The restoration of houses, hospitals, schools and thousands of other objects of civilian infrastructure destroyed by the Russian armed forces in Ukraine will probably cost dozens and dozens of billions of euros which, according to Estonian experts of the international law, should be paid by Russia as the aggressor and the state responsible for the damage caused to another state and its people.
But legal experts interviewed by Postimees are skeptical about the likelihood that Russia would agree with reparations which are usually paid in money but sometimes in goods or earlier in history by ceding part of territory.
Reparations are determined in a peace treaty, which in turn depends on the outcome of the war. Since the end of the war in Ukraine is not yet in sight, it is also impossible to predict the solution of the reparations issues, says Lauri Mälksoo, University of Tartu Professor of International Law. “There are a large number of problems,” he says. “Not just who will pay for Ukraine’s shattered cities but also political issues like the status of Ukraine.”
Although the international law stipulates that all illegal damage must be compensated – and the UN Charter approved in 1945 considers a war of conquest illegal – it is quite another matter how the compensation should actually take place, says Tiina Pajuste, Tallinn University Professor of International Law and Security Studies.
According to the usual process, the country causing the damage is forced to agree to pay reparations by military or other influence (usually the countries losing a war agree to pay reparations). But Pajuste admits that if a country does not agree to reparations, it would be very difficult and even impossible to exact them, even if it is stipulated in the peace treaty or a resolution of the United Nations Security Council.
Escape from stigmatization
Since the war continues and Russia’ actions, despite the slowing down of the offensive of its forces, show no inclination of its leaders to end the planned special operation, which expanded into a full-scale war; instead the Kremlin is showing determination to continue until victory – whichever way the victory could be defined – there is no ground for hopes that Russia could accept the obligation to compensate the damage caused to Ukraine, Pajuste says.
“Unless Russia is clearly defeated in the conflict in Ukraine,” she says, “I can see no likelihood that it will agree to pay reparations.”
Besides, Russia has taken significant losses in the war it started against Ukraine. It is not just about the hundreds of destroyed tanks, armored combat vehicles, dozens of aircraft and helicopters, but primarily the sanctions imposed on Russia. Moreover, allegedly every day of the war costs Russia 18 billion euros.
“Even if the negative impact of hostilities does not extend to Russia’s territory, the cost of waging this war is immense,” says René Värk, University of Tartu Associate Professor of International Law. “All the funds raised by Russia are somewhere frozen and an economic depression is coming on. It does not look like Russia has any extra money for reconstruction.”
Pajuste speculates that one of the options for Russia agreeing to some kind of reparations could happen “in a situation where Russia understands that it has no longer any chance to win and would also benefit from ending the conflict through negotiations.”
Since it is presently possible only to speculate about reparations, Pajuste does not rule out that Russia may pay some damages to Ukraine if it feels it won the war. “In a situation which is not perceived as a defeat, Russia could admit that it had been necessary to cause some damage during its mission and agree to compensate them,” Pajuste speculated. In such case Russia could present the payment of reparations as unavoidable damage accompanying the special operation and escape from total stigmatization, she added. (Värk commented that of a country has unlawfully started a war, it cannot argue that part of the damage had been unavoidable.)
But if Russia should overthrow the legal government of Ukraine in the war and set up a puppet government in Kyiv, it can be expected that they would not demand any compensation from Russia, Värk added.
Pajuste said that another option after forming the puppet government could be that, in order to appease the international public, Russia would allocate symbolic sums to its henchmen or simply move money from one pocket to another. “If Russia controls Ukraine, it would not mean reparations to Ukraine,” she said.
The only tools for forcing Russia to even address the issue of reparations after the war are diplomatic talks and the pressure of sanctions. The United Nations Security Council would be of no use for that purpose because Russia has a veto right there. The most efficient means, according to Pajuste, would be sending a message to Russia via diplomatic declarations about the toughening of sanctions that evading the payment of reparations would be even more costly and that trading with the West would depend on the payment of reparations to Ukraine.
Generally the sanctions have two goals, says Värk. Firstly, to punish, and secondly, to exert pressure on a state so that it would change its unlawful actions. “We might hope,” he says, “that after Russia has been squeezed enough, it would agree to negotiate and discuss, among other matters, the payment of damages.”
But Pajuste agrees that if the sanctions have not yet achieved their main goal of stopping Russia’s aggression against Ukraine, it is difficult to see how the threat of sanctions could raise the issue of reparations. “A political message is much more important to Putin than economic consequences as we can see from the fact that it has not reacted much to the sanctions,” he says. “The payment of reparations has a symbolic value – it is an admission of the state’s violations.”
A dangerous chaos
Legal experts consider it likely that when Ukraine or the international community would raise the issue of reparations, Russia would respond in kind and describe itself as a victim, which had to defend itself against the Western and NATO threat. (Värk: “It would be an interesting argument, but nonsense from the legal and logical viewpoint.”) At the same time there would be no doubt that during the war either side would commit, accidentally or deliberately, some unlawful acts, which allows both sides present opposing claims.
But at least so far there is no evidence that Ukraine had attacked Russia’s civilians or civilian sites.
MP Valdo Randpere (Reform Party), who has legal education, recommended early last week the forming of a Ukraine Restoration Fund which could be financed from the Russian Central Bank’s assets in foreign banks.
Experts of international law interviewed by Postimees do not consider it likely or reasonable because that would undermine the privileges and immunity of states. Mälksoo says that in his opinion no one can directly take away Russia’s assets and declare that it will be used as compensation of war damage to Ukraine. “The Western world attempts to respect property rights,” he says.
Pajuste warns that if one state would be permitted to confiscate the property of another state, Russia could do the same. “If all states start reacting to some violations by seizing assets, it would result in a chaos in international relations,” she says. “It is therefore very difficult to reach the conclusion that [seizure of assets] would be a good way to act, although we would like to send a symbolic message and help Ukraine. But it would not be worth it if it would undermine the international law”.
The only option for using the Russian Central Bank assets in foreign countries’ banks, according to Värk, opens when the third country where the assets are located, agrees to participate in the solving of the issue. He cites as an example that if the International court would find Russia guilty and order it to pay a certain amount, it could allow for justifying the placing of the Russian Central Bank assets at Ukraine’s disposal. But it would nevertheless be a complicated procedure nevertheless.
“If Ukraine would simply say that, hey Americans – or wherever the Russian assets are – just transfer us ten billion – I am not certain that it would work,” Värk says.
A necessary castling
No one except Russia’s President Putin has a clear idea of the final goal of the war against Ukraine, but considering the massive devastation the Russian forces have committed in slightly more than two weeks, the question of responsibility for the restoration of the Ukrainian state is inevitable. If Russia wants to retain any influence in Ukraine, it has created itself a huge problem by killing civilians and bombing civilian structures.
“How can you achieve the loyalty of the population is you bomb central Kharkiv?” he asks. “Anyone with half a brain can understand that what Russia is doing right now only harms it in the long run.”
According to Värk, it cannot be ruled out that Russia would not care what happens to Kharkiv and other cities if it can only occupy Ukraine. “Russia could be just as callous as that if one wants to speculate,” he says.
Mälksoo says that it would be difficult to imagine that Putin’s government would even apologize for the damage and sufferings of Ukraine. (He adds that the aggressor’s admission of its unlawful action could be as important to the victim as financial compensation). In his opinion, Russia’s slightest willingness to reach any agreement, admit the violation of the international law and possibly pay some compensation would absolutely presume Putin’s replacement by someone else as Russia’s leader.
“Putin would never say that you were fine warriors who kicked us out of Ukraine or that Kharkiv is shattered and we shall give you money to rebuild the city, “Mälksoo says. “It would not be possible for Putin to say, oops, we did something wrong:”
If the outcome of the war would be favorable for Ukraine instead of its occupation by Russia, the legal experts still assess that the restoration of Ukraine would be need the money of the European Union and the Western powers. But that would not mean that Russia as the perpetrator would go scot-free, Värk remarks. “Rebuilding Ukraine does not mean that we would not collect the money from Russia at a later date,” he says. “The claim against Russia would not go anywhere.”
But if Russia should swallow a large share of destroyed Ukraine, Värk can see no option that Europe would help to restore it. After all, Europe has not contributed to the rebuilding of the occupied Crimea.
Mälksoo resumes that as long as Putin stays in power Russia would not admit its guilt for the war or pay Ukraine compensation because aggressors simply do not act like that. But he hopes that the economic pressure created by the West as well as the bogging down of the invasion would create a situation in Russia forcing a sort of castling at the top in order to save the country. Mälksoo forecasts that otherwise Putin would drag the Russian people with him into a chasm where they would remain for the following few decades.
Mälksoo says that he cannot judge the likelihood of thus scenario, but he is convinced that a change in the leadership would be most important issue as far as the reparations and payment of damages go. “Part of the price of Russia being able to restore its relations with the rest of the world, especially the West, would be the admission of guilt and some political agreement regarding compensation,” he argues. “Without that Russia will exist in the future as an isolated country, just like the Soviet Union lived for decades, with all the consequences for Russia’s citizens.”