”Judge Putin according to Ukrainian laws, otherwise the process may drag on forever.” Former accuser of Slobodan Milosevic, British lawyer Geoffrey Nice — on a fair trial of the President of Russia

I will start with a strange question for a lawyer. Do you think there is justice when it comes to war crimes, crimes against humanity and genocide?

This is not a strange question at all. Probably most people ― those affected by bad acts such as the victims of bad things done by Russian soldiers ― have their own understanding of justice. Professionals — judges, lawyers, and politicians — need to pay more attention to what civilians think of justice and it would be good if citizensʼ ideas about justice matched what actually happens in the courts. Therefore, my answer is yes, an understanding of what justice concerning war crimes is ― does exist.

In your interviews, you say that as many court cases about war crimes committed by the Russian military as possible should be considered in Ukraine. But Russian President Vladimir Putin has immunity for international courts, he cannot be accused here. So it must be either the International Criminal Court or a special tribunal. Which of these options is better?

The special tribunal may well not ensure Putinʼs presence in court. And why are these options better? Does Putin necessarily have immunity from national courts just because he is the head of state? It is completely inappropriate, that somebody who has masterminded the invasion of your country and killed thousands of people should be free from accountability there. The Kaiser was not going to be free of liability after the World War I according to the Versailles Treaty and it would not have been an international tribunal like the ICC after the World War I but a special tribunal created bv the victors; just as happened after WWII. Slobodan Milosevic was a criminal and he didn’t have immunity from trial at the UN created international tribunal.

Head of State immunity has got to be reconsidered. Your country is your home. You have a duty in your home to investigate crimes committed there. So if Ukraine really can’t try Putin under domestic law and wants to set up a tribunal, set it up and run it in Ukraine by Ukrainians. Why do you want the foreigners to run it?

Letʼs imagine we have changed the law in Ukraine and now itʼs possible to bring Putin to a trial. But Putin still has an immunity in other countries. And if we run the trial by ourselves will the whole world recognize the results?

It matters what the Ukrainians think. A record needs to be left somehow of who is the villain of this war. Countries are divided and there is a significant percentage of people who think that your country is responsible. So you need a process. Listen to the evidence, make it quite clear Russia is a hundred percent to blame and Putin as a head of that country is a hundred percent to blame. You can possibly make a special trial for aggression but try him at home for crimes against humanity ― and do it quicker. Why not?

There is no precedent of such national trial over the president of the aggressor country in the world, is there?

Forget about it for the time being; it may not be that important! What do the citizens want by word “justice”? First, they would like to see the president of the aggressor country to be captured and hanged or shot. This is not going to happen. Second, they would like to see him in prison. This may not happen either. Third, they want an absolutely clear record of responsibility. You can say: ʼlet the international community deal with it’. But why? You already have the International Criminal Court doing its work as well. But the most important thing for any country is not to give up its control over its own territory.

But there is another problem: a person cannot be charged twice for the same crime. This is one of the main principles of criminal law on either national or international level. And we all live in the global world and talk about the rule of law.

I don’t think anybody would worry too much about that. A man who has committed thousands of deaths in an attempt to destroy your entire country… What do you think the Ukrainian citizens will think of that? Keep putting yourself on the position of citizens.

Rescue workers arrive at the scene of an explosion on October 10, 2022 in Kyiv, Ukraine. The morning blasts, which occurred shortly after 8 AM local time, were the biggest such attacks in the capital in recent months.

Getty Images / «Babel'»

Getty Images / «Babel'»

Getty Images / «Babel'»

If you must have an aggression tribunal ― construct it to function in Ukraine with Ukrainian lawyers in Ukrainian language. If Ukraine can, try him under Ukraine’s own laws. These things are so serious that Ukraine must not give in. . Remember: as soon as Ukraine gives responsibility to non-Ukraine lawyers, judges and staff, the process may last for ever. Ukraine cannot want this to happen like it happened in Bosnia. Bosnian Muslims were as blameless in the 1990s as Ukraine is now. They endured trials lasting 25 years. And still there are unresolved issues. Bosnia as a country is stuck, partly perhaps because there was never an early and definitive trial of the Bosnian Serb leaders and of Serbia itself. And now, after 25 years, in Bosnia you can meet people who don’t think that Serbs were wrong and committed crimes in Bosnia, partly because of what was allowed to be said on those over-long trials. The same may be with Ukraine. It has already started. If you look around or in opinion polls ― there is already a group of people who think that Ukraine is to blame for the war.

But still we cannot compare. If we talk about Ukraine, we talk about two independent countries and the situation when Russia invaded Ukraine. With Bosnia situation was different. I just can’t imagine that someone in Ukraine would doubt that Russia invaded it.

It’s not Ukraine’s people you want to persuade. You are the one who seems concerned about the international community. I saw yesterday a very worrying report of the opinion polls from all over the world with answers about who is responsible for the war. In Germany and Latvia, Poland and Georgia, everywhere else in America or England not everyone thinks Russia is to blame. Immediate public statement supported by evidence that can’t be challenged as to the Russian leadershipʼs accountability is what Ukraine needs. After the Second World War the Nuremberg Trial was run by the victors in the victors’ language ― in English, French, and Russian. They finished it in a year and those who were born after that, they never looked back and never doubted about what happened. The issue was closed in terms of moral responsibility. And for Ukraine that’s what I would wish.

The more people start using phrases like “sovereign immunity” or “head of state immunity” the more Ukraine may find itself yielding responsibility to international lawyers who, of course, love to take money from people for doing jobs that are complicated and long-lasting. Just imagine constructing a new international tribunal dealing with aggression, being established, funded, finding a courtroom, appointing judges – it’s a huge expense lasting not less than 5 years.

But there was International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda.

They are too expensive. Nobody would ever do them again.

In the International Criminal Court the trial starts in 10 years after the crime, as I could see. Why does it take so much time and for how long it has to last?

Surprising, isn’t it? Do you think if Mr. Karim Khan knows something that shows that president Putin may be not guilty he should have told that all about it so that we stop saying he is guilty. Or do you think he knows Putin is guilty and just taking his time? Or do you think it is really difficult?

I was always pressing for short trials. The tribunal shouldn’t use the English system of law. But most international courts use it, as well as the ICC. It was imposed as a system by the Americans, British and Australians. We don’t even know what system would work quicker. Many people think that maybe an inquiry would be a better approach.

You mean that the investigation should be done in the court?

Yes, by the judges much more. I shared two inquiries into China ― they were peoples’ tribunals. The allegations in each case included genocide and crimes against humanity. The hearings took place in London. The tribunal was composed of the people who didn’t get paid, each tribunal lasted less than a year, the cost of the last one was under 400 thousand euros ― just for flying witnesses and hiring hotels, nobody else got paid. Nobody has challenged the judgement. We applied the strictest test: “proof beyond the reasonable doubt”. In one case we found the crimes against humanity. In other case we found crimes against humanity and one form of genocide. In less than a year. I’m a lawyer but I’m not as interested in the law or lawyers as in citizens and victims and the evidence. We applied the law, again by the strictest test, just as juries do on trials around the world. We assessed witnesses with great care bit we did not assume they were not telling the truth. Why shouldn’t we believe somebody who appeared before the court saying: “I took this picture of my son being killed by the tank”? I can’t think of a really good reason.

You were prosecutor in ICTY and one of the indictments of Milosevic concerned genocide. Some lawyers say that there are signs of genocide committed by Russians in Ukraine. For example, Russian take out orphans to Russia, give them Russian citizenship and then Russian families adopt them. So that children lose their Ukrainian identity. This is organized by Putin: he signed the decree to make the process of granting Ukrainian children Russian citizenship easier. What kinds of evidence should it be to prove that this is a genocide?

This is very complicated. Since the genocide convention came to force in 1951, most countries avoided it, said nothing about it, didn’t want to touch it. It only started being considered in ICTY, ICTR and in the ICC. And in Cambodia. And then in a few national jurisdictions. But proof of the very particular state of mind in any alleged genocidaire is always very difficult and crimes that may be genocide will nearly always be crimes against humanity that is more straightforward to prove. And in any court if somebody like Putin is charged with genocide, and if you have trial that goes badly for the defendant, there will be a lengthy appeal lasting several more years additional to the original inevitably long trial

As other international lawyers say, the international law always takes long.

Not always. If you look at crimes against humanity or war crimes, they are straightforward. There may be appeal. But they are much simpler. I think that swift and certain justice by whatever mechanism is what you really want. I’m not proposing that you should have another peoples’ tribunal. But you can set up a trial. Zelensky could say: OK, Iʼll find some trustable Ukrainians, we’ll do the hearings, everything will be in public. Weʼll just decide if this is a genocide or crimes against humanity or war crimes. This will help Mr. Karim Khan [to speed up the ICC work after this]: they will get a judgement on all the evidence. What is really important is fixing early a decision on moral responsibility and criminal culpability that nobody will challenge.

You are saying Ukraine should do such trial over Putin by itself. But Russia mirrors our actions: they say that they are preparing their tribunal. How can we say that ours is fair and theirs is not?

The public will judge that. The world is as it is. It’s not like you want it to be. There is no single perfect international legal order. You got some pieces of it. In the International Court of Justice Ukraine is doing very well. And you journalists can keep going with the ICC, press Mr. Karim Khan to get on with it. Do whatever you like. But you may think you’d rather not wait until your grandchildren will grow up to find out whether it was aggression or not. This might be dangerous so don’t lose time. If Ukraine is afraid its judges may be corrupt, find some clean ones.

I’m not worried about the corrupt judges here. It is more about the recognition of the tribunal. For example, there was a Supreme Iraqi Criminal Tribunal. It organized the trial of Saddam Hussein and others. It was based on local law and was led by Iraqi judges. But in the end the international community said the trial wasnʼt fair.

The only one way is to have a fair trial fully in public. It can be run by Ukrainians or anybody else. If you have the international lawyers running something either in Ukraine or outside your country, what do you think the lawyers or judges are going to do if something needs a decision and that decision would affect their own country? Would the lawyer do what it is right to do for justice or will he or she serve the interests of the native country? Never easy to be sure which!

Do you believe that Putin will face the trial?

It is possible, as it happened in Serbia. It is possible that Putin might be handed over by Russia. If he is not handed over, next possibility is when the war stops the international community should leave all the sanctions against Russia in place until Putin is handed over to the court. That could work if there was real international determination to bring justice to the victims of Ukraine.

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