”If we had ratified the Rome Statute, the International Criminal Court would have already formulated an indictment against Putin.” Interview with ex-judge of the Tribunal for the former Yugoslavia Volodymyr Vasylenko

Why was it important for the former Yugoslavia to organize the tribunal, not to use some other format?

In the early 1990s, the Socialist Federal Republic of Yugoslavia disintegrated, and serious armed conflicts began on its territory: between Serbia and Croatia, Serbia and Bosnia and Herzegovina, and in Kosovo. The parties committed international crimes: genocide, war crimes, and crimes against humanity. This had to be stopped and the culprits brought to justice. For this purpose, on May 25, 1993, the UN Security Council adopted a resolution on the establishment of the International Criminal Tribunal for the former Yugoslavia. Criminals from Bosnia and Herzegovina, Serbia and Croatia involved in international crimes were supposed to be punished there.

The International Criminal Court did not exist then. The practice of creating tribunals (Nuremberg and Tokyo ones) to punish the key German and Japanese war criminals was taken as a model.

The tribunal for the former Yugoslavia worked for 25 years. And now the International Criminal Court is hearing cases about crimes committed 10 or more years ago. Why are these processes so long?

Trials take a long time because the crimes under the jurisdiction of these tribunals do not have a statute of limitations. It is also not always possible to immediately find criminals and physically place them on the dock. But the main reason is that itʼs about serious international criminal crimes. These are serious charges, the terms of punishment for them are serious — up to life imprisonment. The cases were closely followed by the international community, as well as by the states whose citizens were brought to justice. Therefore, the judges tried to evaluate the evidence as meticulously, carefully and objectively as possible. These are specialists with an impeccable reputation and the highest qualifications. They carefully evaluate the evidence, the charges brought by prosecutors, and the rebuttals presented by the defendantsʼ lawyers. It takes a long time. And one more point: lawyers, generally, appealed the verdict. An appeal also takes some time. After the Second World War, there were not so many defendants, but the Nuremberg trial lasted about a year.

What evidence is required for international tribunals? To prove genocide or rape.

There are no fundamental differences between the evidence required to prove a crime in an international or national court. It is important that in international courts and tribunals, persons who occupied the highest positions in the hierarchy of state power and administration get to the dock. This is the leadership of the state, government, and armed forces. Cases against them can also be considered by national courts, if persons suspected of international crimes end up in the hands of the national justice system of the victimized state. There are no special requirements for evidence, regardless of which court hears the case — international or national. The statutes of the tribunals, in particular for the former Yugoslavia, and the current International Criminal Court describe exactly what actions should be considered a crime. The main thing is to collect qualitative evidence that would give a reason to qualify the actions of a specific person according to the specified signs.

Evidence may include official documents, including laws, government decrees, regulations of lower-level government bodies, official speeches and statements of heads of state, as well as directives and orders of the command of the armed forces and commanders of individual military units.

That is, evidence can be ordinary public documents?

Yes. In addition, if there is an opportunity to obtain classified documents, thatʼs great. For example, during hostilities, documents of headquarters or a military unit are seized, including orders obliging them to behave contrary to international humanitarian law. This is the most convincing evidence of crimes.

The next most important evidence is the testimony of people directly involved in the events during which crimes were committed. These are the testimonies of the accused, victims, and witnesses who saw with their own eyes who committed crimes and suffered from them. These are also photos, screenshots, transcripts of telephone conversations, correspondence, etc.

Evidence can also be reports and descriptions of crimes in mass media. Even hearsay can be used to confirm or deny events. The main thing is that there are many different types of evidence that would confirm the same fact of the crime.

Rape is also an element of an international crime in wartime. The national court needs forensic medical examinations, DNA traces, that is, something that is difficult to collect in such times. What to do then?

There are special methods of gathering evidence and investigating such crimes, but their usage depends on the specific situation. Even if there are no traces of DNA, there are testimonies of the victim himself or herself, neighbors, relatives, prisoners, admission of the assailantʼs guilt. That is, the aim is to collect all possible testimonies and evidence in the conditions of war.

If a person has committed a crime directly, it can be punished at the local level. But how to hold the state leadership accountable?

Indeed, it is difficult to prove that the highest state leadership gave direct instructions to commit crimes. However, it is responsible for preventing the misconduct of subordinates. And if information regularly appears in the press about crimes committed by subordinates, and this is confirmed by other evidence, say, the testimony of civilians and prisoners of war, country leaders must react.

If the captured documents were formulated in such a way as to encourage the commitment of crimes, this is also a reason to hold the leaders accountable. Or, letʼs say, Putin recently awarded an honorary title to the brigade and gave state awards to its servicemen. And this brigade committed crimes in Bucha, they were widely reported. That is, he not only did not punish the guilty ones, but also encouraged others. He created conditions for the commitment of new crimes.

The ICC is currently investigating crimes in Ukraine. If it gathers enough evidence, it will try high-ranking officials. However, the ICC can deal with crimes against humanity and war, but not crimes of aggression. Is this because we have not ratified the Rome Statute?

No. The jurisdiction of the ICC includes not only crimes of aggression, but also crimes of genocide, war crimes, and crimes against humanity. The Rome Statute entered into force on July 1, 2002. Therefore, all international crimes committed after that date are subject to the jurisdiction of the ICC. And Russia began aggression against Ukraine on February 20, 2014. But really, the Court cannot hold the leaders of Russia to criminal responsibility for the crime of aggression.

Why?

The fact is that the representatives of the states that drafted the Rome Statute could not agree on the definition of the crime of aggression. Therefore, in Article 5 of the statute, it is listed last, although it follows genocide in terms of severity. After all, the countries reached a consensus and used the qualification of armed aggression as a crime contained in the resolution of the UN General Assembly of 1974, which is called the "Definition of Aggression". An amendment was made to the charter, which reproduces the definition from the resolution word by word, comma by comma.

But for the crime of aggression to fall under the jurisdiction of the ICC, a number of conditions must be met. In particular, both parties — the aggressor state and the victim — must be parties to the Rome Statute. Therefore, unfortunately, it is impossible to bring Putin and his gang to criminal responsibility at the ICC for the crime of aggression against Ukraine. Russia has even withdrawn its signature under the Rome Statute and will not become a party to it in the foreseeable future. So, formally, from a legal point of view, there is no possibility to use the mechanism of the ICC today to punish the military-political leadership of Russia for the act of aggression against Ukraine.

Is that why human rights defenders now are talking about the Special Tribunal?

Yes, this is one of the reasons why there is an initiative to create a Special Tribunal. It is possible to formulate the provisions of its charter in such a way as to bring the highest military and political leadership of Russia to justice for committing the crime of aggression as such. I think there is nothing harmful in such an initiative.

But this should be done in parallel with the use of the ICC mechanism, and its mechanisms should be a priority. The ICC is absolutely legitimate, it was created on the basis of a multilateral international agreement. And it works. In February 2015, the Verkhovna Rada recognized the Courtʼs jurisdiction over Russian crimes in a one-time order. And since September 2015, the Court officially recognized its jurisdiction over the situation that arose in connection with Russiaʼs aggression against Ukraine. The consideration of the Ukrainian case began there.

But nothing has happened since then...

The process slowed down not because the mechanism is ineffective, but because of the inefficient behavior of the Ukrainian authorities: they did not create a special body with a special staff of trained specialists to collect evidence; the provision of evidence was delayed for a long time; the evidence provided was not of sufficient quality.

And most importantly, Ukraine has not ratified the ICC statute. Therefore, consideration of the Ukrainian case was postponed to a distant drawer. Despite the fact that the former ambassador in The Hague Court, Vsevolod Chentsov, repeatedly insisted on the need to ratify the Statute if we want the case to be considered in an accelerated manner. It is my deep conviction: if this had been done in time, the court would have formulated an indictment against Putin, Lavrov, Shoigu and others by February 24, 2022. Their actions would qualify as international crimes — war crimes and crimes against humanity. There are more than enough materials and evidence for this. This would significantly change the situation. In particular, it would affect Emmanuel Macron and other foreign politicians who want to save Putinʼs face by negotiating with him and forcing Ukraine to make unacceptable concessions.

What will the ratification of the Rome Statute bring to Ukraine? Its opponents, for example, say that it will allow Russia to hold the Ukrainian military accountable for war crimes.

This is not just a delusion, but a reproduction of the position of the Russian Federation. The Russian authorities do not want Ukraine to become a full member of the Rome Statute and the Court to be able to consider Ukrainian cases without delays and reservations.

People who say that Ukraineʼs ratification of the Charter is untimely and harmful are either unqualified ignoramuses or direct agents of Russia. On the contrary, abstention from ratification has already caused enormous damage to our country. And the thesis you stated is wild. Sometime in 2015, already during the Russian aggression, the National Security and Defense Council of Ukraine believed that in case of ratification of the Statute, the Russians would use it against Ukraine. They said that the Verkhovna Rada could ratify the Rome Statute only at the same time or even after Russia, which means never.

Once, on a talk show, then-MP Tetyana Chornovol said that the interests of Ukraine would suffer from this, and the Ukrainian military leadership and soldiers would be held accountable. Today, the same thesis is repeated by many parliamentarians, and on May 22 [2022] Andrii Smyrnov, the deputy head of the Presidentʼs Office, stated that the ratification of the Rome Statute will take place only when Ukraine wins the war with Russia. Why? He explains that, according to the Statute, "special competent bodies of foreign countries" means that you have to think about such a thing, why are foreign countries here! ― "they will receive a bunch of statements from the aggressor country," and the same ICC "will be obliged to evaluate these events". This is complete illiteracy and misunderstanding of what the Court is.

And how is it in reality?

Ukraine, in fact, has already ratified the Rome Statute once, when it recognized the jurisdiction of the International Criminal Court. But the outpouring of statements from Russia or other states directed against Ukraine, as it was said, did not happen. Itʼs just that Russia has no right to make such statements, because it did not ratify — it withdrew its signature under the Rome Statute. It can, of course, using its agents of influence, engage public organizations of other countries to file complaints against Ukraine. But the ICC does not consider fakes. It is able to distinguish fakes and Putinʼs fabrications from real facts. What passes in propaganda shows of Solovievs and Skabeevs in the Russian mass media will not pass in the International Criminal Court.

As for the alleged threat to our military. People who express themselves in this way do not understand that the ICC operates according to the principle of complementarity. It begins to consider cases of international criminal offenses of individuals only when the perpetrators are not punished by national courts. So far, there has been no indication that Ukraineʼs top leadership — political and military — is involved in encouraging servicemen to commit war crimes.

But war is war. And it is possible that some Ukrainian servicemen may commit war crimes or crimes against humanity. However, in this case, Ukraine, as a legal state, must punish them. And if these persons are brought to justice in Ukrainian courts, the ICC will have no reason to even raise the issue of their extradition and trial. In addition, the ICC, as a rule, does not consider the cases of ordinary soldiers, even middle-ranking officers. This is considered to be the competence of national courts. If the national court does not punish such people and the leadership (military and political) encouraged the crime, then the ICC will have the right to initiate criminal cases against them.

And one more thing. Articles 8 and 24 of the Association Agreement with the European Union directly stipulate that Ukraine must ratify the Rome Statute. As long as we delay, we violate our international obligations. This is a sensitive issue for the EU, and thank God no one has mentioned it now. But this could be an argument against granting Ukraine candidate status. I am sure that its undecidedness will block Ukraineʼs membership in the EU.

In the ICC, it is impossible to prosecute for the crime of aggression. That is why there is talk of creating a Special Tribunal on Ukraine. We will not be able to create a classic tribunal, as in the case of the former Yugoslavia: such a decision must be made by the UN Security Council, and Russia will block it there. So now there are talks about the option of a hybrid tribunal. However, according to my information, not all European countries want to create it. How realistic is it to do this?

Creating a new tribunal is indeed very difficult. This can be done, but the question of its legitimacy and expediency arises, since the International Criminal Court already exists. And if the court examines all the evidence presented to it and formulates indictments against Putin, Lavrov, Shoigu, Medvedev and this gang, they will be accused of committing the crime of genocide, war crimes and crimes against humanity — that is enough.

If it is possible to prove their guilt in these crimes, there is no need to raise the question of punishment for the crime of aggression?

Of course there is a need. But all the other international crimes they committed in Ukraine are already punishable by life imprisonment — the maximum sentence provided for by the Rome Statute.

But, obviously, aggression on the part of the Russian leadership is easier to prove, because they are shooting at us, seizing territories. Putin directly said in his speech that he was starting a "special operation in Ukraine", but Russiaʼs actions are an act of aggression against Ukraine. In this case, it is easy to prove his direct participation. But it will probably be much more difficult to prove his involvement in the fact that a rocket landed in a specific residential block.

It will be harder. But, without any doubts, this is real and expedient.

That is, the Special Tribunal is not needed?

The priority today should be the existing capabilities of the ICC. In parallel with this, of course, it is necessary to strive for the creation of a Special Tribunal, which would provide for criminal liability for the crime of aggression as such. But it is purely practical for us that it is important that Putin and his team be recognized as war criminals already today. Regardless of what exactly — in an act of aggression or genocide, or crimes against humanity. If they appear as war criminals, it creates a completely different configuration of relations between other states with Russia and its leadership. It will no longer be possible to say that it is necessary to save Putinʼs face, make concessions and negotiate with criminals on their terms.

But itʼs impossible to do this tomorrow or the day after tomorrow, just in ten or so years from now...

It can happen much earlier. It is important to us that the International Criminal Court indicts Russian war criminals. It is clear that it will not be possible to hold them accountable before the collapse of Putinʼs regime. Even if a Special International Tribunal is created and it can present an additional charge of committing aggression. But itʼs not realistic to bring Putin to justice for international crimes, bring him to The Hague and put him on the dock, pass a sentence and then send him to prison, before his regime undergoes a total collapse. Therefore, today the priority among priorities for both Ukraine and the international community is to create an anti-Putin coalition, or rather, to complete its formalization. Its ultimate goal is to achieve the collapse of the regime and bring Russia to responsibility as a state.

You said that itʼs possible to achieve the verdict on Putin earlier. How?

If an anti-Putin coalition is created and it quickly supplies Ukraine with enough weapons, applies more serious sanctions against Russia, Putinʼs regime may fall very soon. Only under this condition is it possible to really hold both Russia and its leadership accountable.

Self-proclaimed president of Belarus Alexandr Lukashenko declared that he supports Russia, and it is from the territory of Belarus that missiles are flying at us. How realistic is it to prosecute him and the people who allowed the rockets to be launched from Belarus?

Belarus is an accomplice to aggression because it allowed its territory to be used as a base for attacking Ukraine. Belarusian troops have not yet directly attacked Ukraine. But according to the definition of the concept of aggression, the use of the territory of a third country to commit aggression also qualifies as an act of aggression. The scope of responsibility, of course, will be much smaller, but Belarus [leadership] must be charged as well.

How exactly can the leadership of Belarus be brought to criminal responsibility?

As in the case of Russia, the criminal responsibility of the leadership of Belarus may occur if the Belarusian state as such is brought to justice. And the responsibility of Belarus can come only after the collapse of Putinʼs regime. Then it will be easy to do, I donʼt see any difficulties in either legal or practical terms. The responsibility of Belarus as a state can be limited only to the criminal responsibility of Lukashenko and his generals in the ICC. Of course, you can make claims to Belarus and demand compensation, but there must be proportionality. After all, it was Russia that started the aggression and caused more damage to Ukraine. Therefore, in my opinion, we should limit ourselves to criminal responsibility for Lukashenko, and demand an answer from Russia in all strictness and in accordance with international law.

Translated from Ukrainian by Anton Semyzhenko.

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