Volume 11 - Issue 54
/ June 2022
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https:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2022.54.06.6
How to Cite:
Gramatskyy, E., Bignyak, O., Kryvosheyina, I., Tokarchuk, L., & Shmyndruk, O. (2022). Peculiarities of the compensation for
damage caused by military actions: New realities of international judicial practice. Amazonia Investiga, 11(54), 57-64.
https://doi.org/10.34069/AI/2022.54.06.6
Peculiarities of the compensation for damage caused by military
actions: New realities of international judicial practice
Особливості відшкодування шкоди внаслідок воєнних дій: нові реалії міжнародної
судової практики
Received: June 1, 2022 Accepted: July 3, 2022
Written by:
Ernest Gramatskyy24
https://orcid.org/0000-0003-1260-2888
Oleksandr Bignyak25
https://orcid.org/0000-0002-4079-9940
Inha Kryvosheyina26
https://orcid.org/0000-0003-3630-2257
Liudmyla Tokarchuk27
https://orcid.org/0000-0001-9691-148X
Olha Shmyndruk28
https://orcid.org/0000-0002-7135-2594
Abstract
The military actions of the Russian Federation
against Ukraine cause considerable losses to the
Ukrainian people: the military and civilian
population die, infrastructure and housing are
destroyed, and cultural heritage is destroyed. The
specified losses must have consequences namely
- compensation for damages at the expense of the
occupying country. So, it is vital to analyze the
realities of international judicial practice
regarding the specifics of compensation for
damage by the aggressor state and to understand
the prospects of obtaining such compensation for
Ukrainians. The purpose of the work is to study
the trends of international judicial practice
regarding the specifics of compensation for
damage resulting from military actions. The
research methodology is hermeneutic, historical,
extrapolation, comparative legal, generalization,
analysis, synthesis, and deduction. Attention was
drawn to the fact that a state that grossly violates
international humanitarian law and human rights
can act as a defendant in national courts. In
addition, the analysis of the legislation on
compensation for damages, including those
caused as a result of Russia's military aggression,
24
Ph. D., Associate Professor of Civil Law Department, Taras Shevchenko National University of Kyiv (Kyiv, Ukraine).
25
Doctor of Legal Science, Professor, Head of the Department of International and European Law of National University «Odesa Law
Academy», Ukraine.
26
Ph. D., Associate Professor of Intellectual Property Department, Taras Shevchenko National University of Kyiv, Ukraine.
27
Doctor of Legal Sciences, Dean of the Faculty of Economics and Law of I. I. Mechnikov Odessa National University, Ukraine.
28
Ph.D. in Law, Senior Lecturer, Department of Civil Law, National University of Ostroh Academy, ukraine.
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determines the development and adoption of
legal acts that will regulate the issue of social
protection and the specifics of compensation for
damages to the population affected by the armed
conflict.
Keywords: compensation for damage, judicial
practice, military actions, military conflict,
international court.
Introduction
One of the methods that contributes to
determining the damage and losses caused to
Ukraine as a result of the armed aggression of the
Russian Federation is the destruction and damage
to the property of the population and enterprises.
International law regulates the issue of bringing
the offending state to justice. Such methods
include sanctions, reparations, retorts,
satisfaction and other methods of compensation.
Therefore, to prevent violators from significantly
ignoring the norms of international law, it is
important to hold them accountable and provide
effective mechanisms for compensation the
detriments caused by military aggression.
Every person is enabled to protect his rights with
all means, including court protection (Law
No. 254k/96-BP, 1996). However, there is a
problem of the real possibility of executing the
decision and compensating for the damage
caused as a result of military actions. According
to the European Convention on Human Rights, as
well as the Ukrainian Constitution, the state
should guarantee property rights (Law
No. 254k/96-BP, 1996, United Nations, 1950).
Today, there are considerable discussions both at
the international level and at the national level
regarding compensation for damage to the
population and enterprises caused as a result of
the military conflict. However, there is currently
no unequivocal position on this issue. In
particular, some experts believe that there is no
practical need to bring the respondent state to
justice in national courts, since there is no
possibility of enforcing such a decision. On the
other hand, other experts are convinced that it is
worth going to court to protect the violated right,
because, as practice shows, after the end of the
Second World War, a whole series of models and
mechanisms were created for prosecution and
punishment of the Nazi: international tribunals,
mixed tribunals, national courts of special
jurisdiction, ordinary national courts.
In Ukraine, various options for compensation for
damages inflicted by today's Russians are being
considered. For example, the Office of the
President announced the creation of a special
Commission based on international cooperation,
which will review applications for compensation
and pay compensation from the created fund
(Judicial and Legal Gazette, 2022).
But, in addition to the new mechanisms being
created in Ukraine to compensate for damage,
there are judicial mechanisms, including
international courts (the UN International Court
of Justice, the European Court of Human Rights).
At the same time, there are mechanisms for
reparation of damage by filing lawsuits in
national courts, in which the defendant is the
aggressor state.
Given the above, it is essential to study the
international judicial practice, namely the cases
that have taken place in the international judicial
practice regarding compensation for damage
caused by military actions, as well as the trends
in such practice. This research will be proper for
national law enforcement.
Theoretical Framework or Literature Review
The issue of compensation for damage caused by
the war was studied by several scholars.
Anisimova (2020) in her work examines the
specifics of compensation for damages as a result
of Russian aggression in Eastern Ukraine.
Among other things, the author drew attention to
the reasons for the ineffectiveness of the
application of the civil-law mechanism for
compensation of damages and emphasized the
need to adopt a special law that should regulate
the issue of social protection of persons who lost
housing and real estate as a result of the war.
Atamanova and Kobets (2022) surveyed the
prospects for the execution of decisions on the
recovery of damages from the Russian
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Federation. According to lawyers, there is no
single, universal way for everyone to receive
compensation for the damage suffered by the
business as a result of the Russian military action
on the territory of Ukraine, and therefore it is
worth considering various options and even their
combination so that the amount of compensation
is fair or at least close to it.
Features of the application of transitional justice
in Ukraine were regarded by Bushchenko and
Hnatovskyi (2017). Among other things, the
authors concluded that the introduction of
transitional justice in Ukraine should solve a two-
fold task: to contribute to the settlement of the
acute social conflict in the state and to apply
effective tools to compensate all victims of
crimes, as well as to contribute to the
establishment of a new, independent, self-
sufficient system of criminal justice bodies, able
not only to effectively resolve social conflicts but
also to satisfy citizens' need for justice, ensuring
the application of the principles of the rule of law
in practice.
The resolution of territorial disputes by the UN
International Court of Justice became the subject
of Kononenko's (2018) research. The author
comments that territorial issues have always been
one of the most acute and complex in
international law since the territory is a necessary
attribute of the state, the material basis of the life
of the people who inhabit it, and analyzes in
detail how the practice of the UN International
Court of Justice affects the resolution of
territorial disputes.
In his article, judge Parkhomenko (2022)
surveyed the key aspects of compensation for
damage caused by military actions. In particular,
he concluded that a state that grossly violates
international humanitarian law and human rights
can act as a defendant in national courts. In
addition, international experience shows that the
recognition of the obligation to compensate for
damages can often be found in agreements, but a
universal mechanism for compensation for
damages due to armed aggression is currently
absent.
Plyskan (2022) examined the features of
recovery of compensation and confirmation of
company losses as a result of military operations.
The lawyer emphasized that at the moment it is
worth fixing the damage and collecting evidence,
including from open sources, that the property
damage occurred as a result of the military
aggression of the Russian Federation and that it
should be understood that victory in the war will
only mean the beginning of work on the
restoration of business activity and destroyed
property. Each case of damage can be individual
and now it is important to record the damage,
describe the damage, collect evidence and
prepare for a long struggle.
Skrypnyk and Musienko (2022) assessed the
features of compensation for damages as an
important part of the policy of de-occupation of
Crimea. The authors are convinced that to
prevent substantial disregard of the norms of
international law, it is necessary to bring
violators to justice and ensure effective
compensation mechanisms for illegal actions and
occupation and that Russia as a state should pay
a high price for the damage caused, and
representatives of the Russian political and
military leadership should bear responsibility for
violations of international humanitarian law.
Sydorovych (2022) drew attention to the
peculiarities of the application of both legal
norms and established customs in the researched
area.
Kharytonov (2022) researched judicial practice
in the field of compensation for damage caused
as a result of military actions. The author drew
attention to the new legal positions of the
Supreme Court, which gave Ukrainians the right
to compensation for the damage caused to them
by Russia's military aggression in court.
As can be seen from the above study of the
literature, the issue of compensation for damage
caused by war actions in the current conditions is
popular among scientists and lawyers. However,
judicial practice on this issue has not been
sufficiently researched, which requires deeper
examination and research.
Methodology
The work utilizes such methods of scientific
knowledge as hermeneutic, historical,
extrapolation method, comparative legal method,
generalization, analysis, synthesis, and
deduction.
The hermeneutic method was employed to define
and give definitions to the conceptual apparatus
regarding compensation for damage during
hostilities. In particular, this method made it
possible to reveal the meaning of the concepts
"damage", "military conflict", "law enforcement"
and several others, based on the scientific works
of scientists and practical recommendations of
judges and lawyers.
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Establishing the chronology of the development
of legislation and judicial practice during the
military conflict became possible due to the
benefit of the historical method. This method, as
a process of research and gathering evidence
about events that happened in the past and to
form ideas or theories about history in the future,
covers the following methodological techniques
for analyzing relevant data on a historical topic,
which allows synthesizing information to make a
coherent account of events that occurred in the
studied episode. Therefore, the usefulness of this
method made it possible to investigate the
realities of the past international judicial practice
on issues of compensation for damage caused by
military actions and to understand new realities
and predict possible changes.
Understanding the differences in the national
legislation of different countries and the
influence of international judicial practice on the
implementation of the principle of the rule of law
was obtained thanks to the help of the
comparative legal method. In particular, the
application of this method made it possible to
identify similar positions and levers of
settlement, and therefore this method, among
other things, made it possible to identify
problematic issues of foreign countries that
Ukraine may likely face.
The method of extrapolation was utilized to
predict new opportunities for international
judicial practice in the researched field. It made
possible to identify sustainable development
trends formed in the past and present and made it
possible to transfer them to the future. Including,
the application of the extrapolation method made
it possible to predict the results that can be
reached in the future, if changes are made to the
national legislation and to improve the
international mechanism of judicial protection.
The usage of the method of generalization made
it possible to single out common trends,
international judicial practice, and features of
compensation for such damage. Generalization,
as a logical process of transition from individual
to general or from less general to more general
knowledge, made it possible to understand the
multifaceted types and forms in which the
essentially identical processes of evidence
collection, appeal to court, and execution of court
decisions are manifested and made it possible to
divide them into components, on groups of a
special class.
The analysis of judicial practice, both
international and national, the analysis of
normative legal acts, etc., played a significant
role in this study because a correctly performed
analysis serves as a guarantee of a logical
presentation of the research material.
With the help of the deduction method, the logic
of international judicial practice in compensating
damage caused by military actions became clear,
and a version of the causal chain was developed
that explains the consequences.
The service of the synthesis method made it
possible to separately investigate individual
phenomena of international judicial practice and
consider them as a system, that is, a set of
interconnected elements that generate each other
and are interconnected and interdependent. Thus,
the process of gathering evidence, presenting
evidence to the court, and peculiarities of
decision-making, were separately investigated.
Results and Discussion
General provisions on international
mechanisms for compensation for damage
caused by military actions
Before considering the judicial practice
regarding compensation for damage caused by
hostilities, it is worth paying attention to the
general provisions on international instruments
of bringing the aggressor state to justice.
One such tool is transitional justice, the concept
of which emerged as a reaction to the collapse of
authoritarian regimes and dictatorships in Latin
America, Africa, and Central and Eastern
Europe. The basis of this concept is that radical
changes in society do not mean starting from
scratch, because the past creates a certain imprint
on the future.
Objectives of the concept of transitional justice:
1. Overcoming impunity, i.e. socio-historical
understanding of human rights violations
and punishment of the guilty;
2. Restoring the rule of law and ensuring its
long-term sustainability;
3. Achieving reconciliation in a divided society
(Civilm Plus, 2019).
The purpose of transitional justice is to prevent
the recurrence of crimes in the future, that is,
transitional justice performs a preventive role
and, in its content, consists of the right to
information, the right to restore justice, and the
right to compensation for damages. In turn, the
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right to compensation for damages serves as a
guarantee of non-repetition.
Jurisprudence of international courts
regarding compensation for damage resulting
from military actions
It is possible to receive compensation for damage
caused as a result of military actions in court. The
European Court of Human Rights and the UN
International Court of Justice are the judicial
bodies to which you can apply for a decision on
compensation.
We have to consider in more detail the
international judicial practice regarding the issue
of compensation for damage, which may be
useful for national law enforcement.
Appeal to the ECtHR (1)/ Appeal to the UN
International Court of Justice (2)
Grounds for appeal:
1. European Court of Human Rights, when
considering cases related to the
consequences of the war in the former
Yugoslavia, noted that the fulfillment of the
state's positive obligation to guarantee
property rights should not lead to an
excessive burden on its budget (Council of
Europe, 2018).
2. A request for interim measures takes priority
over all other cases. If the Court is not sitting
at the time the request is made, it is
immediately convened for its urgent
consideration (United Nations, &
International Court of Justice, 1945).
The decision of the Case:
1. Al-Adsani v United Kingdom (2001)
(involved a claim by a dual British/Kuwaiti
citizen against the United Kingdom who
alleged that the British courts had breached
Articles 6 and 13 of the Convention for the
Protection of Human Rights and
Fundamental Freedoms by granting
immunity to Kuwait against whom he had
brought a civil action for torture during his
detention by the authorities of this country).
In its decision, the ECtHR, while
recognizing that the prohibition of torture
has acquired the status of a jus cogens norm
in international law, nevertheless indicated
that it was unable to discern any solid
grounds for the conclusion that a state “no
longer enjoys immunity from civil suits in
the courts of another state where torture is
alleged”. (McElhinney v. Ireland, 2001) –
concerned a claim for damages brought in
Ireland against a British soldier. The
domestic courts rejected the claim based on
the immunity petition filed by the United
Kingdom. The ECtHR ruled by 12 votes to
5 that the decisions of the Irish courts did not
go beyond an unreasonable restriction of an
individual's right of access to a court. Two
of the 5 dissenting judges believed that the
majority did not take into account the
development of international law and
disproportionately limited the right of access
to a court, unduly affecting and violating the
essence of this right. This was pointed out
by judge Loukaides: “The immunities of
international law arose at a time when
individual rights practically did not exist and
when it was needed by states for greater
protection against possible persecution due
to judicial abuse. The doctrine of state
immunity nowadays is subject to more and
more restrictions, there is a tendency to
reduce its application given the development
of human rights, which strengthen the
position of the individual”. Other judges
(Caflish, Cabral Barreto and Vajic) in a joint
separate opinion also pointed to the
observance of the right of access to the
courts. They noted that at present "there is
no international obligation on the part of
States to grant immunity to other States in
matters of torts caused by agents of the
latter". They reasoned that the principle of
state immunity has long ceased to be a
general rule that exempts states from the
jurisdiction of courts.
2. The decision of the International Court of
the United Nations in the case Germany v.
Italy (2012) is quite significant in the issue
of state immunity. Germany requested the
Court to recognize that Italy had violated the
jurisdictional immunity enjoyed by
Germany under international law by
allowing file civil claims against it in Italian
courts for compensation for damages caused
as a result of violations of international
humanitarian law committed by the Third
Reich during World War II. Although the
decision was made in favor of Germany, it
is worth noting the dissenting opinion of
Judge Yusuf. It describes quite well the
relationship between general justice and the
protection of human rights and the problem
of state immunity for serious violations of
human rights. This will be relevant both for
today's conditions and, as it is seen that it is
worth taking into account when protecting
the rights of Ukrainian citizens.
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The obligation to compensate for damages is also
mentioned in the statutes of international
tribunals. For example, in the statute of the
International Tribunal for the former Yugoslavia,
only restitution is mentioned, in the Rules of
Procedure, the question of restitution is raised
more broadly. In addition, although the Statute
does not mention the issue of compensation, a
system of cooperation between the tribunal and
national authorities is established, thanks to
which the establishment of the fact of guilt by the
tribunal will allow victims to apply to the court
for compensation under national law (United
Nations, 1993).
It is also worth paying attention to Israel's
experience in the issue of individual
responsibility of persons guilty of grave crimes
against humanity. In 1962, the Supreme Court of
Israel concluded in the Eichmann case that all the
crimes attributed to the applicant were
international. Therefore, according to the
principle of universal jurisdiction, acting as a
guardian of international law and an agent for its
implementation, the State of Israel had the right
to try the applicant (Attorney General v.
Adolf Eichmann, 1961).
An equally well-known case that concerned the
personal responsibility of a person is the decision
of the House of Lords of Great Britain (Judgment
- In Re Pinochet, 1998) regarding Augusto
Pinochet. It ruled that he did not enjoy immunity
from prosecution concerning the allegations of
torture, holding that acts of torture could not be
considered official acts of a head of state, as such
an interpretation would run counter to the very
definition of the crime, which requires it to be
committed by a person acting in an official
capacity, and would undermine the system of
universal jurisdiction, excluding proceedings
outside the borders of a state against an official
unless that state is willing to waive immunity.
In Ukraine, an important approach to obtaining
compensation was formed by the Supreme Court
in the decision dated 04.14.2022 in case No.
308/9708/19. The Supreme Court noted that the
court of Ukraine, considering a case where the
defendant is the Russian Federation, recognizes
the Russian Federation as responsible for the
damage caused to a person as a result of military
operations. Determining whether judicial
immunity applies to the Russian Federation in the
case under review, the Supreme Court took into
account the following: the subject of the lawsuit
is compensation for moral damage caused to
natural persons, citizens of Ukraine, as a result of
the death of another citizen of Ukraine; the place
of infliction of damage is the territory of the
sovereign state - Ukraine; it is assumed that the
damage was caused by the agents of the Russian
Federation, who violated the principles and goals
enshrined in the UN Charter regarding the
prohibition of military aggression committed
against another state – Ukraine; the commission
of acts of armed aggression by a foreign state is
not an exercise of its sovereign rights, but
indicates a violation of the obligation to respect
the sovereignty and territorial integrity of another
state – Ukraine, enshrined in the UN Charter; the
national legislation of Ukraine is guided by the
fact that, as a general rule, damage caused in
Ukraine to a natural person as a result of the
illegal actions of any other person (entity) can be
compensated by a decision of a court of Ukraine
(according to the principle of general tort).
That is, the Supreme Court proceeds from the
fact that in case of application of the delict
exception, any dispute arising on its territory by
a citizen of Ukraine, even with a foreign country,
in particular the Russian Federation, can be
considered by Ukrainian court. The Supreme
Court established the grounds for the conclusion
that starting from 2014, there is no need to send
requests to the Russian Embassy in Ukraine
regarding the consent of the Russian Federation
to be a defendant in cases of compensation for
damages in connection with the Russian
Federation's armed aggression against Ukraine
and its disregard of sovereignty and territorial
integrity of the Ukrainian state. And from
February 24, 2022, such sending is impossible
also given the termination of diplomatic relations
between Ukraine and the Russian Federation.
So, the new realities of judicial practice indicate
that there are three ways to obtain a decision on
compensation for damage caused by military
actions: an appeal to the ECtHR, an appeal to the
UN International Court of Justice, and an appeal
to a national court.
Problematic issues of implementation of
decisions on compensation for damage caused
by military actions
Issuance of a court decision on compensation for
damage caused by military actions is an essential
stage in obtaining compensation, but more
important is the actual implementation of the
decision, that is, compensation for damage
caused by military actions.
In particular, enforcement of a national decision
on recovery of damages from the Russian
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Federation is possible in two ways: in Ukraine or
a foreign jurisdiction.
National jurisdiction (1)/Foreign jurisdiction (2)
1. Currently, there are no mechanisms in
Ukraine that would make it possible to
execute a decision on debt recovery from the
state at the expense of the property of its
residents.
2. A Ukrainian court decision can be enforced
on the territory of another state where the
property of the Russian Federation is
located. However, for this, it is necessary to
establish the existence of grounds for the
execution of the decision of a foreign court
following the national legislation of the
previously selected country (currently there
is no international multilateral convention
that has entered into force, and therefore the
conditions for the execution of the decision
are determined by the national legislation of
each country and its bilateral and/or regional
international agreements on legal aid.
But it is worth noting that at the stage of
execution of the decision, the courts of foreign
countries will check whether the Ukrainian court
decision does not contradict their public order. A
special role in this aspect is played by
international legal customs regarding the
immunity of a state that has caused damage by
acts of aggression, genocide, and military
actions, from lawsuits by private individuals of
another state for its compensation.
In particular, exclusions from state immunity
according to the European Convention on State
Immunity and the UN Convention on
Jurisdictional Immunities do not apply to cases
of military action (United Nations, 2004).
An example of this is the decision of the
International Court of Justice of the United
Nations in the case of Jurisdictional Immunities
of the State, Germany v. Italy: Greece
Intervening (2012), which recognized the need
for the national courts of Italy to apply judicial
immunity to Germany when considering cases
based on claims by victims of World War II.
At the same time, international legal customs
change with the development of interstate
relations and reflect new demands of the times. It
cannot be claimed that the position of even the
UN International Court of Justice will never
change.
Conclusions
As a result of the research of the new realities of
international judicial practice regarding
compensation for damage caused by military
actions, the following conclusions were made.
1. A state that violates the norms of
international humanitarian law and human
rights can act as a defendant in national
courts, taking into account the modern
development of international law in the
matter of jurisdictional immunity, which
does not contain absolute requirements for
its application. At the same time, its
limitation depends on the specifics of the
situation, and the aggression against Ukraine
just proves in favor of a restrictive approach.
2. There are three ways to obtain a decision on
compensation for damage caused by military
actions: an appeal to the ECtHR, an appeal
to the International Court of Justice of the
United Nations, and an appeal to a national
court. However, each of these mechanisms
has its characteristics, and there is currently
no universal mechanism for compensation
for damage caused by armed aggression. But
it is worth using previous experience to
avoid mistakes and develop our approach
that could contribute to the greatest
protection of the rights of Ukrainian citizens.
3. Decisions of Ukrainian courts that do not
meet the generally recognized principles of
law in terms of limiting the jurisdictional
immunity of another state will violate the
principles of consideration of such cases,
and, therefore, will result in the refusal to
recognize such decisions.
4. To implement the decisions of both national
and international courts in Ukraine, there
should be a special act on the liability of
Russia for the damage caused and the
procedure for consideration of cases of the
corresponding category, based on generally
recognized principles of law.
As for the further scientific study, it is significant
to research the specifics of the implementation of
decisions of international courts by the aggressor
state for individuals and legal entities.
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