Mass civil legal action to seek compensation for Ukrainian war victims

— The Guardian

This piece was originally published in The Guardian on 31st May 2022. You can read the original piece here.

A consortium of Ukrainian and international lawyers is preparing to launch a mass civil legal action against the Russian state, as well as private military contractors and businesspeople backing the Russian war effort, in an attempt to gain financial compensation for millions of Ukrainian victims of the war, the Guardian can reveal.

The team, made up of hundreds of lawyers and several major law firms, plans to bring “multiple actions in different jurisdictions against different targets”, including the UK and the US, said Jason McCue, a London-based lawyer who is coordinating the initiative, in an interview in Kyiv.

The plan is to use UK and US judgments to seize Russian assets across the globe.

Targets are likely to include the Russian state and private military contractors such as the Wagner Group, which is believed to have been active in Ukraine. But McCue said they would also include business figures linked to these contractors, and to the Russian war effort more broadly. He believes that it will be possible to go after assets that have already been hit by sanctions as well as those that have not.

The class action will be a private case, independent of the Ukrainian state. But according to McCue, they will need access to Ukraine’s evidence and intelligence.

The Ukrainian MP and businessman Serhiy Taruta is supporting the initiative by facilitating meetings for the lawyers and investigators with Ukrainian officials.

Taruta, who is from Mariupol and had investments in the city, lost a large chunk of his business when Russia and its proxy forces took more than half of the Donbas region in 2014. This time he lost friends, colleagues and a cousin as Russia destroyed Mariupol while attempting to occupy it.

“Ukrainians have waited 20 years for the prosecution of [Pavlo] Lazarenko, and now eight for MH17,” said Taruta, referring to a case against Ukraine’s former prime minister who embezzled millions, and to an ongoing case in The Hague over the downing of a Malaysian Airlines flight in 2014.

“We need to develop a quicker mechanism [for compensation],” said Taruta. “The normal routes are too slow.”

Ukraine has already begun prosecuting captured Russian soldiers for war crimes in criminal cases, and other war crime cases may later be tried in international courts. But claims for reparations for the war damage are trickier, and McCue said part of the idea behind speedily launching the case was because reparations on a state-to-state level are rarely possible.

“Often when it gets to the negotiations, the issue of reparations is put to one side to focus on the sustainability of peace,” he said.

According to Taruta, individuals who have suffered the loss of a loved one or property or who have been injured will be the primary recipients of the compensation, followed by state and local institutions, and only then businesses. He estimated the total potential claim could be no less than $1tn (£793.9bn).

A number of teams of investigators have come on board to help the team find assets of businesspeople they believe to be complicit in Russia’s war effort. They include Bellingcat, which has been investigating the activities of the Wagner Group and other Russian private military contractors for some years.

“We are closely monitoring the activity of Russia’s mercenary units in Ukraine,” said Christo Grozev, Bellingcat’s executive director.

“We believe that a deep dive into the [Wagner Group’s] chain of command and its links to official Russian authorities would not only help bring justice for the victims and their families, but also will bring more public awareness and transparency on how Russia is conducting this war,” said Grozev.

A key part of the case will involve pleading that Russia’s invasion is not just an aggressive war but also falls at least partially under the legal definition of terrorism, which would make it easier to go after assets.

“All the legal teams from different countries are satisfied that we have what we need,” said McCue. “It’s very solid.”

McCue has extensive experience in similar cases on a smaller scale, the first of which was won on behalf of victims of the 1998 Omagh bombing, in which four men were found liable for the bombing and ordered to pay compensation to families of the victims.

“The evidence was with the police but nobody was prosecuting because of the peace process,” said McCue, who described how the families approached him. “So, we did a civil action, and we won, and we managed to take houses off two of them.”

The Ukraine case, which is much bigger in scale, is likely to operate on similar principles, though it will be more focused on winning financial compensation for people who have suffered the loss of their loved ones, property or businesses.

“The Omagh case wasn’t about money, it was about proving who did it. This case is about money,” said McCue.

He conceded that there would be enormous work ahead to verify and rank cases and create a “victim hierarchy”, and that targeted figures were likely to work hard to move or cover up their assets. However, he said he believed the case had a good chance of succeeding.

“What we know is that if we don’t do this, people are less likely to get something. This increases the chances,” he said.