Nine years of aggression: Why russia must be held accountable in international courts for its crimes since 2014

The recent news about the demonstrative brutality of the russian army during the war in Ukraine makes us think about what the concept of a "terrorist state" actually means. And whether there is a comprehensive form of responsibility to which the attackers can be brought. "There will be no ruins in Ukraine. This is our goal. And this will be quite concrete proof of the complete defeat of the terrorist state. Especially since the world knows the solution – regarding the assets of russia, russian officials, oligarchs who got rich while their state was becoming a terrorist... All these assets should be used to compensate for the losses of those to whom russia brought pain and suffering. russian assets must go to recovery after aggression. The war should be the most costly for the aggressor exactly. And we do everything for this.," President Volodymyr Zelensky said in his evening address on 12 April.

After the full-scale invasion, the victims were filing individual claims against russia for compensation in the courts of Ukraine and the ECHR. However, russia's war against Ukraine did not begin on 24 February 2022, but much earlier. Actually, it has been going on for nine years. Therefore, the losses should be compensated for the period since 2014. What had then prevented people from filing claims with the authorised institutions for the periods preceding the full-scale invasion? The reasons include both the lack of an established approach of the European Court of Human Rights (ECHR) towards establishing the 'starting point' of russian control in eastern Ukraine and the absence of conclusions from the Ukrainian Supreme Court on the possibility of filing direct claims against russia, ignoring the jurisdictional immunity of the aggressor state. In total, the ECHR is currently considering five interstate cases on Ukraine's applications against russia and more than 8,500 individual applications from Ukrainian victims.

Oleg Beketov, Senior Partner of International Litigation Practice at Eterna Law; Kristina Shapovalova, Counsel of International Litigation Practice at Eterna Law, Head of International Practice of Compensation for Damages Caused by War, Co-Chair of the Ukrainian Bar Association Committee on Compensation for Damages Caused by Military Aggression and War Crimes; and Oleksiy Metel, Associate of International Litigation Practice at Eterna Law, explain for Mind whether something has changed now and how victims in Ukraine can take advantage of it.

Is it possible to claim damages caused by russia through the courts of Ukraine? In April 2022, the Supreme Court stated in its ruling that since 2014, it had been a well-known fact that the russian federation had been carrying out armed aggression against Ukraine. Therefore, the Ukrainian court, after the outbreak of the war in Ukraine in 2014, when considering a case where the russian federation is the defendant, has the right to ignore the immunity of this country and consider cases on compensation for damage caused by the armed aggression of the russian federation. Accordingly, the Supreme Court pointed out that victims had been able to file lawsuits against russia in Ukrainian courts since 2014. Previously, the victims had been seeking compensation from Ukraine.

Currently, affected citizens and businesses have no obstacles in recovering damages from russia, given:

• the fact that the Supreme Court's conclusions on the possibility of ignoring russia's immunity in claims for compensation for damages are a guideline for lower courts, and therefore Ukrainian courts have jurisdiction to consider them;
• the absence of a statute of limitations on these claims;
• the assessment by the court of the amount of damages based on the evidence provided;
• the possibility of recognizing and enforcing a judgement abroad (EU, USA, UK, etc.) and obtaining executive documents for the right to enforce a judgement in Ukraine;
• the possibility to receive compensation from fund sources when creating an out-of-court compensation mechanism (experience of the UN Compensation Commission for Kuwait).

What facts does Ukraine point to? The list of facts that confirm russia's aggression and aggressive policy since 2014 includes, in particular:

• the occupation of eastern Ukraine by russia began immediately after russia established effective control over Crimea;
• the russian federation has extraterritorial jurisdiction within the meaning of the convention at the latest from the end of April 2014, which is confirmed by the following: effective control over the territory (presence of the russian military and weapons), military, political and economic influence on the leadership of the so-called D/LPR; physical control exerted by representatives of the russian federation over victims of human rights violations;
• the existence of the administrative practice of human rights violations by the russian federation is confirmed by two main types of evidence: reports of international organisations and testimonies of witnesses who confirm the information contained in the reports;
• the rule of exhaustion of effective national remedies does not apply in connection with the existence of the administrative practice of human rights violations by russia (as in the Crimean cases).

How was the case proceeding? The russian federation denied the competence of the ECHR and the events described in the applications of Ukraine and the Netherlands, in particular, its involvement in the downing of the aircraft. The russian government even suspended the team of its own Ministry of Justice, which represented the country's interests in the ECHR. russia managed to withdraw from the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe and adopted legislation that makes the ECHR judgments ineffective in russia.

However, the russian federation is mistaken in believing that the measures taken will help it to avoid responsibility.

Subsequently, in 2020, the court consolidated three interstate cases against the russian federation into one: two of them at the request of Ukraine and one at the request of the Netherlands regarding the downing of Malaysia Airlines flight MH17 in eastern Ukraine in 2017, which resulted in the deaths of 298 people, including 196 Dutch citizens (hereinafter referred to as the "Ukraine and the Netherlands v. russia case").

Why did this case become a precedent? The judgement on jurisdiction and admissibility in the interstate case "Ukraine and the Netherlands v. russia" is a precedent-setting decision.

The ECHR analysed the issues related to russia's presence on the territory of the so-called "LPR" and "DPR", assessing the evidence, deciding on the court's jurisdiction to consider complaints from victims who were outside the territory controlled by pro-russian separatists, etc. The judgement clarifies the issue of russia's effective control over the pro-russian separatists who have been in the territory of the self-proclaimed L/DPR since 2014.

The court found that russia's effective control over Ukrainian territories, through its military, political and economic support to the so-called L/DPR, began on 11 May 2014, the day the so-called L/DPR declared themselves 'sovereign states' and formed new 'governments' in pseudo-referendums on 'independence'.

It is russia that is responsible for the actions and omissions of pro-russian separatists and administrations under its control. According to the court's decision, the elements confirming russia's effective control over eastern Ukraine are as follows:

• military presence and support, supply of weapons, provision of artillery;
• training of russian soldiers who later took part in hostilities in eastern Ukraine;
• the build-up of russian troops along the russian-Ukrainian border in March 2014 for further deployment in eastern Ukraine;
• political and economic support for the separatists, etc.

The court found that the territories in eastern Ukraine seized by the separatists from 11 May 2014 and at least until 26 January 2022 were under the jurisdiction of the russian federation. The presence of the russian military in eastern Ukraine since April 2014 and the large-scale deployment of russian troops since August 2014 at the latest were determined.

How to prove the facts of russian aggression in the future? In support of their arguments, Ukraine and the Netherlands referred to reports of international bodies such as the OSCE and the Office of the United Nations High Commissioner for Human Rights, as well as the findings of the Joint Investigation Team (JIT) on the downing of MH17. The court also took into account intelligence materials, witness statements, interviews and press conferences, and media reports, with the following reservations.

The court stated that reports of non-governmental organisations and research groups may be taken into account if the court is satisfied with the experience and reputation of the authors of the report and the reliability of the sources of information. In this case, the authors of the Atlantic Council, Bellingcat and InformNapalm reports are considered by the court to be serious and trustworthy.

Media articles cannot be considered as evidence of the parties' positions on their own, but may be taken into account as relevant elements consistent with or contradictory to other evidence in the case. Articles that fall into the category of investigative journalism, and thus are based on first-hand research that is sufficiently documented, may deserve special attention.

The ECHR's approach sets a standard of proof that can also be used by plaintiffs in this category of cases.

Is ECHR practice useful when applying to Ukrainian courts? The ECHR practice is part of Ukrainian legislation, which provides the application of these judgements as a source of law under Article 17 of the Law of Ukraine "On the Execution of Judgements and Application of the ECHR Practice".

The jurisdiction of a state, in this case – russia, beyond its own territorial borders, occurs, including when, as a result of lawful or unlawful military actions, the state has effective control over the territory outside its national territory. In determining whether effective control exists, the ECHR primarily refers to the strength of the state's military presence in the area.

Thus, the judgement of the Grand Chamber of the ECHR in the case Ukraine and the Netherlands v. russia will strengthen the victims’ claims against the aggressor state pending in the ECHR, Ukrainian courts and arbitration tribunals. Together with the conclusions of the Supreme Court, it opens up the possibility for Ukrainian citizens and businesses to file new claims against russia for the period since 2014.