Russia is not even ready to talk about compensating for the damages caused to Ukrainians, let alone paying for them. German lawyer Norbert Wühler, who knows agressorsʼ weak points, explains how to force it

In May 2023, 43 states created a Register of Reparations — this is the first stage on the way to reparations that Russia must pay for the damage caused to Ukraine. Next, the states should form a compensation commission that will check the claims of the victims and determine the amount of payments. The third stage will be the most difficult — to find funds for compensation if Russia refuses to pay it voluntarily. German lawyer Norbert Wühler is a member of the Board of the Register of Reparations. And he has a lot of experience in this field — he dealt with issues of reparations and restitution in Bosnia, Kosovo, Palestine, Iraq, Germany. Babel correspondent Oksana Kovalenko spoke with Norbert Wühler about how to get money from the aggressor if it does not want to pay, and about the future of the Ukrainian registry.

You have extensive experience in conflict compensation. How does it usually work?

I have a lot of experience working primarily with restitutions, when people were forcibly resettled or forced to flee, and their homes were occupied by other people. After the conflicts, or when they returned, there were disputes over property rights.

During the war in Kosovo, many Kosovars were forced to leave their homes. Serbs came there — the demand for housing was high, so they sometimes settled in the houses of people who fled. After the war, the Kosovars returned, and the question arose as to who had the right to housing. Such a commission was created under the auspices of the United Nations. And this commission was engaged in "immovable property restitution."

The most striking example was the UN Compensation Commission, which was created after Iraqʼs invasion of Kuwait. The current Register of Damages Caused by Russia is based on it. In this commission, I headed the legal department. But at first I was in the same role as Markiyan [Klyuchkovskyi] — I had to create and run the commission. As a result, it considered about 2 million applications. Most of them were submitted by ordinary people fleeing Iraq or Kuwait because of the war.

Another large program operated in Germany and concerned people who were forced to work for the Nazis during World War II. Germany created a fund to pay financial compensation. About 2.5 million claimants submitted their claims and received fixed amounts of compensation. People who were in concentration camps received more than those who were in purely labor camps or engaged in agriculture.

Was this program created at the initiative of Germany?

Germany created this fund and paid, but not entirely voluntarily. There were many lawsuits against Germany not only within the country, but also in the USA. There was a risk that it would lose these lawsuits and have to pay a large compensation. Therefore, a settlement was reached in the courts and Germany paid the funds through this program.

You worked in Palestine on the Register of Damage Caused by the Construction of the Wall. Is there a decision on compensation?

The wall that Israel built in the Palestinian territories cut off many connections, damaged businesses and made life difficult even for schoolchildren, who had to travel much longer to get to school because of it.

There is a register of claims for damages caused by this construction. The register was created by the United Nations, based on the decision of the General Assembly. The Security Council could not do this. This is similar to the situation with Ukraine. The difference is that the Palestinian Claims Registry can only collect information. The countries have not agreed whether to implement the compensation program or not — there is no political will, although the registry has been operating for 15 years.

For a time there was a compensation plan for Palestinian refugees.

Yes, there has been a plan for compensation and possible property restitution of Palestinian refugees since 1948, when the state of Israel was created. About 700 thousand Palestinians were forced to leave their homes then. Many Palestinians hoped they would be able to return. Over the years, various ideas and plans arose, but they were never implemented.

In my personal opinion, this is one of the reasons why the conflict between the Palestinians and Israel is still going on. But I donʼt mean Gaza here — thatʼs another issue.

If we return to Bosnia and the issue of restitution. How exactly did it happen? After all, Ukrainians will also someday return to the occupied territories.

The commission in Bosnia was created according to the Dayton Agreement. Let me remind you that during the war in Bosnia there were mass displacements of people. And after the war, some people wanted to return, but could not because of the political situation. This agreement stipulated that the commission would resolve claims and questions about who owned the land or housing. It was important to establish ownership so that people could sell or lease this land.

But in Kosovo, we got the exact opposite result. At first, Kosovar Albanians fled their homes and Serbs settled there. So the initial idea of the international community was that the Kosovars could return home. But later, after the NATO military operation, the Serbs fled, and the Kosovars returned. So, in the end, the claims in this commission turned out to be mostly from Serbs. And some were given back their ownership. They do not return to Kosovo, but dispose of the property — there is an international Kosovo Real Estate Agency that manages the property, and the Serbs receive income from it.

Now, in the occupied territories, property is taken from Ukrainians and given to Russians. What to do with it?

This is somewhat similar to the situation in Kosovo and Bosnia. But the political situation is different, so it is too early to say what the decisions will be and how events will develop. In general, this issue is addressed in several ways: if people cannot return, they have the right to receive compensation — this can be restitution, or their ownership is recognized and they can sell or rent the property.

How is it decided in practice who is the owner?

If such a commission appears, it will have to recognize the ownership of the original owners of the property. The decision depends on what the legal situation was. And this should correspond to the general principles of international law. In non-democratic countries, it happens that one government in the country changes the laws in favor of a certain part of the population. For example, Syria has the infamous Law #10, which requires people who have left their property to return fairly quickly and claim the right to land, apartments and houses. If they donʼt, they lose everything. This law violates international law.

I am currently consulting an international organization. There is a program that aims to preserve property documents in Syria. When it becomes clear that [Bashar al-Assadʼs] government is about to retake some territories, groups from non-governmental organizations photograph every page of the land cadastre and pass the photo to one of the Western European governments for security. After that, the international organization creates a database on the basis of the received data, which will later help to find out the names of the real owners of the land.

The Syrian government is acting in the same way as Russia is doing now in the occupied parts of the Kherson region.

Right.

The list of damage caused by Russia is similar to the one created for Iraq. But Iraq agreed to pay compensation. Russia does not agree. How can this be overcome?

Now there are attempts to release part of the frozen Russian assets, which are currently under sanctions, for compensation. In the EU, another proposal is to use interest from the frozen assets of the Russian Central Bank not for compensation to the victims, but for the purchase of military equipment. And even after the end of the war, money will be needed for reconstruction. And I have been saying for more than a year that one of the problems of compensation for people who suffered losses in Ukraine will be these competing requests for money. These issues must be solved comprehensively.

If we mention Iraq, it agreed to pay compensation because in that situation it simply could not refuse. The embargo on the sale of oil was lifted from it, but it had to contribute part of the money from the sales to the fund and pay compensation from it.

Now it is hard to imagine that Russia, which trades in oil despite the sanctions, will agree to something similar. But it can see its own interest in this and then at least some part of the funds will go to such a fund.

That is, the main thing is that the embargo on trade in Russian oil has to be real, not declarative?

Yes, because if the embargo is toothless, Russia has no interest in making concessions — it trades anyway.

The problem is that Ukrainians whose homes have been destroyed need money now, and all talk of compensation seems far-fetched.

I have been to Ukraine three times. Ukraine is doing the right thing — it is helping its people to rebuild their homes. Makes payments to families who have lost their breadwinner. All this comes out of oneʼs own pocket, and Russia should pay. The more appeals there are to the registry, the greater the pressure on Russia.

The next step is a compensation mechanism. Can you estimate its prospects?

There will be so many appeals and the numbers will be so large that the exact amount of damages can be calculated for a very long time. You need a system that will allow you to do this quickly.

It will also be necessary to develop a system for rapid assessment of evidence for different types of claims. Environmental damage will be a separate challenge. There will be very significant claims [to Russia] from the Ukrainian government or state institutions, utilities, state energy companies and others. These will be complex claims, they will require more detailed and convincing evidence.

There were cases when Russians did not destroy property, but stole it. For example, art objects — books, paintings, and also refrigerators and washing machines. Is this a question for the Registry of Reparations?

All this should go to one register. I do not think that it is necessary to create different mechanisms for such things, because these are all damages caused by Russia. Arts are objects of cultural history and heritage, it will be difficult to assess their value. But the principle should be the same.

Translated from Ukrainian by Anton Semyzhenko.