Claiming Back What is Yours
While the great war started by Russia in Europe is ongoing, it is difficult to predict when and how it will end, but a few things are obvious - the aggressor country attacked another sovereign state, causing death and destruction. Responsibility for these crimes must be fixed and punishment must be inevitable.
Despite the fact that Russia still calls its aggressive war a special operation, does not plead guilty, deterring the world with threats of nuclear weapons, and illegally holds a seat in the UN Security Council.
And even if there are no legal instruments to bring Russia to justice now, they can be established upon the already existing international law practice.
The International Criminal Court (ICC) in The Hague is "the first permanent international criminal court established by international treaty to end impunity for those responsible for the most serious international crimes." At present, the ICC is examining the crimes described in the Rome Statute: war crimes, crimes against humanity, aggression, genocide, identifying the perpetrators, sentencing criminals and compensating victims. It was only on July 1, 2002, that the ICC began operating on a permanent basis.
The ICC's practice in the area of reparations has only 4 completed cases. But they have shaped the approach to the mechanism of providing reparations and compensation to victims of international crimes. But the mechanism of reparations has a longer history of application.
Germany during WWI / WWII
Following the end of the First World War, Germany had to pay exorbitant reparations to Western countries. According to the Versailles Peace Treaty of 1919, in addition to restoring a number of territories, the Germans had to pay the victors 226 billion Reichsmarks (approximately 100 thousand tons of gold). It took almost a century. The country paid the last tranche of compensation under the Treaty of Versailles, 70 million euros, only in 2010, on the 20th anniversary of German unification.
In 1945, at the Yalta Conference, and later at the Potsdam Conference, the victors in World War II, among other things, once again ordered reparations for Berlin. This time, the amount exceded $20 billion. However, unlike the reparations of the First World War, when it was a matter of paying an agreed amount, after the Second World War, the victorious countries distributed certain sectors with assets among themselves.
For example, the USSR received the right to "seize material assets" from the eastern zone of Germany and German property in Eastern Europe: Bulgaria, Finland, Hungary, Romania, and Eastern Austria. Whatever was valuable was confiscated: from factory equipment to pianos, coats, and luxury goods confiscated from ordinary citizens. According to one expert estimate of the already unified Germany, assets worth $15.8 billion were taken out of the Soviet occupation zone and the GDR, which is the equivalent of about 14,041 tons of gold. Another form of "payment" was the labor of German prisoners of war for the Soviet economy.
Compensation for the United States, Great Britain, and other countries was collected from the western zones of occupied Germany. In 1948, the "Western" camp stopped collecting reparations, introducing the Marshall Plan for the war-torn economy instead. The USSR stopped receiving reparations from the German Democratic Republic (GDR) on January 01, 1954.
Germany's reparations payments for the world wars are considered a classic example: the losing side of the war was clearly identified and admitted its guilt, signed a surrender, and publicly agreed to pay reparations.
Iraq against Kuwait
On August 2, 1990, Saddam Hussein's army stormed the capital of Kuwait, seeking, in particular, to gain control over a significant part of the world's oil reserves and access to the 500 km-long Gulf coast. The Kuwaiti army and volunteers were unable to restrain the invaders. The country found itself under occupation.
Terror was one of the basic methods of the Iraqi army under Hussein. Therefore, the development of events was predictable: mass detentions, intimidation, executions, and torture.
The United States intervened a few months later. In response to Iraq's aggression, Operation Desert Storm was launched to end the occupation of Kuwait. Military operations began on January 17, 1991 and lasted 41 days. On the morning of February 28, 1991, they ceased on the initiative of the United States, and a truce was signed on March 6.
Sanctions against Iraq over the occupation of Kuwait were imposed by UN Security Council Resolution 661. They included an arms embargo, restrictions on gas and oil production, and more.
In 1991, the Security Council established the UN Compensation Commission. This subsidiary body of the UN Security Council was to deal with claims and ensure payment of compensation to Kuwait for losses from the Iraqi aggression and occupation of 1990-1991. The Commission included representatives of not only permanent and non-permanent UN Security Council member states, but also the commissioners of Kuwait and Iraq.
The main groups of claims were identified: (list)
from individuals, who were forced to leave Kuwait due to the military invasion of Iraq;
from individuals or their families, who suffered bodily injury or death as a result of the aggression; from individuals, who suffered commercial losses in the form of damage to private property in the amount of not more than 100 thousand dollars;
from persons who suffered commercial losses in the form of damage to private property in excess of USD 100 thousand;
by corporations and other business entities (including the oil sector) to cover their losses;
governmental claims and claims of international organizations to cover the cost of resettlement and assistance to citizens, as well as damage to state property and the environment.
Initially, it was determined that the Hussein regime should pay 30% of its oil and oil products exports to the Fund. Over time, this share was reduced to 25%, and then to 5%.
The mechanism also stipulated that payments should first go to individuals, then to enterprises and government agencies. On average, reparations were paid quarterly in the amount of $1 billion.
Since then, Iraq has received more than a million claims and paid about $57 billion to governments, companies, and individuals - citizens of Kuwait and about a hundred other countries.
The funds for compensation were raised from the Iraqi oil sales under the Oil for Food program.
Congo against Uganda
The Congo had to wait 23 years for reparations to be paid. The International Court of Justice handed down a verdict on Uganda's reparations for its armed aggression and occupation of the Democratic Republic of the Congo only in February 2022.
In 1998, a war broke out on the territory of Zaire (now Congo), involving 9 countries.
The catalyst was an armed conflict between Rwandan Hutu and Tutsi refugees who found themselves in Zaire as a result of the Rwandan conflict.
Uganda intervened in the war under the banner of a hybrid proxy movement for the liberation of Congo and actually occupied the eastern part of Congo for several years.
In 1999, the Republic of Congo filed an application with the International Court of Justice to initiate a case against Uganda for an act of armed aggression.
More than two decades later, the court awarded the occupiers $325 million in reparations, although Congo demanded more than $11 billion.
Hearings in the case took place in April 2005. The court established several basic facts. Uganda violated the principle of non-use of force in international relations and intervened in the territory of the Congo, the Ugandan armed forces killed and tortured civilians, destroyed residential buildings, failed to ensure respect for human rights in the occupied territory, and the Ugandan armed forces plundered the Congo's natural resources.
The court determined that Uganda should pay reparations in favor of the Congo and suggested that the parties agree on the amount of compensation. Over the next decades, the parties tried unsuccessfully to find a compromise and eventually returned to the courtroom. The verdict was announced in early February 2022.
However, the court did not accept Congo's evidence of civilian killings, property destruction, and other crimes. "On the basis of the evidence considered, the court concluded that neither the materials submitted by the DRC nor the reports provided by the court-appointed experts or prepared by UN bodies make it possible to determine the exact or even approximate number of civilian deaths for which Uganda must pay reparations."
Similarly, the court was "unable" to establish the exact number of injured persons, although the evidence showed that there were "many". The same logic was used to assess the facts of rape and other forms of sexual violence; deportation of the population, damage to property and infrastructure, as well as illegal mining and theft of minerals and environmental damage.
"DRC claimed that Uganda was responsible for 180,000 civilians killed. A court-appointed expert reported that less than 15,000 civilian deaths were reliably recorded during the entire period of the Second Congolese War."
Despite the fact that the actual number of victims and the extent of the damage were obviously higher, the court based its reparations award on the concept of the so-called "global sum".
Nowadays, at a time when Russia has unleashed the largest war on the European continent since World War II, the issue of finding effective legal mechanisms for establishing and paying reparations is gaining new relevance.
Over the past century, the legal basis for reparations has been an act of surrender or a UN Security Council resolution. Both options are not realistic, as Russia does not plan to recognize its responsibility for the war and continues to block UN decisions.