The Register of Damage Caused by the Aggression of the Russian Federation against Ukraine was established by the Council of Europe in May 2023, and applications for claims are now open. Pavlo Bogachenk explains
The war in Ukraine is still ongoing and continues to cause immense human suffering and material damage. The recent estimates of the war damage suffered by Ukraine and reconstruction costs amount to €440 billion (approximately 2.8 times Ukraine’s GDP).
When Russia started its full-scale invasion of Ukraine, now more than two years ago, one question crossed many (legal) minds – what redress mechanisms and remedies would be available to make the Russian Federation accountable for gross violations of international law and human rights?
Several mechanisms were triggered relatively quickly. On 26 February 2022, Ukraine filed a complaint with the International Court of Justice under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which recently passed the jurisdictional stage.
On 2 March 2022, the International Criminal Court opened its investigation, with 43 states referring the situation to the court in March/April 2022, and several arrest warrants issued later on. Numerous complaints against Russia were lodged also with the European Court of Human Rights before the cut-off date of 16 September 2022 (as a result of Russia’s expulsion from the Council of Europe).
Moreover, the EU, USA, UK and a number of other states introduced sanctions against Russia and some of its affiliates, and several private investment claims were initiated under the 1998 Ukraine/ Russia bilateral investment treaty.
Still, given the scale of the problem, two issues quickly became clear: firstly, existing mechanisms would not be sufficient to ensure full accountability and timely compensation for victims; and, regardless of the development of new mechanisms, it would be necessary, secondly, to preserve all available evidence and to document losses.
Various national and international working groups continue to work on solutions to both issues. For example, discussions on the first issue include, among others, two concepts: an international tribunal – Special Tribunal on the Crime of Aggression (distinct from the ICC jurisdiction); and a Ukrainian court with international support (hybrid model).
As a solution to the second issue, the Register of Damage for Ukraine was established under the auspices of the Council of Europe. The Register of Damage is intended to record the claims of those who have suffered loss or damage as a result of the war, and to pave the way for an international compensation scheme that would provide direct redress to victims.
What is the register?
The ‘Register of Damage Caused by the Aggression of the Russian Federation against Ukraine’ was established at the Council of Europe Summit in Strasbourg in May 2023 through an enlarged partial agreement. It is open to all member states.
Additionally, states supporting the UN resolution for reparation for aggression against Ukraine can join the register by notifying the Secretary General of the Council of Europe. Currently, 43 states and the EU participate in the register.
The register, a legal entity based in the Hague with a representative office in Ukraine, is set for an initial three-year term.
The register’s purpose is to document claims related to Russia’s illegal actions in Ukraine. It is expected that the register will process applications, assess their eligibility, and register them for further action.
How the register works
On 21 March 2024, the board of the register adopted the rules for the submission and processing of claims and the categories of claims eligible for submission.
According to the claims rules, the register will accept applications for compensation for losses, injuries, or damage caused on or after 24 February 2022 on the territory of Ukraine or within its internationally recognised borders by the illegal actions of Russia, in or against Ukraine.
Claims can be submitted by legal entities and individuals, as well as by the State of Ukraine. The applications can cover various forms of damage, such as property damage, injuries, death of a close family member, crimes of a sexual nature, forcible displacement, damage to forcibly displaced persons, and other forms of damage.
The Register of Damage will also consider the specific needs and vulnerabilities of different categories of victims (the so-called ‘victim-centred approach’).
The register’s claims-submission process was officially launched on 2 April 2024. The claims process starts with a single category – damage or destruction of residential property – with the estimated addition of other categories within a year.
Claims need to be submitted in digital form only, using a Ukrainian Government-services application and platform called ‘Diia’ (Ukrainian for ‘action’) as a gateway for submissions. A separate procedure is being developed for those who cannot access Diia.
For categories that are not currently open, potential applicants are advised to collect and preserve evidence supporting their claims and register their losses on the Register of Damaged and Destroyed Property (old register), which has been in operation since August 2022 and can facilitate the transfer of data and documents to the new register.
While the Register of Damage is not a court or tribunal, it constitutes a crucial step towards the creation of an international justice and compensation mechanism to ensure that all losses and damages resulting from the illegal war in Ukraine are recorded and redressed.
It is expected that, when respective international redress mechanisms are established, the register will become part of a new accountability structure, and that all claims and evidence collected will be respectively transferred.
Pavlo Bogachenko is a senior associate at DLA Piper LLP, Ireland.
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