Compensation for housing destroyed or damaged by the russian–ukrainian war (national and international dimensions)

The study analyses international norms, experiences of post-conflict countries, domestic legislation, and case law along the path of a victim. It also identifies problems of access of victims to the national compensation mechanism and draws conclusions on expected adverse impacts of these problems on compensation awards to victims, including through an international compensation mechanism. Based on the study results, recommendations are proposed for stakeholders.

INTRODUCTION

Millions of Ukrainians have become victims of the Russian-Ukrainian war, ongoing since February 2014. However, both international organisations and the government of Ukraine started accounting and recording human and material losses on a regular basis only following Russia’s full-scale invasion of Ukraine, i.e. since 24 February 2022.2 Housing is part of the right to an adequate and dignified standard of living (Articles 47 and 48 of the Constitution of Ukraine, Article 25(1) of the Universal Declaration of Human Rights of 1948, Article 11(1) of the International Covenant on Economic, Social and Cultural Rights of 1966).

Massive missile and artillery attacks on cities are part of Russia’s warfare tactics. They cause significant destruction to the housing stock in cities and towns, especially those close to the frontline areas. The fourth Rapid Damage and Needs Assessment (RDNA4) takes stock of almost three years of the ongoing invasion, 24 February 2022 to 31 December 2024, estimating that USD 176 billion (EUR 170 billion) in direct damage has been incurred compared with USD 152 billion (ERU 138 billion) in the RDNA3 report released in February 2024.

The most affected sectors were housing, transportation, energy, trade and industry, and education. According to the current assessment, 13% of the total housing stock has been damaged or destroyed, affecting more than 2.5 million households. Reconstruction and recovery needs are the highest in the housing sector amounting to almost USD 84 billion (EUR 170 billion) of total long-term needs.

According to Ukraine Humanitarian Needs and Response Plan 2024 of the United Nations Office for the Coordination of Humanitarian Affairs, 14.6 million people needed humanitarian assistance and protection in 2024, including 7.9 million people in need of shelter and non-food items. Life-saving shelter and non-food items were to be provided to 3.9 million war-affected people.

The Ukrainian government provided assistance to citizens who had lost their homes in whole or in part since 2014 as a result of the Anti-Terrorist Operation based on the then-applicable regulatory acts.

However, despite the availability, for example, of provisions on war-related emergencies in the Code of Civil Protection of Ukraine5, that piece of legislation, like all Ukrainian laws, was not “tailored” to war context. 2019 can be viewed as the starting point for establishing a national compensation mechanism.

That was when the Cabinet of Ministers of Ukraine amended the Procedure under the Cabinet Resolution No. 947, based on the practice of applying the regulatory acts in force in 2014 (the Code of Civil Protection of Ukraine and the Resolution of the Cabinet of Ministers of Ukraine No. 947 “On Approval of the Procedure for Providing and Calculating the Amount of Monetary Payment to Emergency Victims Who Remained at Their Previous Place of Residence” (hereinafter referred to as the Procedure under the Cabinet Resolution No. 947)6 adopted on 18 December 2013 in the implementation of some provisions of the Code) and on case law on claims of victims of acts of terrorism by Russia in certain areas of Donetsk and Luhansk oblasts. In 2023, the Law of Ukraine No. 2923-IX7 “On Compensation for Damage and Destruction of Certain Categories of Immovable Property as a Result of Hostilities, Acts of Terrorism, Sabotage Caused by the Armed Aggression of the Russian Federation against Ukraine and on the State Register of Property Damaged and Destroyed as a Result of Hostilities, Acts of Terrorism, Sabotage Caused by the Armed Aggression of the Russian Federation against Ukraine” of 23 February 2023 (hereinafter referred to as the Law on Compensation) was adopted along with a number of resolutions of the Cabinet of Ministers of Ukraine for its implementation.

As part of an international initiative to hold Russia accountable, work began in 2022 on establishing an international compensation mechanism, an ad hoc instrument designed to ensure compensation for the damage caused. Its first component, the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine, was established in 2023 at a very fast pace compared with similar instruments. It was initiated on 17 May 2023 when more than 40 Member States of the Council of Europe, the US, Japan, Canada, and the EU signed a relevant agreement. The submission of applications for two categories of damage, one of which is damaged and destroyed housing, is already under way.

Why is there a need to examine the context of compensation for victims?

First, it should be noted that Ukraine is a party to an international armed conflict and has suffered from the actions of the Russian Federation, and the burden of compensation should therefore be placed on the one who caused the damage that is the Russian Federation as an aggressor state. This obligation of Russia is confirmed by the norms of international human rights law, international humanitarian law, and international criminal law. Under international human rights law, Ukraine has the obligation to assist its citizens (those who live under its jurisdiction and in the Ukrainian government-controlled areas) in securing their housing rights.

Hence, is the obligation of Russia as an aggressor state to ensure compensation for the damage (various types of reparations which will be further discussed in this study).

Second, both the above Law on Compensation and an international compensation mechanism provide for obligations only in relation to victims whose housing was damaged or destroyed on and after 24 February 2022. Such approach seems to be unfair, and it is therefore necessary to assess its compliance with international human rights law.

Third, victims whose housing was damaged or destroyed as a result of Russia’s armed aggression against Ukraine since 2014 have problems with access to information about ways to receive assistance from the government of Ukraine and do not have the right to reparations in accordance with an international compensation mechanism being developed. This affects the fairness of victims’ access to resources.

The study analyses international norms, experiences of post-conflict countries, domestic legislation, and case law along the path of a victim. It also identifies problems of access of victims to the national compensation mechanism and draws conclusions on expected adverse impacts of these problems on compensation awards to victims, including through an international compensation mechanism. Based on the study results, recommendations are proposed for stakeholders.

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