International register to record damage caused by Russia’s aggression against Ukraine
The Council of Europe has long been monitoring Russia’s alarming situation of human rights, democracy and the rule of law. For many years, the Council tried to exert influence over Russia by keeping the country as a Member and within the jurisdiction of the European Court of Human Rights (ECHR). However, Russia launching a full-scale invasion of Ukraine on 24 February 2022 was the last straw, and the Council decided to expel Russia only three weeks later. Now, the Council of Europe is once again showing its ability and political will to support Ukraine.
On the day of the Summit of Heads of State and Government in Reykjavik on 16 May, an agreement negotiated within the Council of Europe will enter into force, establishing an international Register of Damage caused by the aggression of the Russian Federation against Ukraine. Finland will be one of the founding members of the register to be placed in The Hague.
International register to collect claims and evidence
The register will collect and record claims and evidence of damage caused by Russia’s aggression.
Claims may be filed both by individuals and by legal persons, such as Ukraine’s central government and local governments. Only damage that occurred on or after 24 February 2022 will be recorded in the register. In addition, the damage must have occurred in the internationally recognised territory of Ukraine as a result of Russia’s violations of international law.
The register does not decide on reparation. It is only the repository of eligible claims and evidence for a separate international mechanism for compensation for damage to be established later. The register’s significance will be further accentuated should it take years or decades to establish the mechanism. By founding the register while the conflict is ongoing, the international community can ensure that later reparation decisions will be based on as reliable reports as possible.
The register is a strong message
Establishing the register sends a strong message to Russia and to the whole world. The countries that accede to the register show their unwavering support for peace, common values and the rules-based international order and their desire to ensure that Russia, as the instigator of its illegal invasion of Ukraine, will be made to compensate for the costs of Ukraine’s reconstruction and for other damage caused by its war.
The register is a vital step towards holding Russia liable for the damage it has caused. The key idea behind the register and the mechanism for compensation is liability for damages. Under international law, a State can be held liable for damages caused by acts of aggression. Individuals, on the other hand, have criminal liability for war crimes, crimes against humanity and crimes of aggression. This means that while a State can have no criminal liability, it may be held liable for damages caused by action of its political and military leaders that might fall within the scope of criminal liability.
Response from the International Criminal Court
Two questions largely dominate the international debate on the enforcement of criminal liability: how to ensure criminal liability for the crime of aggression and whether to establish a special tribunal for the purpose. However, it is important to remember that the International Criminal Court (ICC) already has jurisdiction over war crimes and similar crimes. The ICC has responded commendably swiftly by collecting evidence while the conflict is still ongoing and by issuing arrest warrants against President Putin and the Commissioner for Children’s Rights in his Office.
Valuable support for Ukraine’s judicial system
The criminal liability for acts of aggression will be mainly realised through Ukraine’s national judicial system. Ukraine’s courts will decide on a majority of war-related crimes, such as torture, rape and other methods used by ordinary soldiers that violate the rules of war.
It is vital to support Ukraine’s judicial system during and after the war. The efforts to rebuild Ukraine as a democratic state governed by the rule of law must ensure that the judicial system has the necessary resources and competence to try even the most brutal atrocities in accordance with the principles of a fair trial. The Council of Europe supports these efforts through its Action Plan for Ukraine. Finland has been among the largest donors to the action plan.
Anu Välimäki, Adviser, Finland's permanent representation in the Council of Europe