You were sure that nothing like this would ever happen in Europe after the end of the Yugoslavia Tribunal, and you were wrong. Why international order, law and numerous security organizations could not prevent this?
When I testified before the US Congress, I remarked that it was inconceivable to me that we would again face similar situations in Europe. I worked in the former Yugoslavia in the 1990s. It was a tumultuous time right after the fall of communism. In 30 years, Europe has become integrated, borders have disappeared, and the rule of law has flourished. So it seemed surreal that we could be dealing with a real war of aggression where one country tries to occupy the territory of another one.
I am not sure that this can be explained by the collapse of institutions. International institutions are only as strong as the countries that form them. Especially in the case of Russia, which plays a major role in the United Nations (UN) and is a permanent member of the UN Security Council. If such countries do not wish to comply with the standards of international law, the institutions cannot prevent this. If there is an authoritarian leader who seeks to conquer territory, then the responsibility lies with him and his country. And we have no other way to counter it than to use force. This is exactly what Ukraine did — it is forced to defend itself. And Europe and North America support Ukraine in its fight against this aggression.
Currently, the Prosecutor Generalʼs Office has more than 100 000 cases. Will Ukraine be able to deal with all of them? Do you believe that all the guilty will get real sentences?
Investigating crimes of this scale is a difficult task for any justice system anywhere in the world. This is a big load, and cases can duplicate each other. Sometimes itʼs about ordinary crimes which are not a violation of international humanitarian law. When the Office can take a step back and more thoroughly analyze all these cases, their number will decrease.
But there will still be a lot of work to do. Therefore, Ukraine will have to do what Croatia and Bosnia did — make difficult decisions about which proceedings to prioritize. For example, there are two situations: 1) Russian soldier killed five civilians; 2) another Russian soldier stole several bottles of vodka from a store. Both cases are crimes, but one of them is more serious. You will prioritize the first one. You wonʼt be able to chase all of them with limited resources. Many people will avoid responsibility. This is a sad reality, but the same thing was in other conflicts. For example, in the former Yugoslavia, where Serbian soldiers committed crimes in Bosnia or Croatia, and then returned to Serbia...
And they are heroes there.
Right, they are heroes there. And Serbia prohibits the extradition of its citizens. In addition, the Serbian government does not support their prosecution. So, unless there is a new government in Russia that is more oriented towards the rule of law, it is unlikely that a large number of people will appear in court in Ukraine. The Ukrainian justice system allows trials in absentia, but this means that the guilty will not end up in Ukrainian prisons.
Dmytro Vaga / "Babel"
Almost 30 years later, there are still courts working with these cases in Bosnia. How long can processes last in Ukraine?
We have two senior prosecutors in the Advisory Group: from Croatia and from Bosnia and Herzegovina. The prosecutor from Bosnia previously worked in an international organization, and the Croatian prosecutor, a week before coming to Ukraine last year, was still conducting a war crimes case in Croatia.
Recently, we organized a study visit of Ukrainian prosecutors and investigators to Croatia. They were taken to the place where the exhumation of a recently discovered mass burial (which is already 30 years old) is being carried out. Witnesses appear even after 20-30 years. So cases are still initiating now. Investigations are still ongoing regarding the Nazi guards of the camps during the Second World War — they were initiated even 50-60 years later. This is a long process. We discussed this with our Ukrainian colleagues: they should treat it as a marathon, not as a sprint. Taking into account the experience of Croatia and Bosnia, itʼs probably about tens of years.
What are the current problems of Ukrainian justice in the cases of war criminals?
Ukrainian prosecutors, investigators and judges are capable and professional. However, the scale of what they are dealing with would be a test for any system in the world, even for the USA, France, Great Britain or Germany.
Investigating these crimes is significantly different from how general crimes are investigated. For example, investigating a murder is usually simple. You have a victim and an identifiable perpetrator who pulled the trigger and shot the victim.
During an armed conflict, it is difficult to identify the perpetrator. Therefore, it is necessary to determine which military unit was in a certain place at a certain time, who was its commander, who potentially gave orders or was able to prevent crimes. It is difficult. And we are trying to help our Ukrainian colleagues in these matters.
There have been changes in Ukrainian legislation that could facilitate the conduct of such investigations. It would be worth ratifying the Rome Statute, which includes all elements of international criminal law.
You said that some Ukrainian officials are worried about the International Criminal Court, because it can open an investigation against Ukrainians too. Is it true?
I donʼt remember saying that. But in general, I see that Ukraine supports the investigation of the International Criminal Court (ICC). As in the case of the USA, there are people in Ukraine who are concerned about whether the ICC investigations will be directed against Ukrainians who have committed crimes against Russians. And there really is such a chance. The ICC must be impartial. My Ukrainian colleagues and I have talked about this many times, and they are attentive about the obligation to investigate all crimes equally. If a Ukrainian commits a crime against a Russian and it violates international humanitarian law or Ukrainian legislation, he must be prosecuted too. But it is important not to get into a situation of false equivalence. Even if there are crimes that Ukrainians have committed against Russians — given the context and scale — these are completely different things. Maybe some people are worried about it, and thatʼs understandable. In the United States, such worries led them not to sign the Rome Statute.
Dmytro Vaga / "Babel"
Genocide is one of the crimes currently being investigated by the Ukrainian prosecutorʼs office. If we follow the messages of the Russian state propaganda channels, they note that there is no such state as Ukraine. They kidnap Ukrainian children, give them Russian citizenship. Can we talk about the fact that Russia is committing genocide here? Do we have a chance to prove it in the ICC?
Such statements came from Moscow and from President Putin. Their goal is to minimize (or nullify) the status of Ukraine as a nation, and its citizens as an independent people. We should pay attention to this. In fact, this is evidence of what Russiaʼs intention was. And intention is a critically important element of the crime of genocide. Because it is necessary to prove the intention to completely (or partially) destroy a national, ethnic or religious group. But you also have to link it to action on the scenes. What is happening there? Do they kill people? Are the children taken to Russia? Are their [childrenʼs] Ukrainian identity erased and forcibly assimilated? You have to look at all these things together and determine if there are signs of genocide here. I think there are compelling reasons to believe that there are.
Some experts say that since genocide is difficult to prove, the focus should be on the fact that the Russians committed crimes against humanity here. These are related, but different things.
Crimes against humanity are easier to prove than genocide. In fact, the difference between them is not as sharp as it seems sometimes. Crimes against humanity are just as horrific. There is nothing in genocide that makes it worse than crimes against humanity. I think genocide is often associated with what happened during the Holocaust. Therefore sometimes there is a feeling that the suffering of the people who have become victims now must be equivalent to those crimes. But what happened during the Holocaust was also a crime against humanity.
You can prosecute people for the same actions, but using different legal mechanisms. This does not mean that we are now ruling out any of these possibilities, but it does not necessarily have to be a charge of genocide. At first you need to gather evidence. And based on the evidence, you have to decide which crime to charge. I emphasize, the collection of evidence continues.
In order to prove the fact of genocide, there must be intention. How can we get evidence of Putinʼs intention to commit genocide in Ukraine?
It is necessary to look at the statements made by the Russian leadership. Are these public statements? Are they the statements of others who may someday want to testify about what he said and what his intentions were? You have to look at the orders he may have given to the military, the Ministry of Defense, the security services. And it is also necessary to see whether it is possible to obtain documentary evidence, whether there are witnesses inside the organizations that are ready to cooperate in the future. You have to see how it was transformed into action, into politics on the scenes. Were people who committed crimes punished on the spot? Or were they supported on the contrary? This is similar to the analysis that was done in Nuremberg about the crimes of the Germans during the World War II. There they collected documents where the Nazis kept meticulous records of the orders they gave. They held meetings where they discussed the intentions of certain military operations or operations of the security services.
We did it in Yugoslavia. This was the case in Rwanda, where the genocide took place. The same work is currently being carried out in Ukraine. And you just have to put it all together. And then, based on the collected evidence, see if it is possible to prove that these individuals were involved in genocide, crimes against humanity or war crimes? Regardless of the crime, the standard is pretty much the same.
Dmytro Vaga / "Babel"
If we talk about the crime of aggression, the key person who started the war is the president of Russia. The immunity protects him from criminal prosecution. Due to this, what form of tribunal would be better for Ukraine? How to remove this immunity?
There is the "troika" immunity — the head of state, the head of government and the minister of foreign affairs. It does not allow Ukraine to prosecute them for these crimes. But there is no such immunity in international courts.
The International Tribunal for Yugoslavia did not have such restrictions, and the International Criminal Court does not have them either. However, at the same time, the ICC does not have jurisdiction over the crime of aggression in Ukraine. That is why they are looking for an alternative mechanism. Various options were discussed, including a fully internationalized tribunal — a hybrid court between Ukraine and the international community. All these options are worth exploring. There are difficulties with all of them. For example, a hybrid court is impossible under Ukrainian law: the Constitution prohibits international judges and prosecutors in the Ukrainian legal system. It is necessary to amend the Constitution, and this is impossible during martial law.
The option of an internationalized court faces political problems, as a favorable situation in the UN or in some regional organization is required. And this is a purely political challenge. But I donʼt think it makes much difference whether the court is fully international or hybrid. Both options will work in practice.
If there is a hybrid tribunal based on Ukrainian law, with Ukrainian and international judges, could we still have problems with Putinʼs immunity?
It is possible. But some hybrid courts have extended powers, it depends on in which way the court was created.
I have often talked about this with my Ukrainian colleagues, and I said the same in Congress: there are difficult challenges ahead, related to the creation of the court. Legal arguments aside, the most difficult part is the political process. The court, when it is created, is different from how it was first seen. Because these are constant negotiations, agreements, political compromises. The Tribunal for Yugoslavia, the Tribunal for Rwanda, Sierra Leone, Cambodia, the Special Tribunal for Lebanon — none of these tribunals turned out the way they were originally intended.
And therefore it is too early to talk about how it might end. The International Center for the Prosecution of the Crime of Aggression is a transitional stage. It is similar to the process I led in the European Union (EU) as a special prosecutor for Kosovo, which then led to the creation of the Special Court. Thatʼs why I talked with the General Prosecutorʼs Office, with the Ministry of Foreign Affairs about how we did it and how we were able to achieve this process with the help of the EU. But even there we got a completely different judicial structure than the one we thought about when we started the process.
But this trial was for Kosovo, and the accused were Kosovars, not citizens of other countries. And here we have to persecute the president of Russia.
Right. It is very difficult.
Now diplomats are discussing one of the ideas — to create an internationalized tribunal, but not in Ukraine. In another country, which would not based on Ukrainian legislation. Will such a tribunal be able to overcome Putinʼs immunity?
It is still premature to talk about it. I mean, you need to see what the legislation of other countries allows, what freedom of action is there.
A good idea is a politically achievable idea. So Iʼm not concerned with what will work better operationally. The main problem is to reach a political consensus and create a court. If there is such a political consensus, then almost any approach can be implemented.
Dmytro Vaga / "Babel"
That is, there is still no agreement between the countries on what the tribunal or special court should be for Russia?
There is strong support from a number of countries, including most EU countries and the US. But it is unclear to what extent UN member states will support it. If Ukraine wants to hold a vote in the UN General Assembly on the resolution [on the establishment of the tribunal], we do not know how many countries will support it and what it will take for them to agree.
For example, in the case of the Kosovo court, it was originally supposed to be an EU court based in Brussels or The Hague. But at the negotiations, Great Britain expressed concern about this concept. This was in the run-up to the Brexit vote, and I think the British government didnʼt want to give Brussels judicial power. So we had to try to find another solution that would satisfy Britain. After all, it was an internal Kosovo court, located in the Netherlands and staffed by international staff.
Why does the United States not support the special tribunal in the form in which Ukraine wants to set up it?
I think there are different views in the United States (both within the government and generally) about how best to set up a tribunal. The US agreed to a gradual approach, starting with the International Center for the Prosecution of Crimes of Aggression. And this is in many ways similar to the way we approached the Kosovo issue. At first, create a center to conduct a preliminary investigation, determine whether there is enough evidence, and proceed to a tribunal.
Everyone admits that in the situation with Ukraine, everything is a little bit different — there is already enough evidence for prosecution. I think it is too categorical to say that the US oppose this. However, one way or another, there is no clear consensus.
But Beth van Skaak said that the United States supports an internationalized, but not a special tribunal, which Ukraine is striving for. Some experts said it may be because the United States does not want to set a precedent because of the situations in Iraq or Afghanistan. Is it really so?
In the United States, there are certain institutions and individuals who are concerned about the widespread use of the crime of aggression. This also influenced the US policy regarding participation in the International Criminal Court. There are similar concerns in other countries. But the United States is particularly concerned about it because of previous humanitarian interventions and military operations, such as in Iraq.
But this is an evolutionary process. It should not be assumed that Ambassador van Skaakʼs statement is the final point in this matter. People in the United States government want to see how the International Center for the Investigation of the Crime of Aggression is progressing, what plans lay on the tapis. I think they will hold an open hearing on further plans. But it would be premature for me to try to guess what the final position of the US government will be.
Dmytro Vaga / "Babel"
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