A Marshall Plan for Ukraine should prioritise harm done to humans, not buildings

Residents of Irpin had to abandon their homes and evacuate as Russian troops neared in last year's invasion. Photo: Drop of Light / Shutterstock

We have all seen images of incredibly rapid repairs already being conducted in Ukraine, in particular repairs to the energy infrastructure as Russia continues to target these objects through its strategy of weaponising winter conditions against civilians. From the conference on post-war recovery in Lugano this past summer to specific donor-funded projects, Ukraine’s western partners have demonstrated their commitment to a Marshall Plan that would go beyond emergency repairs and humanitarian needs, but would also encompass a larger recovery process.

This idea of a Marshall Plan for Ukraine is, however, often understood exclusively in economic terms: as reconstruction of damaged buildings, a fresh start for the Ukrainian economy on the macro-level and support to businesses and the financial sector. The discussions seem to be detached from the human cost of the war: the injured and killed civilians, the torture, ill-treatment, enforced disappearances, rape and sexual violence, summary executions, arbitrary arrests and detentions, and many other gruesome human rights violations and war crimes. At best, human losses get attention from the perspective of justice and accountability (i.e., supporting the investigative efforts of Ukraine’s law enforcement to document violations and discussing ideas for international accountability mechanisms, such as the proposal of a special tribunal). This is a short-sighted approach that ignores the need to support and develop the human capital of Ukraine as the utmost priority.

In search of justice

It is at least equally essential – if not critical – to look at Ukraine’s recovery through the lens of fulfilling victims’ rights. The participation of the victim in the justice process, which can ensure accountability for heinous war crimes, can have reparative value in itself but it should not stop there. A shift of attention from the perpetrator to the victim is urgently needed. In practice, that means that Ukraine, with the support of its international partners, ought to build an effective system of individual and collective reparations for victims of war who continue to suffer tremendous harm and injury to their lives, health, livelihood, dignity, property and an array of basic human rights. This is especially relevant in the Ukrainian context, where effective prosecution of Russian soldiers who committed grave violations of international humanitarian law currently is only possible in the event of the capture of prisoners of war.

Committing a war crime, in principle, waives POW immunity from prosecution for mere participation in hostilities, which is otherwise guaranteed to combatants under international law. Considering that the majority of human rights violations that can qualify as war crimes either take place in Ukraine’s occupied territory – notably through the so-called system of “filtration” of undesirables and in places of detention, some reportedly equipped with torture chambers – or are committed by means of long-range artillery, the perpetrators of these crimes are, as a rule of thumb, out of reach of Ukraine’s justice system. Although the situation on the ground is changing rapidly and the prospects for accountability can improve as Ukraine liberates more territory, it would be naïve to ignore the appalling likelihood that most perpetrators, even in the event of a triumphant Ukrainian victory, will simply flee to Russia and be able to enjoy indefinite impunity.

Besides domestic remedies, Ukraine remains highly motivated to seek international accountability. A number of international fora are being considered, both for discussing the responsibility of Russia as a state (notably, for the crime of aggression) and the criminal accountability of individual perpetrators. The options pursued include the International Criminal Court, the International Court of Justice, the European Court of Human Rights, and even the ambitious idea of an ad hoc tribunal or a hybrid judicial mechanism, potentially built on the model of country-specific criminal tribunals such as those that existed for Rwanda, Sierra Leone, the former Yugoslavia and Cambodia.

The legal and practical functioning of these courts is complex and often requires decades before the finalisation of individual cases. In a vivid example, the International Criminal Tribunal for the Former Yugoslavia (ICTY) convicted Ratko Mladić, former commander of the army of Republika Srpska in Bosnia, of genocide, crimes against humanity and violations of the laws or customs of war at the end of 2017. This was 25 years after those crimes were committed between 1992 and 1995. The length of the justice process can seem ridiculously unjustified but, in perspective, the ICTY was one of the few tribunals which benefited from a favourable geopolitical consensus in the early 1990s, especially at the level of the United Nations Security Council, where Russia joined other members to vote for the creation of the court. Needless to say, despite the relative success of the ICTY from the point of view of the enforcement of international law, any wait for justice is always too long for the victims.

Right to reparation

Regardless of the military reality on the ground or the political prospects regarding accountability for Russia’s brutal aggression, Ukraine and its international partners must dedicate much more attention to the victims of war. Survivors of torture, arbitrary detention, and especially rape and sexual violence hold the right to reparation. Justice is a lengthy process, justifiably so, but it should not delay efforts to satisfy the needs and best interests of the victims. The fulfilment of the right to reparation cannot be made contingent upon the conviction of the perpetrator.

Even more so, the “UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”, adopted by the UN General Assembly, recognises that a victim should be considered as such regardless of the identification of the perpetrator. The rights of the victim go beyond just access to justice and also involve adequate, effective and prompt reparation for harm suffered. To put it simply, victims of war crimes need to be able to get effective reparation outside any judicial procedures, which are often, unfortunately, more concerned with the fate of the perpetrator than the victim.

Besides legal arguments, ensuring reparations for Ukrainian victims is also a matter for a smart reconstruction and recovery policy. Examples of post-conflict recovery, such as in the Western Balkans, where some survivors of sexual violence are only receiving compensation for the harm they suffered decades after the war ended, show that fulfilment of the right of individual reparation often lags behind justice and the physical rebuilding process. There is little prospect of successful transitional justice, reintegration and social cohesion between de-occupied territories and other parts of Ukraine without ensuring that victims of torture, sexual violence and arbitrary detention can regain their sense of justice, redress and even fundamental human dignity through access to reparation.

The human cost of an armed conflict produces the most damaging and long-lasting societal consequences. Unlike residential buildings or infrastructure, which can be rebuilt through various forms of financial aid, human suffering cannot be remedied by financial assistance alone. The United Nations, through reports of the High Commissioner for Human Rights and the Independent Commission of Inquiry on Ukraine, recognised a dire deterioration of all fundamental human rights in Ukraine since February 24th 2022. To take a concrete example of conflict-related sexual violence, this type of violation­­ – often rape and, sometimes, even sexual slavery against civilian women and sexual torture against civilian men in occupied territories, as well as various forms of sexual violence against prisoners of war – does not only cause long-term physical and mental health implications for survivors but disrupts the entire livelihoods of families and communities.

Survivors risk being re-victimised through stigma, the insensitive work of law enforcement, and being ostracised in their own community. Their return to normalcy and a regaining of the sense of belonging in society is often impossible without alleviation of the long-lasting harms suffered as a result of sexual violence. These factors drive victims into displacement within or outside the country, lead to unemployment and the breaking of family ties and, in extreme cases, have even resulted in suicide. As one can imagine, similar dire effects are faced by victims of other grave violations – torture, enforced disappearances, arbitrary detention to name a few – which all require a holistic approach to remedies for these victims.

Approaches to compensation

A key condition of effective access to reparation is lowering the standard of eligibility. As recommended by relevant international bodies, for example, the Special Rapporteur on Violence Against Women and Girls, the level of evidence required for receiving reparations should never be equated with judicial criteria, such as those used to convict a person in a trial, as it would defy the very purpose of providing prompt and urgent redress for the harm suffered. The design and implementation of reparation programmes must engage survivors through consultations on their needs and priorities, which would give them a sense of agency and rehabilitation. Luckily, the involvement of victims in the policy-making process to determine a form of reparation has a number of positive international precedents. For example, consultations in post-Pinochet Chile with the next of kin of disappeared persons took place on the appropriate form and method of compensation.

No one can say at this stage – especially as the war continues and reliable information on violations in the occupied territories remains very limited and comes with significant delay – how many Ukrainians have suffered harm and are entitled to reparation. To provide some perspective, in the aftermath of the Iraqi invasion of Kuwait, the UN Compensation Commission for Kuwait awarded total compensation in the amount of 52.4 billion US dollars to 1.5 million successful claimants. Even a relatively favourable geopolitical situation for Kuwait required over 30 years of the commission’s work to deliver on its compensation payments. Comparisons of human suffering are borderline unethical but the scope of destruction and human harm in Ukraine is likely much greater.

Another difference with the invasion of Kuwait is the geopolitical perspective. It was the Security Council that acted to establish the compensation commission and create a fund that accumulated percentages of the proceeds from Iraqi petroleum exports to provide reparations to Kuwaiti claimants. The elephant in the room in Ukraine’s case is of course that Russia, under the current political leadership, would block any similar resolution by the Security Council. This gruesome reality also significantly complicates Ukraine’s determination to establish an international tribunal for Russian aggression. One can certainly hope for a situation whereby Russia, following a decisive military defeat, will undergo a profound political and societal transformation and will be forced to cooperate with the international community. However, we cannot make the right to reparation conditional upon those prospects.

Certainly cognizant of these limitations, Ukraine and its allies have chosen an alternative path. In November, they successfully lobbied for a UN General Assembly resolution titled “Furtherance of remedy and reparation for aggression against Ukraine”. The resolution recommended the creation of an international mechanism for compensation of damages and a register of claims of natural and legal persons in Ukraine. While it is not explicitly addressed in the resolution – which would have, otherwise, diminished the political chances of its adoption – the overall idea seems to be to find a legal way to use Russia’s sanctioned assets to satisfy claims from Ukraine. While the resolution was adopted by a closer margin of votes (94 in favour, 13 against and 74 abstaining) than the overwhelming support given to earlier resolution ES-11/1 “Aggression against Ukraine”, what matters most is that states with large quantities of Russian state and private assets, namely EU countries and the UK, voted in favour. Let us be clear though: the resolution did not establish any concrete mechanism – it was rather a booster shot of international legitimacy for further action by Ukraine’s allies, sadly, outside the UN system.

Human-centred approach

What are the next steps then? The United States, United Kingdom, and the European Union have successfully frozen immense Russian assets, most notably of the Russian central bank, but how do we get from freezing to seizing? In nearly one year of war, no example of the effective repurposing of Russian assets towards reparations has appeared. Instead, concerns, completely justifiable, over the protection of sovereign immunity and property rights emerged in countries where assets had been frozen. In this context, international lawyers inevitably fall back in their thinking on the 2012 Jurisdictional Immunities judgment by the International Court of Justice, where the court confirmed Germany’s state immunity against Italian national courts which had rendered judgments in favour of victims of Nazi-era war crimes. Most importantly regarding where international law stands on the issue, the International Court of Justice unequivocally stated that state immunity is a procedural rule of customary law that does not depend on the gravity of material violations by the state.

How can this legal obstacle be overcome in the absence of an international tribunal and with hardly any prospects for Russia’s cooperation? There is no easy answer, although one cannot rule out the chances of the development of a new treaty-based regime for the repurposing of Russia’s assets to implement its international responsibility vis-à-vis Ukraine. One thing is clear: the process will be long and complex, which defies the notion that victims have the right to prompt reparation.

This is where the idea of a Marshall Plan for Ukraine comes in. It is puzzling that western states are so ready to contribute to Ukraine’s physical reconstruction of roads, bridges, or energy security but are mostly silent on the question of the right of victims to reparation, in particular through monetary compensation. The failure to address human needs and, thus, invest in the human capital of Ukraine undermines the very idea of the durable and successful revival of the country. Bridges and roads must be rebuilt for Ukrainians to use them, not for financial reporting.

Ukraine already legislates, through separate policy processes, on such diverse matters as the destruction of private houses, compensation to civilians who suffered a disability, and payments in eligible cases of the deprivation of liberty in occupied territories. The successful implementation of these mechanisms would certainly benefit from both technical assistance by partner states and direct financing for different types of reparation. Reparation can take various forms and the choice should be guided by the interests of the victims, determinable through consultations with them. In the context of the Russian invasion of Ukraine and its devastating effects on the mental and physical integrity of its victims, rehabilitation, restitution and compensation, including for physical and mental harm, material damages, costs related to medical services, and moral damage, spring to mind as highly relevant and appropriate.

The comprehensive plan for the reconstruction of Ukraine is unthinkable and untenable without a reparations system that would be able to satisfy claims of individuals. This new Marshall Plan needs to revolve around a human-centred approach that places the needs of civilians at the core of the recovery effort. Humanity has come a long way since inter-state reparations and macro-financial assistance for recovery in the aftermath of devastating wars in Europe in the previous century. The year 2023 is high time for setting the international precedent for human-oriented reparations to ensure the recovery of fundamental rights, livelihoods, and human dignity.

Maksym Popovych is a human rights lawyer from Ukraine. He specialises in the situation of human rights and international humanitarian law violations in the territories of Ukraine occupied by the Russian Federation.

Marshall Plan, reconstruction, Russian war against Ukraine, Ukraine