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”There are more and more signs that the intention, according to Putin, is to completely destroy Ukrainians.” Lawyer Mark Ellis worked with the tribunals and tells what it takes to convict the Russian elite for the war

Author:: Oksana Kovalenko
Editor:: Tetyana Lohvynenko

Date:: 17:14, 25 july 2022

”There are more and more signs that the intention, according to Putin, is to completely destroy Ukrainians.” Lawyer Mark Ellis worked with the tribunals and tells what it takes to convict the Russian elite for the war — Rescuers evacuate an elderly woman from a house on Obolon in Kyiv, where a Russian projectile hit.

Since the 1990s, there have been many conflicts in the world, during which the participants committed international crimes: they killed civilians, tortured them, raped women, and committed genocide. This happened, in particular, in the countries of the former Yugoslavia, in Rwanda, Liberia, Kenya, etc. International tribunals were created to punish criminals, including presidents and heads of government. Thus, the president of Serbia Slobodan Milosevic, the president of Liberia Charles Taylor, the prime minister of Rwanda Jean Kambanda

He received a life sentence for crimes against humanity. Among the proven cases was the promotion of xenophobic propaganda by the RTLM radio station, which called for the extermination of Tutsi citizens.

, the Finance Minister of his government

On September 1, 2003, the case of Emmanuel Ndindabahizi, the former Minister of Finance of Rwanda (1994), was considered. According to the police, he personally gave orders to kill, distributed weapons to Hutu volunteers and was present during attacks and beatings. According to witnesses, he said: "Many Tutsi pass through here, why donʼt you kill them?", "Do you kill Tutsi women who are married to Hutu? […] Go and kill them. They can poison you."

and many others ended up on the dock. Special courts were also created in Iraq, where ex-president Saddam Hussein was sentenced to death. Since February 20, 2014, Ukraine has also been collecting evidence that the Russians are committing crimes against humanity, war crimes and the crime of genocide on our territory. And in February of this year, the prosecutor of the International Criminal Court (ICC) began to investigate them. The executive director of the International Bar Association, Mark Ellis, cooperated with the international tribunals on the issues of Yugoslavia and Rwanda, and initiated a program to support judges in Iraq. He also initiated the creation of the mobile application “eyeWitness to Atrocities”, thanks to which it is possible to store evidence of war crimes. "Babel" correspondent Oksana Kovalenko spoke with Ellis about how best to bring Russian President Vladimir Putin to justice, how to prove that he and his accomplices are committing international crimes, and what mistakes Ukraine should avoid.

You were part of the advisory group of defenders at the tribunals for Yugoslavia

The tribunal was created in 1993 to investigate crimes committed during the wars that occurred after the breakup of the former Yugoslavia. The tribunal worked for 25 years. It was located in The Hague. Among others, the president of Serbia, Slobodan Milosevic, was on the dock.

and Rwanda

The tribunal was established in 1995 to investigate international crimes committed in Rwanda by the interim government in 1994. After the military coup, the pro-government Hutu ethnic majority acted against representatives of the countryʼs ethnic minority, the Tutsi. The number of people killed in 100 days was probably about 800,000 people. The Rwandan tribunal was the first in the history of international tribunals to issue verdicts on genocide. It was also the first to identify rape as a means of committing genocide. The former prime minister and ministers of Rwanda received sentences.

, and you are an adviser in the group of the defender of the International Criminal Court. Is it realistic, in your opinion, for the ICC to issue arrest warrants for Putin and the ministers of defense and foreign affairs (Sergei Shoigu and Sergei Lavrov) while they are in power?

This is a very good question. The ICC has recognized its jurisdiction over Russiaʼs war against Ukraine and, accordingly, is investigating crimes committed there. Therefore, I donʼt even doubt that the court will bring charges against those who did this. The question is how high-ranking the people facing these charges will be. Here, I am sure, the ICC will be guided by the principle of team responsibility

It is a principle of law that affirms the responsibility of commanders for the war crimes of subordinates, because they either did not prevent the committing of these crimes or incited them.

— the responsibility of political or military high-ranking officials who control what is happening in the war in Ukraine. They knew or should have known that their subordinates were committing crimes and did nothing to stop it and punish the guilty. I think Putin will be indicted according to the concept of team responsibility.

Can an arrest warrant for Putin be issued while he is in power?

Putin is the head of the country. In any other situation, a third country cannot issue an arrest warrant for the president, because he has immunity. But the ICC does not recognize any immunities, so the prosecutor can seek an indictment and issue a warrant. We have already seen it in other cases: regarding Charles Taylor

Charles Taylor was the president of Liberia until June 2003. The Special Court for Sierra Leone was established in 2002. In March 2003, the court indicted Taylor, and already on June 4, issued an international arrest warrant. The president was accused of mass killings and torture of civilians in Sierra Leone, as well as hostage-taking, rape and sexual slavery. In October 2003, Taylor resigned and fled to Nigeria. In December, Interpol declared him an international wanted man. In 2006, under pressure, Nigeria decided to extradite Taylor to court. And on April 26, 2012, the Special Court for Sierra Leone found Taylor guilty of aiding and abetting war crimes and complicity in crimes against humanity and sentenced him to 50 years in prison. He is currently in prison in Great Britain.

, Slobodan Milosevic, Al-Bashir

President of Sudan from 1993 to 2019. In July 2008, the prosecutor of the International Criminal Court accused Al-Bashir of genocide, crimes against humanity and war crimes in Darfur. In 2003, there was an inter-ethnic conflict in this region, and the pro-government military was on one side. The ICC issued an arrest warrant for Al-Bashir in March 2009, charging him with war crimes, crimes against humanity, and in 2010, a separate arrest warrant was issued for the crime of genocide. In 2019, Al-Bashir was removed from power. In February 2020, the new Sudanese government agreed to extradite Al-Bashir to the ICC. However, he is still in Sudan.

. I believe that it will happen in this case as well. There is a large amount of evidence that Putin controls everything that happens in the war in Ukraine. He has to answer for it. Maybe it will take time, but Iʼm sure itʼs real.

Omar Hassan Ahmad al-Bashir, President of Sudan, listens to a speech during the opening of the 20th session of the New Partnership for Africaʼs Development in Addis Ababa, Ethiopia, January 31, 2009.

Wikimedia

The ICC does not hold hearings without the participation of the suspect. As long as Putin is in power, he is unlikely to end up on the dock. What are the options to get him to answer to the court?

If the court issues an arrest warrant and Putin decides to leave Russia, the country that recognizes the jurisdiction of the ICC must arrest him and hand him over to The Hague. But it is unlikely that Putin will decide to leave the country if there is an arrest warrant. So your scenario is to wait until he no longer has the protections like power and immunity he has now, and get him arrested.

But believe me, itʼs possible, and weʼve seen it with other presidents who have ended up in the dock. International law is a long game. You may not detain a person next month or year, but at the end of the day, international law works. Even the indictment against Putin will put a lot of pressure on him and his entourage.

Ukraine signed the Rome Statute

The International Criminal Court, which began operating in 2002, is based on the Rome Statute. This document defines the procedure of the court, as well as what crimes it considers. Ukraine signed the Rome Statute on January 20, 2000.

, but did not ratify it. Currently, the country has opposing positions on ratification. Some say that it should be ratified after the war. Others believe that doing so now could speed up the investigation. What do you think?

I have always been a supporter of countries becoming full members of the court

This allows the country to have its representative in the ICC, participate in the meeting of the Assembly of participating countries, which, in particular, can change the number of judges, approves the budget of the court. A participating country has the right to submit information about crimes to the court and ask the prosecutor to conduct an investigation and determine whether specific individuals should be charged (Article 14 of the Statute).

, so I would encourage Ukraine to ratify the statute. However, from a practical point of view, I donʼt know if it matters right now, because the court has already recognized its jurisdiction [over the war in Ukraine].

But the claim that refraining from ratifying the Charter will somehow protect the Ukrainian military from Russia or accountability if they have indeed committed crimes is wrong. Ratification will not change anything: the prosecutor already has jurisdiction on the territory of Ukraine

Ukraine recognized it in 2015.

and can investigate crimes committed by any party.

You have experience of working with tribunals that prosecuted war criminals in Yugoslavia, Cambodia, and Iraq. Which of the situations is similar to the one in Ukraine, and how exactly?

I think that something common can be found in the experience of the former Yugoslavia. I devoted a lot of time to this tribunal. In addition to it, national courts were held in the countries of the former Yugoslavia. This is similar to what is happening in Ukraine. I think the International Criminal Court wants the judicial system of Ukraine to consider international crimes committed by the Russian military, and it itself will deal with the top.

From your experience, what is important for Ukraine to do or what mistakes should be avoided?

When it comes to accountability at the level of national courts, the most important thing is not to rush the process. Due to haste, you will not be able to ensure the fairness and justice of the court. It is important for you not to lose trust. This, in my opinion, is the biggest risk. It is important for Ukraine to demonstrate to the whole world that all these trials meet international standards, and that those who were put on trial at the national level were tried honestly and fairly.

I know itʼs hard and many people think: why care about fair trials for those who have committed the most terrible crimes, about their rights? In terms of emotions, I understand that. But Ukraine must do so, must show that it values the rule of law and does not act like, for example, Russia itself. Ukraine must conduct all trials in accordance with international law. So that it doesnʼt happen like in Iraq. After its top [former governors] trials, the international community strongly criticized its decisions

The UN Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy, criticized the tribunal and its decisions, including those regarding the ex-president of Iraq, Saddam Hussein. He claimed that the court did not meet international standards, the rights of the accused and defendants to an independent investigation and independent trial, as well as the right to adequate protection, were violated.

. And distrust of the justice of the decisions of this tribunal has historically been attached to it. We donʼt want this to happen to Ukraine.

Have you followed the trials that have already taken place in Ukraine? What do you think about the verdicts?

I hope to visit one of these courts when I come to Ukraine. From what I have already learned, the courts were fair

As of the end of July, the prosecutorʼs office has reported about 130 suspicions, 11 cases have been sent to court, of which there have been verdicts in the courts of first instance in six cases, the other five are pending.

, but I think there is room for improvement, and the International Bar Association can help in this. We will focus on what is needed when dealing with international crimes in national courts.

What exactly needs to be improved?

I believe that everyone who is involved in the consideration of cases in national courts should understand what international crimes are, how the prosecutor should prove them, what the concepts of defense are, what the court should pay attention to. Everyone should understand that these are difficult matters, and this is not criticism, but advice. In my opinion, the fact that such trials are held during wartime makes them even more difficult. Therefore, it is necessary to deepen the knowledge of lawyers involved in these processes as much as possible.

More than 20,000 criminal proceedings regarding international crimes have already been registered in Ukraine, and the war is not over yet. Is it realistic to handle the investigation of so many cases?

In my opinion, during a war, it is impossible to consider such a large number of cases in the courts in such a way that the process meets international standards. But you can continue to collect the maximum amount of indisputable evidence.

Letʼs talk about genocide. What exactly is the evidence required to prove such a crime? How many people have to die for it to be considered genocide?

Genocide is a very specific crime. There must be intent — the intent to destroy a group of people, for example, on ethnic grounds. Historically, we are talking about big numbers, but there is no specific one. However, a person who has the intention to eliminate a certain ethnic group can be prosecuted for the crime of genocide. If we talk about Ukraine, in my opinion, there are more and more signs that the intention, according to Putin, is to completely destroy Ukrainians as a group. With every day of the war, when you listen to what they say in Russia about their goals in Ukraine, it becomes more and more clear. But letʼs see what the International Criminal Court will say — it must give the definition.

How important is it for the investigation to have as evidence of the crime a recording or testimony that the commander said verbatim: we are planning the genocide of this nation or we are planning to kill all the inhabitants of this village?

Extremely important. And often that direct evidence comes when a general or a high official says, "I want you to eliminate these people." But such proof is not always possible to obtain. Therefore, there are also others: what tactics criminals use in these territories, what they do to the civilian population. These can be various pieces of evidence that together prove that there is intent to commit genocide—that is, to destroy a group.

Forced deportation is an international crime. And at the International Tribunal for the former Yugoslavia, when examining the mass murders in Srebrenica, the court called the forced relocation of Bosniaks

Women and children were transported to other territories, and eight thousand men and boys were killed.

an element of genocide. Can mass deportation from Ukraine be considered in the same way?

Deportation can be part of genocide if there is such a specific intent. But when there are systematic attacks on the civilian population, including deportation, I am more inclined to believe that this is a crime against humanity. However, deportation can also be an element of genocide if other signs of it are present.

The occupiers are deporting people from Ukrainian territories to Russia.

Getty Images / «Babel'»

Ukrainian children are taken to Russia. Is this an element of genocide?

The facts of moving children can be another element when proving the crime in court, which is the intention to destroy an ethnic group. In my opinion, Russia is taking many actions in Ukraine that lead us to think that there is an intention to commit genocide. This can be seen from what Putin says about Ukraine and Ukrainians.

The crime of aggression is the easiest to prove. But the most difficult thing for Ukraine is to find a mechanism where and how it would be possible to bring Putin to justice for it. How do you think this can be done?

The crime of aggression violates the most important international principles laid down in the UN Charter and international law in general. It is very important that the guilty answer for it: both Russia as a state and specific people. If we are talking about bringing Putin to justice for the crime of aggression, I support that. It is important that these are efforts not only of Ukraine, but also of the international community.

There are several ways Ukraine can do this. You can create a separate international tribunal

Usually, the International Tribunal is created on the initiative of the UN Security Council. But since Russia is its permanent member and can dictate any decision, such a path is unacceptable for Ukraine. Alternatively, itʼs possible to pass a decision through the UN General Assembly, during which all UN member states will vote.

that would focus on the crime of aggression against Ukraine. Since Ukraine is on the European stage, we can also talk about joining forces with the Council of Europe or the European Union. Third: a group of allies of Ukraine could unite and create such a mechanism.

All these paths have their own challenges and difficulties, and will also take time. But I think that the creation of such a tribunal must necessarily have an international component.

It is difficult to create a separate international tribunal for the crime of aggression. In particular, this requires a decision of the UN Security Council, where Russia approves such a proposal. Is it possible to use the UN General Assembly for this and will Ukraine be able to gather the necessary number of votes?

The UN recommendation to create a tribunal

The UN can vote on the Recommendation on the establishment of a tribunal and sign an agreement between the government of Ukraine and the United Nations on the establishment of a tribunal on the crime of aggression.

is quite real. But we have to admit that there are UN member states that are not interested in creating a special tribunal for the crime of aggression. They donʼt want to set a precedent because they think they might end up in the same situation. They do not want such a court to be created against them later.

Would the US support such an idea?

I am not speaking on behalf of the United States. But I would say that there are countries, and the US is on the top list, that do not want a precedent.

Because of Iraq?

Including Iraq. The US has historically not supported such tribunals

The Treaty of Versailles at the end of the First World War provided for the trial of the former German emperor, Kaiser Wilhelm II. Among the states that signed the Treaty of Versailles, the USA, Hejaz and Ecuador later refused to ratify it. The US Senate rejected the treaty because it did not want to associate the country with participation in the work of the League of Nations, the charter of which was part of the treaty. In 1921, the US signed a separate treaty with Germany, almost identical to the Treaty of Versailles, but it did not contain articles on the League of Nations and Germanyʼs responsibility for the outbreak of war.

since the First World War. When Kaiser Wilhelm

Kaiser Wilhelm II was the German emperor. Together with other European monarchs, he contributed to the outbreak of the First World War. He abdicated as a result of the revolution of 1918, which overthrew the German monarchy.

was tried to be prosecuted

For initiating of the war

, the US did not support it because they did not want to set a precedent. I believe that the best chance for Ukraine is the opportunity to create a tribunal together with the EU or the Council of Europe. Or with a group of countries that will decide to help Ukraine and create it together. I think that a broad coalition to create a tribunal would be the best option.

But so far, not so many states support the idea, primarily Poland and the Baltic states — Lithuania, Latvia, and Estonia. That is, those who understand well what Russia is. And if such a tribunal is organized only by these countries, Russia can claim that it is unfair.

These are all strong arguments. That is why I think that I would not spend a lot of time on this, if it is possible to achieve responsibility through the ICC. I would focus on that. And would also support other mechanisms, such as national courts for the lower levels for the trials of the military. In addition, I would use universal jurisdiction

Universal jurisdiction means that other countries can investigate international crimes regardless of where they were committed and the nationality or country of residence of the victims or alleged perpetrators.
In some countries, universal jurisdiction takes a narrower approach: criminal prosecution in another country begins if an international crime is alleged to have been committed by a national of that country or a national of that country was the victim. Currently, about 150 countries of the world have introduced the mechanism of universal jurisdiction. For example, in January 2022, a German court issued a guilty verdict in a case against a former employee of the Syrian intelligence service for crimes against humanity.

, so that other countries also put pressure on those who have committed international crimes. All mechanisms used together are a very powerful method of bringing criminals to justice. And at the end, there may be a separate trial regarding aggression.

How to explain to the victims that they will have to wait 10-15 years for the highest officials whose decisions they suffered from to bear responsibility?

I think that international criminal law has advanced a lot in the last 20 years and there is an understanding that, given the vulnerability of the victims, justice cannot be delayed and investigations and trials can be conducted for ten years.

Victims of the Russian war in Mariupol.

Getty Images / «Babel'»

Unfortunately, rape is one of the worst and most common war crimes. Those who committed them should be brought to justice as soon as possible. These crimes are not part of the most vigilant focus of the ICC, like genocide or crimes against humanity, because rape is most often committed by ordinary military personnel. Such cases can be tried in local courts, and it will not take years. And the ICC receives cases about the role of generals, that is, command responsibility for such crimes. But if we are talking about the local courts, it is very important to collect all the evidence of sex crimes and to help and support the victims. And I will repeat again — it is important to hold fair trials in Ukraine for these crimes.

The International Bar Association has developed the eyeWitness to Atrocities application, photos and videos from which are accepted at the ICC. The Ukrainian prosecutorʼs office also recommended using it. How did you manage to make the evidence uploaded through the app suitable for the courts?

The idea to create such an application came to me seven or eight years ago. Then there was a war in another country. I was invited to television and asked if there were war crimes in the video we are seeing. I said yes, without a doubt. The next day, the government said the recording was a fake. Then I thought it was possible to create a program or an application that could ensure that people no longer question videos taken during a conflict. This is how the eyeWitness to Atrocities project was born. We went to the ICC, to the local courts. It was important to us that the court accepts these videos and that they can be used without the testimony of the people who filmed them, and that they do not have to be verified. Because according to the law, physical evidence must be stored and transferred according to a special system (chain of custody). That is, there should be information that this video was shot on a certain day, at a certain time and in a certain place. In our program, this information is stored together with photos and videos. And the main thing is that these videos or photos cannot be changed — you canʼt delete or add something to them. We will find out about it immediately. And from the point of view of security, we have also thought it through. If a person, for example, takes a photo in the occupied territory, sends it to our cloud — and suddenly someone stops him and asks him to show his phone, then he is protected. Because photos and videos are stored in parallel galleries and cannot be found so easily. In addition, a person can even delete these videos and photos after uploading them to our cloud.

Can Ukraine adopt some of the latest technologies used by the ICC?

The International Criminal Court has a special office that works with new technologies. For example, there are groups that study social media. In addition, the ICC uses aerial photography to investigate crimes against humanity or to assess destruction at a site where hostilities are ongoing.

At the ICC, you were part of the group of assistants of the Bar Council. Does this mean you can help protect Russian criminals?

No, I donʼt think so (laughs). Now I want to focus my efforts more on helping Ukraine. We want those who committed these heinous crimes to be brought to justice.

Translated from Ukrainian by Anton Semyzhenko.

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