Letʼs start with the UN International Court of Justice. There we prove that Russia manipulated when it explained the attack by the fact that Ukraine is committing genocide prohibited by the Convention. Until the end of September we had to submit our position on this — we submitted it on July 1. Now until March 2023 Russia has to submit its reply — we are waiting. What will happen if they donʼt submit or do not show up for the next hearing, as they did not show up for the first one?
Yes, they really did not come to the hearing on March 7. They also did not appear on March 8, accordingly, and there was no hearing. But, on the other hand, they communicate with the court, participate in online meetings with its president, and send work letters. Therefore, regardless of their conduct, the case is already there, and the court will hopefully find that it has jurisdiction over it.
In July, Latvia, Lithuania and New Zealand joined the case — they submitted declarations about intervention. What is this procedure?
The procedure is called intervention — intervention by third parties. When there is a convention — for example, on the prevention of and punishment for the crime of genocide — it applies to many states that have given their consent to it. In this case, other parties may enter the case. Thus, they emphasize the importance of the relevant proceedings and the fact that they support a certain side. Recently, 43 states and the European Union published a document supporting Ukraineʼs statement in this case and are considering the issue of interventions. Here are three countries that have already implemented them. The Ministry of Foreign Affairs is working so that there are more interventions and the international community acts as one front against the Russian Federation in this case.
Ukraine claims that Russia is actually committing genocide in our country. As I understand it, there are two ways to look at this. We can appeal to the International Court of the United Nations regarding the genocide of Russia as a country. Or the International Criminal Court (ICC) can investigate the crime of genocide, but here we are already talking about the responsibility of specific individuals. Which path is better for Ukraine to choose?
One of the answers to this could theoretically be another case in the UN International Court of Justice. After all, the UN International Court of Justice is about state responsibility. But remember, the Nuremberg Tribunal said in its verdict that crimes, particularly international and the most serious, are not committed by abstract entities — states, but by specific individuals. Genocide is a clearly defined crime, there must be a list of perpetrators and persons responsible for it. Therefore, I think it is much more promising to follow the track of individual criminal responsibility. These can be cases in the national courts of Ukraine, because we have Article 442 of the Criminal Code — "Genocide" — or via the ICC. International criminal courts and tribunals have experience in passing sentences for this particular crime. The International Criminal Tribunal for Rwanda was the first to do so. The sentence was received by the mayor of Taba city in Rwanda, Jean-Paul Akayesu — he is the first person convicted by an international tribunal for committing the crime of genocide.
If we are talking about the International Criminal Court and the specific crime of genocide, are we talking about the events in Bucha or throughout all of Ukraine?
I canʼt say right now because the investigation is ongoing. This is a matter for Ukrainian law enforcement officers. As an international lawyer who has worked in this field for a long time, I think it is logical to show the general policy of the Russian Federation to commit genocide. It begins with the call to commit genocide in the articles of the so-called Russian mass media. For example, "What should Russia do with Ukraine", "The new world is coming to Russia". All these terrible calls for the destruction of Ukrainian identity led, among other things, to the idea that Ukrainians do not exist, they all need Russia to get into their brains "and change their consciousness." This, in particular, led to what happened in Bucha, Irpin, and Gostomel. We donʼt know what is being done in Mariupol. But this is systemic policy. And it is this special intent to commit genocide, I think, that should be proven on the basis of such considerations. I would like to add that a very timely article by the Minister of Foreign Affairs of Ukraine, Dmytro Kuleba, was recently published in Der Spiegel about how Russia is committing genocide in Ukraine. It is very important to talk to our international partners about this.
What other elements of genocide can we name? For example, is the deportation of orphans to Russia an element of this?
Deportation of children is an element, yes. One of the components of the crime of genocide is the forced transfer of children from one group to another. So yes, it could be genocide. The killing of Ukrainians as a separate national group in case of proof of dolus specialis is genocide. The creation of living conditions aimed at complete or partial extermination, all this mockery of people, in fact, calls to commit genocide — this is already considered genocide. And now the work of our law enforcement officers is to show this special intention. The work is difficult, but very important.
Ukraine has not yet ratified the Rome Statute. I spoke with many international lawyers both from Ukraine and from other countries, including lawyers who work in The Hague, and they all say that this should be done. Then we will become participants of the ICC. So whatʼs the problem?
As an international lawyer, I am a longtime fan of the ICC and believe that ratification of the Rome Statute would be a good thing. But at the same time, even now, while itʼs not ratified, the International Criminal Court is already investigating Russiaʼs actions in Ukraine. After the investigation, it can issue an arrest warrant for three types of crimes: genocide, crimes against humanity, and war crimes. In fact, the ICC has everything to work effectively with regard to the situation in Ukraine.
However, the ratification of the Rome Statute would allow us, for example, to participate in the elections of the prosecutor, we could have our own judge, put issues on the agenda of the Assembly of the Participating States. Ratification of the Rome Statute would provide opportunities that currently donʼt exist.
Russians also commit crimes against humanity in Ukraine. But we cannot judge them for this here, because there are no crimes against humanity in the Ukrainian Criminal Code, so they are not crimes in our country. It turns out, the Russians will not be responsible for them?
In Ukraine, they are not responsible for accusations of crimes against humanity, but they can be responsible for these same acts as ordinary general criminal crimes.
But the ICC does not consider the cases of ordinary military personnel, only the top management. That is, the Russians who directly committed these crimes will escape punishment?
When we say that the ICC deals with big fish cases, itʼs not only the top management. It may well be the commanders of brigades, regiments, and other formations.
However, they cannot consider the case of an ordinary soldier who followed the orders?
In general, they donʼt have. But I donʼt know what line of behavior they will follow now.
Since there are currently no crimes against humanity in the Criminal Code of Ukraine, our court cannot try a person for them. It can try for war crimes — itʼs article 438 of the Criminal Code. For genocide — article 442. Or for general criminal ordinary crimes: intentional murder, sexual crimes, and all the rest.
Yes, but ordinary crimes, such as premeditated murder or rape, have statutes of limitations, and crimes against humanity do not.
Of course, I would like our Criminal Code to have an article on crimes against humanity. It must be entered. And also a provision is needed that this article can be applied to events that happened earlier, before the introduction of this article to the Criminal Code. After all, firstly, crimes against humanity exist in customary international law. And secondly, the legal system of Ukraine recognizes them, because Ukraine has ratified two conventions — of the UN and the Council of Europe — on the non-application of statutes of limitations to the most serious international crimes, in particular to crimes against humanity. Therefore, actually, if we include an article on crimes against humanity, then all questions disappear.
You have been dealing directly with the idea of a special tribunal for the crime of aggression almost from the beginning of the invasion. Previous historical experience was analyzed: international tribunals, special courts. Which of them is the most relevant for Ukraine?
There is no perfect reference. The closest ones are the Nuremberg and Tokyo military tribunals, because they were the only tribunals in the history of the 20th century and international criminal justice that tried people for crimes against peace — that was how the crime of aggression was called then. But we cannot say that we offer absolutely such a model for our tribunal. Because both Nuremberg and Tokyo also considered two other categories of international crimes: war crimes and crimes against humanity. In our case, as we are working now, the special tribunal will concern only one crime — aggression against Ukraine. The ICC considers the other three categories of international crimes (genocide, crimes against humanity, war crimes).
Is there progress in this case?
Yes, there is, of course. We are constantly in contact with our international partners, have held numerous meetings, conversations, expert discussions. We have good political support from the parliamentary assemblies of international organizations, in particular, these are two PACE resolutions, resolutions of the European Parliament, the NATO Parliamentary Assembly, the OSCE Parliamentary Assembly. This will help to move more concretely with regard to both the model of establishment of the tribunal and its establishment as such.
We have resolutions at the level of parliaments in the European Union and the Council of Europe. Does this mean that we can get consent to create a special tribunal either in the EU at the level of the European Commission, or in the Council of Europe at the level of their executive bodies?
Of course, decisions, if we are talking about international organizations, are made by executive bodies. In the case of the European Union, it is the European Commission, in the case of the Council of Europe, it is the Committee of Ministers. That is, these resolutions are a good background for ensuring further communication, in particular, on these issues.
Have there been precedents for the creation of such tribunals through these organizations?
At the level of the Council of Europe, there were no precedents for the creation of mechanisms of individual criminal responsibility. But the European Union had one. These are Kosovo Specialist Chambers — Special court chambers and specialized prosecutorʼs office for Kosovo. They were created on the basis of agreements with the European Commission.
But the Special Trial Chambers for Kosovo investigated crimes committed by Kosovars on the territory of Kosovo. And Russia commits crimes on our territory. Will this scenario work for us?
It might work. After all, here the issue is no longer in the subject jurisdiction of a particular court or tribunal, but in the model of its creation. In our case, we are talking about the creation of a hybrid judicial mechanism based on an agreement with the EU.
Is this a successful case?
As practice shows, yes. There they consider war crimes committed during the armed conflict. But not a crime of aggression.
In general, we are talking about the fact that there are two possible models for creating a special tribunal. This is a multilateral international agreement between Ukraine and a certain number of states or an agreement between Ukraine and an international organization.
That is, the UN can also be such an international organization with which you can sign an agreement, like the EU or the Council of Europe?
Yes. In this way, we talk about the UN as an organization and the possibility of an agreement with it.
At the July 14 conference in The Hague, Dmytro Kuleba called on international partners to consider the possibility of creating a special tribunal. How did other participating countries react to this?
This is a very important conference. And it is really very important that both the president and the minister of foreign affairs called for the creation of a special tribunal. Thus, international partners saw that this is not only a call of the expert environment, lawyers, but the position of the state and its leaders. I think our international partners have understood that this is one of the priority tracks for Ukraine.
Already during the conference, we heard positive feedback from Lithuania, Latvia, Estonia, and Romania. Their representatives said that they are ready to further discuss the issue of creating a special tribunal. It is important.
If the countries agree to a special tribunal against the leadership of Russia, does this mean an open "personal" confrontation?
Actually yes. And perhaps some people think that it is possible to bypass the creation of this mechanism, because it will be necessary to somehow negotiate with Russia and look for a common denominator.
The Minister of Foreign Affairs also announced five parameters that he proposes to form the basis of the special tribunal. Did your colleagues at the conference support them? Or perhaps some of these parameters made them wary?
5 parameters for the Special Tribunal:
Application of ICC rules and approaches set out in the Rome Statute.
The tribunalʼs jurisdiction will cover all events since February 2014, the beginning of Russiaʼs armed aggression against Ukraine.
It will have jurisdiction over individuals who exercise effective control over or directly direct the political or military actions of the state.
The official status of the defendant, such as the status of the head of state or the official status of another official, will not exempt him (or her) from individual criminal responsibility and will not mitigate the punishment.
It will consider only crimes of aggression against Ukraine and will be created as an international special ad hoc criminal tribunal to consider Russiaʼs armed aggression against Ukraine.
We discussed almost all of this with our international partners. The main thing is that the special tribunal should be based on the approaches of the International Criminal Court. Because the special tribunal will not be an alternative to it, but will complement it. Therefore, we accept the understanding of the crime of aggression as set out in Article 8 bis of the Rome Statute of the ICC. I think that there should be agreement on all points, the voiced parameters are absolutely logical.
One of the issues that may arise is temporal jurisdiction. The crime of aggression in Ukraine is ongoing, it began at the end of February 2014 and continues to this day. It is important for us. And it is precisely such a temporal jurisdiction, I think, that we will defend.
And for the crime of aggression, we hope to bring the president, prime minister, and defense minister of Russia to justice. Who else?
It can also be the minister of foreign affairs, the commanders of the armed forces, the national guard, and the military branches of the Russian Federation. But specific decisions on this will certainly be made by the tribunal.
What legislation will be used by the special tribunal?
The crime of aggression should be understood as it is written in Article 8 bis of the Rome Statute of the International Criminal Court. If the jurisdiction is transferred to the tribunal from Ukraine, we now have Article 437 of the Criminal Code "Planning, preparation, initiation and waging of an aggressive war." It is too broad and allows any person to be tried for the crime of aggression, not just the leadership, as provided for in Article 8 bis of the Rome Statute. But we can give the tribunal narrower jurisdiction than the provisions of Article 437 of the Criminal Code. For example, only in relation to the leadership, persons who could manage the political and military actions of the state, and then it would correspond to the leadership crime approach.
That is, according to the article on the definition of aggression, according to our Criminal Code, a corporal can also be tried in our country?
A corporal, and a junior lieutenant, and a sergeant. Accordingly, we can give the future special tribunal jurisdiction only over the political and military leadership, and then it will correspond to the leadership crime approach.
Putin can be put on the dock, most likely, only after the regime falls. How realistic is the chance that this will happen?
For this to happen, many factors must come together. But I think that preparing an indictment or an arrest warrant is already a very big step on the way to justice and fairness. Because it means that you are not a "collector of lands [for your country]". You are a criminal standing next to the criminals of World War II. This is your place in history, not what you imagine in your whimsical thoughts. But it will certainly be possible to detain him either when Russia itself hands him over, or when he visits countries that recognize the tribunalʼs jurisdiction.
And without the participation of the suspect, tribunals do not like to consider such issues...
Currently, international criminal tribunals do not work with proceedings in absentia. I think we will consult, negotiate with international partners and choose the model that the majority will agree to. But it must be understood that most international criminal tribunals do not work in absentia.
Then it turns out that Putin with this arrest warrant can sit in his bunker in Russia, communicate with North Korea and live normally, and all of Russia will live like the Soviet Union lived for 75 years — with the iron curtain closed?
You see, you have to have indictments and arrest warrants. Iʼm sure this is a very important thing. It can also give domestic political results in the Russian Federation. That is why all this should be done, I am convinced. As for the fate of a specific person: of course, now we cannot predict how it will be.
Is it even possible that they will not bear responsibility?
We must do everything to make them accountable. This is what we have to do as Ukrainian lawyers working for this purpose. We have the political will for it. It is necessary for our partners to have it as well.
The Russians are beginning to "mirror" Ukraineʼs actions. For example, the other day the head of the investigative committee of the Russian Federation threatened Ukraine with a tribunal, which he is going to process also with "international organizations", but in fact organizations controlled by the Russian Federation (CIS, CSTO, BRICS, SCO). What could this mean for us?
The Russians are worried about the initiative of the special tribunal, they understand what it can lead to. And we will work for its implementation. Regarding their "initiatives", it is not worth commenting on them, because they are aimed at the domestic consumer. We are talking about the creation of a special tribunal for the crime of aggression against Ukraine. There is an ICC to investigate genocide, crimes against humanity, and war crimes. Russian "initiatives" have no place in this system.
The Russian Supreme Court recognized Azov Regiment as a terrorist organization. If Russia does not want to apply the Geneva Convention to the fighters, what could this mean for it? Will such actions have consequences in international law for Russia?
Apparently, the Supreme Court of the Russian Federation recognized Azov as a terrorist organization in order to form arguments not to apply to the soldiers the provisions of the Geneva Convention on the treatment of prisoners of war and to deny them this status. This, in fact, is what the Russian Embassy in Great Britain published in its tweet. He said, "Azovians" are not "real soldiers" and "deserve the death penalty by hanging." Now, probably, the aggressor state wants to "move this into the legal frame." And taking into account how the Russian Federation behaves in Crimea, in particular with regard to the Mejlis (Parliament) of the Crimean Tatar people, it seems that the recognition of the organization as a terrorist one is also aimed at bringing to "responsibility" any person directly or indirectly connected with its activities.
But any such decisions of the detaining state do not affect their status and the application of the convention to them. They are also irrelevant for international law and do not affect the qualification of events and the determination of the status of persons under international humanitarian law. Azov fighters are combatants during hostilities and prisoners of war after being captured. The III Geneva Convention applies to them, because they are officially military personnel of the National Guard of Ukraine.
Translated from Ukrainian by Anton Semyzhenko.
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