important that the policies of foreign states on the seizure and sale of assets of sanctioned persons be coordinated with one another and with the national interests of Ukraine in the provision of compensation to war-affected persons.
RUSSIA MUST BE HELD ACCOUNTABLE FOR VIOLATING INTERNATIONAL LAW
In your opinion, what should be the mechanism for obtaining compensation? Should the victim be required to make a written claim? What kind of documents should be in place?
According to the CMU Order No. 1107-p of 1 December 2023 on Ensuring the Development of Technical Requirements for the Creation of Software and the Transfer of the Right to Use Technical Requirements for the Creation of Software of the Register of Damages Caused by the Aggression of the Russian Federation against Ukraine, the Ministry of Digital Transformation is tasked with ensuring the technical possibility of submitting claims to the Register of Damage for compensation for loss, damage, or injury caused since 24 February 2022 on the territory of Ukraine within its internationally recognised borders, including its territorial waters.
The Register will be integrated with other state registers and user identification services to obtain and verify information confirming the occurrence of damage. This information will serve as the basis for inclusion in the Register for further submission to the Compensation Commission.
What kind of compensation is it?
Broadly speaking, the concept of the international compensation mechanism is based on the fact that the Russian Federation must be held responsible for violations of international law, in particular to those who suffered losses due to the aggression. For this reason, it is assumed that the victim claims compensation and that such compensation should be made available to the claimant.
Accordingly, the system is built around the person of the victim and the losses and damages that he or she has suffered.
For this reason, the overall distribution of the damage categories is divided into three main groups according to the subject matter claimed:
Category (A): damage suffered by natural persons;
Category (B): the State of Ukraine, including central and local government authorities, and state-owned or state-controlled entities; and
Category (C): legal entities, enterprises, including state enterprises, critical infrastructure enterprises, and individual entrepreneurs.
The Charter of the Register of Damage establishes three main eligibility criteria, which will be applied collectively to compensation claims regarding loss, damage, or injury:
1) incurred on or after 24 February 2022;
2) caused on the territory of Ukraine; and
3) resulting from internationally wrongful acts of the Russian Federation in Ukraine or against Ukraine.
Can the victims of the Russian actions receive compensation and assistance for the violence, loss of health, prosecution, and moral harm inflicted by the Russian Federation since 2014?
The international community, in particular at the level of the United Nations, in its resolution titled ‘Aggression against Ukraine’, among other things, condemns the aggression of the Russian Federation against Ukraine in violation of Article 2 (4) of the UN Charter.
The concept of a special compensation mechanism stipulates that the Russian Federation must be held accountable for violations of international law and that damage must be compensated from the assets of the Russian Federation and persons involved, including those located abroad. So, according to international law, Ukraine is deprived of the possibility to determine unilaterally, without the consent of its partner states, the conditions under which such funds will be confiscated and what damage will be compensated using these funds. Thus, the concept of an international compensation mechanism can only become a reality with the cooperation and consent of other partner countries.
This implies the need to involve and take into account the position of such countries in developing a mechanism for the compensation of the damage caused by Russia’s armed aggression against Ukraine.
The current version of the Charter of the International Register of Damage stipulates that only loss, damage, or injury occurring on or after 24 February 2022 will be eligible for compensation under the international compensation mechanism.
The work to find ways to compensate all affected continues at both international and national levels.
THE REGISTER OF DAMAGE SHOULD BE OPERATIONAL NOW SO THAT VALUABLE INFORMATION IS NOT LOST
In September, Didier Reynders, European Commissioner for Justice, said that the EU would co-finance establishing an office of Ukraine’s International Register of Damage in The Hague. Who else is ready to participate?
The European Union is indeed ready to co-finance the costs of establishing the International Register of Damage. This support from our partners is highly appreciated.
Annual membership fees and voluntary contributions from associate members fund the Register. At present, 43 countries and the European Union have joined the Register of Damage.
In addition, Ukraine, which is exempt from the payment of the compulsory membership fee for 2024, has provided the Register with the development of the technical requirements for the creation of the digital platform of the Register of Damage as a voluntary contribution in kind.
When should the Hague Register of Damage become formally operational? Will an office also be set up in Ukraine?
The Register is in The Hague, Kingdom of the Netherlands. The Host State Agreement concluded by the Council of Europe governs the status and functioning of the Register in the Kingdom of the Netherlands.
Under the Charter, the Register will also have a Support Office in Ukraine to liaise with the Government of Ukraine and facilitate the dissemination of information and contact with potential claimants and the public in Ukraine, particularly regarding the existence and purpose of the Register and the procedure for submitting claims.
Organisational measures are underway to ensure the actual launch of the Register, the application process, which is expected to start in spring 2024, and the opening of the Kyiv office.
The date from which the Register will be open for submitting claims, evidence, and related information will be officially set by the Council of the Register of Damage.
The Kyiv Auxiliary Office will provide legal, technical, and other assistance to all persons wishing to submit compensation claims to the International Register of Damage, communications, and other functions the Register assigns.
Ukraine and Ukrainians have already suffered a lot from Russia. But there will be more damage and more victims because the war is still going on. In your opinion, what are the possible amounts of the damage and the compensation? Are the international institutions ready to deal with this?
Due to the ongoing hostilities, which are causing new damage, and the lack of access to the temporarily occupied areas and areas where active hostilities are taking place, we are still unable to determine the total amount of damage and compensation. For objective reasons, we still do not have a single figure, although we do have calculations for specific categories of damage in different areas or types of damage.
According to the Kyiv School of Economics, the damage to Ukraine’s civilian infrastructure alone reached USD 151.2 billion by September 2023 and is constantly growing.
According to experts from the KSE Institute’s Russia Will Pay project, the education sector has also suffered significant losses. As of the beginning of September 2023, the war caused USD 10.1 billion in losses in this area. The total number of damaged or destroyed educational institutions exceeded 3,500, including over 1,700 secondary schools, over a thousand pre-schools, and 586 higher education institutions.
This is likely to be increased by orders of magnitude according to a proper assessment based on reconstruction costs and other business losses and damages. In March 2023, the World Bank estimated the cost of rebuilding and restoring Ukraine’s infrastructure to be USD 411 billion.
The destruction of the Kakhovka HPP due to Russian military aggression is the biggest industrial accident in Europe since the Chornobyl tragedy. According to preliminary estimates, the damage caused by this crime totals USD 14 billion. This includes USD 11 billion in damage and USD 2.79 billion in direct losses.
These are just some of the types of preliminary estimates. As the war progresses, these damages will continue to rise.
Why should the assessment of damage caused by the Russian Federation in Ukraine begin now, before the war ends?
Given the extremely high level of destruction and the fact that damages are still increasing, as well as the time it takes for international proceedings to be completed, it is undeniable that it is now advisable to make every effort to record damage and losses and to gather information that will serve as a basis of evidence for legal protection. Otherwise, we run the risk of losing valuable and important information that could confirm the existence of the damage and its extent.
Iryna Drabok, The Hague