“There are no arguments against the ratification of the Rome Statute.” The OP deputy head Iryna Mudra talk about the prospects of the tribunal, reparations and the legitimacy of Zelensky

The spring of 2024 brought some good news to Ukraine. On April 2, the Hague created a Register of Losses due to Russian aggression, and Europe finally started talking about the possibility of using Russiaʼs frozen assets for the benefit of Ukraine. In addition, there was a real chance to create a special tribunal for the crime of aggression. All this is the result of the work of a large group of Ukrainian lawyers. Among them is the former deputy Minister of Justice, and from March 29, 2024, the deputy head of the Office of the President (OP) for Legal Affairs Iryna Mudra. They — together with Ambassador-at-Large Anton Korynevych — worked on the issue of reparations and a tribunal for Russians. When these topics were separated, Korynevych concentrated on the tribunal, and Mudra — on reparations. Now in the Office of the President, she is responsible for many more areas, in particular, the process of selecting judges and seeking consensus on the ratification of the Rome Statute. Babel correspondent Oksana Kovalenko spoke with Iryna Mudra about the prospects of paying reparations, the tribunal, the ratification of the Rome Statute, as well as the constitutionality of the Presidentʼs powers after May 21, 2024.

Estonia is the first European country to agree to transfer Russian assets to Ukraine. [Anthony] Blinken said in Kyiv that the US plans to use the seized assets. In your opinion, when will Ukrainians be able to receive compensation for the damages caused by Russia?

As for how to take Russian money, the answer is very simple — international law and the doctrine of "countermeasures" allows any state in the world to temporarily waive the immunity enjoyed by Russian assets. Until Russia stops the aggression and pays compensation. The states in which the assets of the Central Bank of the Russian Federation are stored have already violated immunity when they froze these assets. Therefore, now the only thing missing for confiscation is the political will.

Last month, we launched the Register of Losses — as the first component of the international compensation mechanism. Now we are preparing to launch the second element — the application review commission. And significant progress is here too: we have moved from the key principles of the creation of the commission to the specific provisions of the international agreement.

The frozen money is needed for the compensation fund, from which money will be paid to the victims. According to optimistic forecasts, this mechanism will work in a year (or a year and a half), maybe in two.

Some EU officials say frozen assets can be used to support Ukraine now. How can it work?

This mechanism is discussed by states at the level of the "Big Seven" (G7). So far, there is no consensus on full confiscation: the United States and Great Britain support it, while Germany and France are categorically against it and are looking for alternatives such as collateralization. The G7 summit will be held in June, and now they are discussing the issue of a loan to Ukraine, which can be repaid with surplus profits from Russian frozen assets.

So, the issue will be resolved already in June?

Right, the countries should come to the G7 summit with a common position regarding Russian assets.

We ourselves will be able to determine what to spend these funds on?

If it is in the form of a loan, it is unlikely that we will be allowed to determine it. Of course, Ukraine will declare its position regarding the use of such funds. But it is still too early to discuss it — we do not understand in what form we will receive the funds.

Recently, the Committee of Ministers of the Council of Europe instructed the Secretary General to prepare documents that could potentially create a special tribunal to investigate Russian aggression. How workable is this idea?

Ukraine welcomes such a perspective. This idea is supported by the member states of the Core Group, and especially the states of the Council of Europe. There is still no optimal form of the tribunal, but the main provisions of the agreement between the Council of Europe and Ukraine were already discussed at the last meeting. This is a significant step forward compared to where we started.

For now, the ideal model remains the special tribunal based on the decision of the UN Security Council, because it will undoubtedly be able to overcome "the immunity of three". Although we understand that this scenario is unrealistic due to the presence of Russia in the Security Council.

There was another option — a hybrid tribunal based on Ukrainian legislation with a possible transfer of proceedings to another jurisdiction. But such a tribunal will be governed by Ukrainian legislation. So this is a weak option, because it will definitely not be possible to bring "the three" to justice — and this is absolutely unacceptable for us.

In case of a tribunal through an agreement with the Council of Europe, will non-member countries be able to join it? How many can there be?

Yes, of course, not only members of the Council of Europe can join the tribunal. If you look at the damage register, it was created by 43 countries and the European Union as a regional organization. All the G7 countries are there (that is, Canada, the USA, and Japan). Today we have 40 countries that are part of the Core Group. Of course, we did not make a roll call, but the bulk of these countries support the idea of the tribunal through the expanded agreement with the Council of Europe. And this gives hope that these countries are ready to join.

But it is worth understanding that the agreement itself is only a “candy wrapper”, and “the candy” is the statute that will determine the essence of this tribunal.

What key positions for Ukraine should be in the statute?

The statute will be an appendix to the agreement. Here we have key issues: investigation and prosecution without the participation of a person, Putinʼs immunity, transfer of proceedings from Ukrainian jurisdiction, definition of the crime of aggression. These issues are already being discussed on the Core Group. Somewhere there is more understanding, and somewhere there is none at all (for example, in the issue of immunities). In the issue of courts in absentia, we look at the example of the International Criminal Court (ICC).

But the International Criminal Court does not make decisions in absentia.

They conduct investigations in absentia, collect evidence, and issue arrest warrants. This is not a stumbling block for us if the majority of countries insist on the face-to-face examination of the Russian presidentʼs case. Of course, we would like Putin to sit there, but if everything is ready and we just have to wait for him to be arrested and delivered, Ukraine is ready to agree to that. But we definitely do not agree with attempts to generally protect him from responsibility while he is the head of state.

Do you believe that it will be possible to reverse the situation and prove that Putin should not have immunity?

It is difficult to imagine a tribunal for the crime of aggression, in which the main perpetrator of this aggression will not be present. How can the norms of international law protect someone who is trying to destroy the entire system of international law? Putinʼs punishment is the most important thing.

Punishment of Putin is necessary not only for Ukraine, it is necessary for the whole world. This is a question of the rule of law.

The USA, France, Italy and Canada do not yet agree that the tribunal should overcome "the iimunity of three". Can the question of immunity be left to the judges of the tribunal?

As a matter of fact, this is the alternative that we are proposing — not to touch on this issue in the statute, but to leave it to the discretion of the judges. I think this is a fairly compromise alternative. But we have not yet received any clear vision regarding such a proposal from the partners.

And how real is the tribunal without the US? Because we see that they often do not want to create precedents for the responsibility of the leadership of countries.

I do not reject such an opinion, it is possible without the USA. The problem is that any position on "the immunity of three" must be shared by all G7 countries. Therefore, the question is whether the other G7 members will agree to the proposal to refer the matter to the judges of the tribunal. If suddenly everyone except the US agrees, it will look strange not to have States in this tribunal.

If the idea to create a tribunal with the Council of Europe does not work? What is Plan B?

The Council of Europe offers to provide its platform for the tribunal, so I see no point in assuming any legal obstacles — there are none of them. The main problem is immunity. If we do not solve it, the expediency of such a format of the tribunal will be greatly questioned. We would not like to create it with individual Baltic countries or other European countries, because the question of its legitimacy will arise.

When will the documents and statute be signed?

It is understood that the next meeting of the Core Group will be at the end of June in Bucharest. The text of the agreement should be presented there, although all members of the group have already seen it. They also present the draft statute there, they are still working on it now.

Can they agree on the statute in the coming months?

It will be actively discussed. As I said, the key is the issue of immunity. Overcoming it is an exclusively political issue. If the political leaders get along, there will be no problems.

Human rights activists have been urging Ukraine to ratify the Rome Statute for many years. This will allow us to have not only duties, but also rights in the International Criminal Court. Why do we not ratify the statute?

You are right. Back when I worked in the Ministry of Justice, we prepared all the necessary documents for ratification. But there was a disinformation campaign, due to which a part of society believes that if we ratify the charter, the ICC can hold our military accountable. In fact, the ICC can already do this — we recognized its jurisdiction on November 21, 2013.

Our delegation recently visited the ISS. There, in the secretariat, we were made to understand that if Ukraine ratified the Rome Statute, there would be great chances to appoint a judge from Ukraine in 2026-2027. If the statute is ratified, Ukraine will participate in the assembly of states participating in the International Criminal Court, approve the budget, and so on. That is, we will have the right to influence the priorities of the court.

Now we are calling on other countries to execute the arrest warrant for Putin and Lvova-Belova. But in response we are immediately asked why we do not ratify the Rome Statute. I have heard this question more than once. In addition, the ratification of the Rome Statute is a prerequisite for joining the EU. Therefore, in my opinion, there are no arguments against ratification.

Will you advise the President to do this while the war is going on?

I cannot say that tomorrow we will ratify it, but at least I will work in this direction. I do not know who formed the opinion of the military. I heard many stories that it was some kind of cohort of lawyers. Therefore, now I want to meet with the Ministry of Defense, with the lawyers of the General Staff, in order to at least listen to their position, what are their reservations. Because it seems to me like a well-planned Russian psychological operations.

To give advice to the President, you need to have an agreed position in the country. I cannot go to advise when I understand that it will cause discontent among the military.

Starting in May 2021, the President has a ready for his signing draft law that introduces crimes against humanity into the Criminal Code and describes war crimes in detail. He was supported by many international lawyers. What is the problem there?

This is an important draft law. But it was prepared and given to the President for his signature even before the start of a full-scale invasion. In my opinion, it is now necessary to rethink the general concept of responsibility for war crimes. I understand that it is also related to the issue of ratification of the Rome Statute. Here I also heard about the fears of the military that the commanding staff could be brought to justice. Therefore, it is necessary to study this issue once again and adapt it to current realities.

Russia is destabilizing the issue of Zelenskyʼs powers after May 21. We wrote a comprehensive legal analysis about it. But some lawyers believe that this debate should be stopped by the Constitutional Court (in case the President goes there). Are you considering this possibility?

Last week, at a meeting of the UN Security Council, the representative of the Russian Federation [Vasyl] Nebenzia said that the Ukrainian authorities should refer this issue to the Constitutional Court, but they will not do so, because they are afraid. So we conclude that these appeals to the Constitutional Court are supported by the Russian narrative.

I have seen your legal analysis and I have nothing to add to it, it is well explained. I will say only one thing. In November 2023, there were political consultations within the framework of the Jean Monnet dialogue, with the participation of the EU, the USA, representatives of groups and factions of the Verkhovna Rada (the Ukrainian Parliament). They signed a conclusion on the achievement of agreement and understanding between the representatives of all parliamentary factions. It was agreed that the elections would be held after the end of the war, and the parliament would develop a special law that would regulate it. It seems that it was laid on at least six months after the end of martial law.

Therefore, taking into account the norms of the Constitution, the legislation and the agreements of the parliamentary factions, I believe that the President has no reason to appeal to the Constitutional Court. Iʼll just remind you that the terms of office of the previous presidents [Viktor] Yushchenko and [Leonid] Kuchma did not over, they just expired. Someone served longer than half a year, someone for a few weeks. And then there were no questions.

Currently, competitions for the positions of judges are ongoing, since the High Qualification Comission of Justice of Ukraine (HQCJU) and the High Council of Justice (HCJ) have become operational. How well is the process of selecting judges going?

Today, depending on the specialization and institutionalization of the court, from 22% to 61% of the positions of judges are vacant. Therefore, this was the first issue I focused on after being appointed to the Office and made an inventory of the HCJ submissions.

The competition for 1 350 positions of judges has begun, including local courts, appeals courts, and the High Anti-Corruption Court (HACC). But people are put off by the strict criteria for the integrity check — the bar of requirements for a judge according to the recommendations of the Venice Commission is very high. Realizing that tomorrow the whole country will find out when you, for example, violated traffic rules or where you did not pay alimony, people do not want to apply for the competition.

In my opinion, in the process of selecting judges, it will be clear whether it is necessary to revise these requirements. It is one thing to live in a country of 40 million people without a war. The other is when someone is at the front, someone left, someone stayed in the occupied territories, and there are not enough people.

In addition, we still have the issue of staffing the High Council of Justice both according to the Presidentʼs quota and according to the quota of the Verkhovna Rada and the Congress of Lawyers. The Congress of Lawyers is not going to be held, and it is not yet known when it will happen.

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