Domestic Litigation and Compensation to Ukrainian Victims of Russian Aggression
December 11, 2023
Many proposals to compensate Ukrainian victims of Russian aggression do not directly involve domestic courts, in part because foreign sovereign immunity poses significant obstacles to such litigation. There are, however, important cases against Russia currently pending in Ukrainian courts.
These cases were the subject of a recent session held in Lviv, Ukraine, as part of a joint meeting between the American and Ukrainian Societies of International Law. Participants in the session included Chimene Keitner (TLB Advisor), David Pinksy, Ihor Zeman, Ivan Horodyskyy, and many others. This post provides an overview of the cases and their potential significance for international law. It then analyzes litigation against the Wagner Group that is moving forward in the United Kingdom.
Ukrainians have already won domestic tort cases against Russia for war-related damages. The courts issuing those default judgments denied sovereign immunity to Russia in decisions upheld by the Grand Chamber of the Ukrainian Supreme Court. Because Ukraine lacks a statute governing foreign sovereign immunity, the issue is governed by customary international law. According to an English summary, the Ukrainian Supreme Court reasoned that Russia is not entitled to immunity because the invasion of Ukraine violated fundamental international legal norms including the UN Charter, meaning that Russia should not receive the “courtesy and mutual respect between states” upon which immunity is based. The Supreme Court also invoked the territorial tort exception (citing the UN Convention on Jurisdictional Immunities of States and Their Property) which allows states to deny immunity to foreign states that cause harm to an individual on the territory of the forum state. Immunity also, in the court’s view, deprived Ukrainians of the opportunity to protect their rights and put Ukraine in violation of its international obligations under terrorism treaties.
None of those reasons are convincing grounds upon which to deny immunity under customary international law today. The International Court of Justice rejected similar arguments almost a decade ago in a case brought by Germany against Italy for crimes committed by Germany on Italian territory during World War II. Italian domestic courts had denied immunity to Germany based on allegations of that Germany had violated jus cogens norms and had committed torts on Italian territory. The Court surveyed state practice and held that the territorial tort exception did not apply to war time actions by a government’s armed forces and that there was no immunity exception for jus cogens violations of international law. It characterized immunity as a procedural right to which states are entitled even if they have allegedly committed grave violations of international law. This case makes it difficult for Ukraine to argue successfully that Russia is not entitled to immunity. For these and other reasons (such as questions about adequate service of process), the judgments are thus unlikely to be enforced against Russian assets outside of Ukraine.
Ukraine is not alone in denying immunity on controversial grounds, suggesting that the customary international law governing immunity is under pressure — at least from a few states. Italy, for example, has continued to deny immunity to Germany in cases alleging violations of international humanitarian law during World War II. It has also enforced judgments against German assets located in Italy. Germany has accordingly instituted new proceedings before the ICJ against Italy. If the ICJ evaluates state practice again, it will need to consider the Ukrainian cases, which support Italy’s position.
And Canada has recently joined the United States in denying immunity to states that the government designates as sponsors of terrorism. Iran challenged the U.S. law before the ICJ, but the Court held it lacked jurisdiction over the immunity issues. Iran has now sued Canada before the ICJ. Although there is very little practice suggesting that states are not entitled to immunity for terrorism-related actions, some scholars argue that acts of terrorism are not governmental acts (acta jure imperii) to which immunity attaches at all. Even if these arguments are correct, actions taken by the Russian army during an armed conflict may not qualify as terrorism even if they are unlawful. Finally, however, Ukraine would argue that a narrow exception to immunity could be developed based on the U.N. General Assembly resolution in which an overwhelming number of states voted (141-7-32) to condemn the Russian invasion. That resolution said nothing about immunity or even about compensation, however, and the General Assembly resolution calling for reparations was far more contentious (94-14-73).
Cases Against the Wagner Group
Domestic court cases against the Wagner Group, which describes itself as a “private military company” and its founder, Yevgeny Prigozhin, face different obstacles. At least one such action is moving forward in the United Kingdom on behalf of a small group of Ukrainian victims there who allegedly suffered from Wagner’s “campaign of terrorism” including murder, rape, infrastructure attacks designed to “spread terror and chaos in Ukraine.” The plaintiffs appear to be bringing claims of terrorism and conspiracy. The United Kingdom designated Wagner as a “terrorist group” on September 15, 2023, meaning that supporting the group in the UK is a criminal offense, and perhaps bolstering the allegations of terrorist conduct by the organization.
The exact relationship between Wagner and the Russian government is not clear but appears to be close, raising potential immunity issues. Plaintiffs allege that Russian President Vladimir Putin at one time funded the organization, and a Congressional Research Group Report from August 2023 says that Russian military intelligence “reportedly helped establish and oversee” Wagner, including its activities in Ukraine. The relationship between Wagner and Russia might entitle Wagner to immunity under the UK Sovereign Immunity Act (§ 14(2)(a)) if “the proceedings relate to anything done by it in the exercise of sovereign authority.” Characterizing Wagner’s actions as terrorism that is distinct from the sovereign actions of the Russian armed forces may help avoid immunity. On the other hand, as discussed above, Ukraine sometimes characterizes the actions of the Russian army itself as “terrorism,” potentially muddying the distinction between sovereign and non-sovereign conduct.
There do not appear to be any Ukraine-related cases against Wagner in the United States. Wagner has not been designated as a terrorist organization by the U.S. government. If it were so designated – which apparently is still under consideration – any U.S. national harmed by an act of international terrorism by Wagner could sue in the United States, irrespective of where the terrorist act took place. Plaintiffs would still need to establish personal jurisdiction; they might do so through proper service followed by a default judgment.
The customary international law governing state immunity depends on state practice. Although the issue of immunity for armed forces during armed conflict and the question whether acts of terrorism are entitled to immunity are not new, the terrible and unlawful war in Ukraine and the lawsuits it has spawned are generating new state practice and refocusing attention on these important questions.