By Joanna Plucinska, Stephanie van den Berg and Stefaniia Bern
BUCHA, Ukraine (Reuters) - Vitalii Zhyvotovskyi, a 51-year old from the Kyiv suburb of Bucha, is trying to rebuild his house after it was heavily damaged during Russia’s occupation of the area earlier this year. The roof was destroyed, the inside gutted by fire and many of the windows blown out.
Zhyvotovskyi says the repairs are more than he can afford, even on his engineer’s salary, so he’s seeking help in the form of war reparations. With the help of a lawyer, he has sent what they say is evidence of war crimes - which Zhyvotovskyi says he was either a victim of or witnessed https://www.reuters.com/world/europe/eu-exploring-using-oligarchs-frozen-assets-rebuild-ukraine-von-der-leyen-2022-05-19/ - to both Ukrainian authorities and the International Criminal Court (ICC) in The Hague, with the hopes of prosecution and compensation.
He is one of a growing number of Ukrainians exploring the possibility of reparations for damage or violence that has occurred during the war as they attempt to rebuild their lives, according to the ICC.
The conflict, which six months in is locked in a stalemate, has caused thousands of deaths, made millions of people refugees and destroyed whole cities. Kyiv has said more than 140,000 residential buildings have been damaged or destroyed and economists have estimated the cost of damage to housing and infrastructure is more than $100 billion.
But for many Ukrainians like Zhyvotovskyi, currently the chances of obtaining compensation from Russia or international tribunals or domestic programs are small, three reparations specialists told Reuters. And, even if the victims do receive reparations, they might only get a modest sum many years from now, they added.
International criminal tribunals can be a route for reparations but the ICC deals with individual perpetrators who can be held liable for damages, rather than states. And, the ICC determines reparations only at the end of what are typically lengthy court cases and they can have a more symbolic value that is unlikely to cover actual costs, some of the specialists said.
Reparations can also be organized at the national level and Ukraine has pledged to set up a reparations structure with international partners but it’s unclear who would be eligible or how it would be funded. Kyiv has said it hopes Russian assets in other countries could be confiscated and used as compensation, an idea Moscow has rejected as illegal.
The Kremlin didn’t respond to a request for comment. Spokesman Dmitry Peskov has said any attempt to use frozen Russian state assets to rebuild Ukraine would constitute “outright theft.” Moscow has rejected allegations by Ukraine and Western nations of war crimes and has denied targeting civilians in what the Kremlin calls a "special military operation" to demilitarise its neighbour.
Zhyvotovskyi’s lawyer, Yuriy Bilous, said he is hopeful his client will get some financial help to rebuild his house and that a successful war crimes prosecution would provide some psychological relief in terms of seeing justice done.
Bilous, whose pre-war practice included corporate law, said he is representing more than 40 other Ukrainians who allege they have been victims of war crimes, many of whom are also hoping for reparations. That includes Zhyvotovskyi’s neighbour, Liudmyla Kizilova, who says her husband was shot in the head by a Russian soldier and her home was burnt down. Reuters was unable to independently confirm Kizilova’s account.
While initially optimistic about his chances of reparations, Zhyvotovskyi says he is now unsure. “I don’t know what will happen in the future, or whether I can count on any help from abroad to restore this home of mine,” Zhyvotovskyi told Reuters during a visit in June, while clutching the metal banister of what was once his staircase.
Ukrainian President Volodymyr Zelenskiy has demanded that Russia cover the costs of damage caused by its invasion. His office didn't respond to requests for comment. International law establishes the principle that a state responsible for an international wrongful act must make reparations for the harm caused by those acts, but there is no set mechanism or court to enforce that idea.
Ukraine’s justice ministry didn't initially respond to request for comment but in a statement sent to Reuters after this article was published said authorities are working to record the damage inflicted by Russia’s “large-scale military aggression” against Ukraine “with the aim of recovering from the aggressor country.”
It said Ukraine is working on the development and implementation of an international compensation mechanism that would be based on international agreement and supported by international organizations. The plan includes the creation of a compensation commission designed to consider claims for compensation from individuals, legal entities and the state as well as a compensation fund that Kyiv hopes the funding of which would include voluntary contributions and the sale of confiscated Russian assets, the justice ministry said.
EARLY STAGES
When asked about Zhyvotovskyi’s prospects, Pieter de Baan, who headed the ICC body responsible for reparations until this month and now serves as an advisor, said the court’s involvement in Ukraine was at the “very, very early stages.” He added a prosecution must take place “before you can even think about reparations.”
The ICC said it was receiving applications for participation in court proceedings, which is a first step to getting reparations, “on an ongoing basis” but was unable to provide numbers for how many Ukrainians had contacted the court.
Patrick Pearsall, a U.S.-based lawyer who is advising Ukraine’s government on reparations as the director of Columbia University Law School’s International Claims and Reparations Project, said Zelenskiy and the government “are pushing as hard and with as much urgency as possible” create the international compensation structure but that a mechanism hasn’t been decided on.
Pearsall said that victims like Zhyvotovskyi whose homes were destroyed have historically received at least some compensation eventually. Some of the specialists interviewed by Reuters say reparations have a broader scope than contributing to financial costs, also encompassing things like rehabilitation and recognition of harm.
States have in the past funded reparations, including after World War II when the axis states paid reparations. When states do agree to pay, it is often to other states and not directly to victims, two of the reparations specialists said.
‘SNOWBALL IN HELL’
Zhyvotovskyi’s two-storey brick home sits on a leafy side road off of a Bucha thoroughfare called Yablunska Street. He said he spent about a decade building it - something he said he did with his parents, who have since passed away. He said he envisaged a “happy life” in the house.
That changed on March 3 when dozens of soldiers in armoured vehicles rammed down his fence and commandeered his home. For the next week, Zhyvotovskyi said he and his daughter were forced to share their house with nearly 30 Russian soldiers https://www.reuters.com/investigates/special-report/ukraine-crisis-bucha-killings-soldiers/, who turned it into their quarters, and that he witnessed captives being brought to the house and heard soldiers beating one of them.
By March 10, they managed to slip away from the house but when they returned to Bucha after the Russian retreat in late March, much of his home had been burned out.
Zhyvotovskyi said he was left with nothing. “I had my 51st birthday in someone else's clothes, in someone else's everything. I am so ashamed of this,” Zhyvotovskyi told Reuters while wearing shoes that he said had belonged to his neighbour’s dead husband.
Without sufficient funds to rebuild it, he relies on the good will of community members. In early July, during another Reuters visit, around half a dozen men perched on top of the remains of his house worked to remove collapsed parts of the second floor.
Zhyvotovskyi said he decided to forward evidence about his ordeal to both the ICC and Ukrainian authorities in order to increase the chances of prosecution and reparations. The information they submitted, which lays blame on Russia but doesn’t identify specific soldiers, alleges war crimes include the deliberate destruction of civilian property and illegal detention as well as the torture he heard.
The three reparations specialists said that Zhyvotovskyi was extremely unlikely to gain reparations via the ICC, in part because the court’s mission is to focus on the worst war crimes by the highest-ranking perpetrators. And, only after a perpetrator is convicted - a process that can take years - can victims of that particular crime claim eligibility for reparations.
One of the specialists, Luke Moffett who is a senior lecturer at Belfast University’s school of law, said Zhyvotovskyi’s chances of reparations from the ICC are “infinitesimally small,” and that there is a better chance of “a snowball in hell.”
ALTERNATIVES
Ukrainians like Zhyvotovskyi may have more luck seeking compensation via a national reparations program, which would likely have a lower threshold for people to prove they are victims than via the courts, according to the three specialists. Such a program could in theory distribute both domestic and overseas funding, including voluntary contributions from other countries or organizations. Ukraine has said it plans to establish a national programme for recognising and paying respect to victims.
Funding could also include proceeds from Russian assets seized by other countries, including from sanctioned individuals and entities, said Igor Cvetkovski, a reparations specialist who is consulting with Ukrainian victims and Ukraine’s government on behalf of the United Nation’s migration agency.
Some individual governments, including the United States and Canada, are exploring or implementing legislation that would allow them to seize and sell some Russian assets owned by sanctioned individuals and entities and direct the proceeds to Ukraine. The European Union - which has said it has frozen 13.8 billion euros worth of assets held by sanctioned Russian individuals and entities for the war against Ukraine - has also said it is looking into ways of using frozen assets to fund the rebuilding of Ukraine https://www.reuters.com/world/europe/eu-exploring-using-oligarchs-frozen-assets-rebuild-ukraine-von-der-leyen-2022-05-19/.
It’s still unclear how many people could seek reparations because the conflict is ongoing. “Each day we’re losing people. Each day we’re losing infrastructure,” said Olena Sotnyk, a Ukrainian lawyer and former member of parliament who is helping coordinate discussions between the government, civil society groups and victims on reparations issues.