In Part Two of this blog series, The Kindness of Strangers, Mark Ross presented the idea that courts, specifically the International Court of Justice (ICJ), could be used to seek judgements and enforcement orders against immobilised assets of the Russian Federation on behalf of the people of Ukraine. The ICJ has jurisdiction over countries and can render judgement, but enforcing those judgements are another matter.

A Class Action

Another option is a type of class action lawsuit focused on the physical damaged caused by Russian aggression at the local level. There are two types of compensation typically sought on behalf of victims of aggression: reparations and restitution. Reparations refers to compensation for physical damage. Think of reparations like an insurance claim. If your business is damaged and destroyed in a flood your insurance company will pay to rebuild and compensate you for lost revenue.

Victim Restitution refers to compensation to restore something that was lost or stolen. In Ukraine, this means compensating people for physical or emotional damage they suffered at the hands of Russian troops. Restitution is tricky to value as emotional suffering is hard to quantify. How much compensation will make up for the loss of a limb or the loss of a child?

Mriya

Hostomel, a town just outside Kyiv, was occupied in the early stages of the Russian invasion. Hostomel is famous for the airfield that hosts the giant Ukrainian Antonov 225 cargo plane, Mriya. Ukrainians have an almost spiritual connection to Antonov planes and as a result, the airfield was one of the first Russian targets in February 2022. Mriya, the largest of the Antonov cargo planes was completely destroyed depriving Ukrainians of a beloved national symbol and a major source of revenue.

If Mriya had been destroyed by a hurricane or fire, the owners would file an insurance claim for the airplane and hangar, and both would be rebuilt. Of course, revenue lost during the rebuilding process would be included in the claim. Unfortunately, not only did Mriya suffer at the hands of the Russians, many people had their homes & businesses damaged or destroyed, and many lost revenue because their workers fled the country. Local infrastructure like bridges, roads, churches, hospitals, schools and community buildings were also destroyed.

Insurance or Assurance?

War is not something you can insure against because insurance companies do not, and should not, compensate victims of aggression by another nation. Russia violated international law and the UN Charter of Rights and Freedoms by invading a peaceful neighbour in 2014 and again in 2022, so Russia must pay all damages. However, making them pay is a fraught with other issues including the unity of opposing nations and international legal procedures.

In the case of Hostomel and many other communities across Ukraine, one option is to gather evidence of all physical damage and calculate all revenue lost by businesses, government and community organisations. Then file one claim for ‘insurance-like’ damages in a court in the U.K., U.S. or EU requesting a claim against Russia, its state-owned enterprises and oiligarch supporters. There are many lawyers who specialise in insurance law and class action claims and most of them would jump at the opportunity to take Russia to court. However, lawyers are expensive but there are organisations willing to finance this legal action in return for a small percentage of the judgement.

While it may appear as war profiteering to pay lawyers to recover money from Russia on behalf of Ukrainians, it may be their only chance to rebuild and recover. If our governments are unwilling to finance the recovery of Ukraine by seizing Russian assets, perhaps it’s time for Ukrainians to take the matter into their own hands and begin seizing Russian assets themselves using the courts.

The Ukrainian people are fighting a superpower as they defend their rights - and ours - to live peacefully. Western nations have provided military support so Ukraine can keep up the fight, but perhaps it’s time for western courts and lawyers to do the same?

Slava Ukraini!  Heroaim Slava!