Andriy Senchenko *: Experience of Using the Jurisprudence of Ukraine in Determining the International Legal Responsibility of Russia for Crimes against Ukraine


Dear colleagues!

Even official statistics confirm that more than ten thousand Ukrainians have perished during more than five years of the war as a result of Russian armed aggression, almost thirty thousand have been wounded and mutilated, and millions have been forced to leave their homes.

The main issue that worries everyone is how to restore peace, to return all our territories and to live further, with a neighbouring nuclear power that does not recognize the rules on which the world is kept?

I am sure that there is no alternative to strengthening the Ukrainian army, but at the same time, the last thing the country has to pay for the liberation of its land is the life of her soldiers.

We are obliged to make exhaustive efforts on the economic, diplomatic and legal fronts against the aggressor state in order for us to have the moral right to demand the same from our partners abroad.

There are lots of tasks on the legal front, while the arsenal of traditional opportunities for efficient struggle with the aggressor is not sufficient.

When it comes to compensation for the damage suffered by Ukrainians, the ECHR is perhaps the only one of these international instruments, but even it can hardly be efficient when it comes to millions of victims.

After the World War II, the judicial practice and, in some cases, the legislation of developed democracies, have had a tendency to reject the doctrine of absolute immunity of the state in favour of the doctrine of functional immunity, which envisages the impossibility for an aggressor state to hide behind judicial immunity from jurisdiction in a court of the state, which has suffered, when the result of the aggressor's actions is death of a person, causing damage to health or personal property.

As it is known, attempts to make these principles European-wide, and subsequently also world-wide rules were not a success.

The Basel Convention of 1972 On the Immunity of States and the UN 2004 Convention On Jurisdictional Immunities of States and their Property remained the right ones, but not working.

At the same time, the principles laid down in these documents have been directly reflected in the legislation of most common law countries.

You can take as an example:

• British National Immunity Act of 1978;

• Canadian State Immunity Act of 1985;

• US Law On the Immunity of Foreign States of 1976.

Similar approaches are enshrined in the jurisprudence of many countries of continental law.

Under the current conditions of increasing the number and severity of international armed conflicts, there is a need to create a new efficient global system of safety measures from aggressive actions of inadequate regimes.

Obviously, such a mechanism cannot be based solely on decisions of international courts, since no international court is able to consider the circumstances of the deaths of thousands of people and the damage to millions, as in the case of Russian aggression against Ukraine. This task is too much for all, but for the national judicial system of the affected country.

In this case, an efficient mechanism may be the concerted actions of civilized countries to enforce the decisions of the national courts of the state, which suffered from aggression, made on the basis of consideration of individual claims of affected citizens.

Today, there are 2 million people on the free territory of Ukraine, directly affected by the Russian armed aggression against Ukraine and the occupation of part of the territory of our country.

The same number is at the temporarily occupied territories of the Crimea and Donbass.

These are the families of perished servicemen and civilians, wounded and mutilated servicemen and civilians, servicemen who were in captivity, civilians who were illegally imprisoned and tortured at the occupied territories, persons who have lost their personal property and internally displaced persons.

The total amount of damage caused by the Russian aggression and the occupation for only 2 million Ukrainians at the free territory of the country, calculated on the basis of the European Court of Human Rights, has already exceeded 100 billion euros.

In the face of a clear shortage of systemic actions by the authorities on the legal front, all efforts to protect the legitimate interests of suffered Ukrainian citizens have been assumed by The Power of Law, our non-governmental non-profit organization.

The basis of the developed legal strategy is the above concept of functional immunity of the state, recognized by countries of general and continental law.

We have established a non-governmental system of free legal aid for victims of aggression and occupation, with legal reception offices in all regions of the country. Today we are working with more than fifteen thousand victims.

Our efforts pursue three goals:

1. To help victims get compensation for damage;

2. To punish financially the aggressor state;

3. To record by court decisions evidence of armed aggression, occupation, war crimes, and human rights violations at the occupied territories.

Enormous positive judicial practice has been formed in a short time without the participation of the state. 

More than 150 judges in various courts of 24 regions of our country issued over 400 court decisions establishing legal facts of causing damage to our citizens as a result of armed aggression of the Russian Federation against Ukraine and the occupation of part of our country. Each of these decisions has come into force. 

The judicial practice, formed by the three-year efforts of The Force of Law legal team, is supported by several dozens of decisions of courts of appeal, as well as several decisions made by the new Supreme Court of this country. 

Also, individual decisions were taken by the courts to claim the amounts of damage inflicted on the citizens of Ukraine by the aggressor state. 

And in all cases, the state involved as a participant in the process is the Russian Federation. 

As a measure of ensuring the claims of affected citizens, Russian assets with the value of about US$ 3.5 billion have been arrested by court decisions. 

Obviously, diplomatic and consular assets, as well as property of Russian citizens, are not involved here. 

The possibility of arresting property of Russian companies is considered only with regard to the share of the Russian state, if any.

 Such approaches fundamentally differ from the looting held by Russian occupiers in the Crimea and Donbass. 

Under conditions of refusal to voluntarily execute court decisions on claims of citizens who suffered from Russian armed aggression, arresting Russian governmental property at the territory of Ukraine should become an efficient mechanism for enforcing execution or a source of such decisions. 

However, provided that the total value of the Russian governmental property at our territory is much lower than the amount of damage inflicted by armed aggression on our citizens, it is very important, in case of the appeal of the aggrieved Ukrainians to the courts of other countries with statements on the arrest of Russian property, that foreign Themis would not follow the path of “expressing deep concern”.

According to the official statistics of the United Nations, the number of refugees in the world approaches 70 million and increases in geometric progression. It will continue like this until the civilized world does not begin to see behind these figures the shattered destiny of each person, his or her supplication and hope.

 Tectonic changes have begun all over the world, the driving force of which is the growing awareness of each person of their rights. 

The era of double moral and statics of large numbers, on which for many years all world politics have been built, is coming to an end. 

Nowadays, civilization is on the verge of whether a new model of peaceful coexistence and development is worked out, or new world wars would begin. 

In fact, we are talking about historical choice between the force of law and the law of force.

 Choosing the right path in such a critical situation can only be based on an adequate assessment of what is happening, consolidated by judicial decisions. 

Fair judgments of courts on the claims of each of the hundreds of thousands of Ukrainian families who suffered from Russian aggression and occupation, serve not only as the basis for the revival of justice in our country, but also an example that would push the civilized world to understand what is going on and develop new mechanisms for maintaining peace. 

The inevitability of reckoning for aggression, when even after the change of the regime, generations of citizens of the aggressor country will know, while paying taxes, that a significant part of these funds will not return to them through social programmes, but will be used to compensate the affected country and its citizens, may become one of the most efficient global prevention mechanisms against aggression.


* Information about the author:  

Andriy Senchenko – Head, «The Power of Law», Ukrainian Public Human Rights Movement, MP of Ukraine (2006-2014). 

The article is prepared on the basis of his address at the International Conference Violation of International Law by Russia: Consequences for the World.

31.07.2018 07:00:00