President Joe Biden has agreed to hand over evidence related to Russiaʼs crimes in Ukraine. But only on request. Canʼt they be provided automatically?
We often get requests for help from the United Nations (UN) or International Criminal Court (ICC) investigations. This may involve information sharing or assistance with a witness or some sort of an oral briefing by one of our experts. Sometimes we are asked to provide information that we may not have at all, or the information may be extremely sensitive. Then we canʼt share it outside of the US government.
Has the ICC already sent any requests regarding Russian crimes in Ukraine?
That is the request from the prosecutor [Karim Khan] himself, and we donʼt publicly speak about any details of those requests. But we are communicating with the prosecutor, and we, of course, know that there are now two active arrest warrants. And we also understand that there are additional investigations underway.
The United States has a pretty long story with the International Criminal Court. Why did the US decide to change its attitude to the ICC and provide evidence of Russian crimes?
It is a product of was following a long discussion within our interagency under the executive branch, including the Department of Justice, the Department of State, and the Department of Defense. Historically, in the past, we have cooperated in many different ways with the ICC.
If we look at the general picture of what Russia is doing in Ukraine: destroys civilian objects, kills civilians, kidnaps children. The propaganda declares that there was no Ukraine at all as a state. Can we say that this entire picture has elements of genocide?
Itʼs very difficult to prove genocide because you need to have proof, essentially, that the perpetrators are acting with the intent to destroy a protected group, in whole or in part. But all of the elements that you have mentioned – the gratuitous violence, the rhetoric of de-Ukrainization, the Russification of children who have been deported from Ukraine into Russia and into Belarus – all of those are the types of evidence and the types of conduct that could be considered for genocide charges. And so Iʼm sure that prosecutors in Ukraine and elsewhere are looking very carefully at this evidence and determining whether or not theyʼre in a position to make a genocide case.
In the meantime, we know that the underlying conduct – attacking of civilians, sexual violence, the transfer of children – all these acts can also be prosecuted as war crimes and crimes against humanity, which are ultimately easier to prove. But it remains to be seen whether some of the prosecutors decide to pursue a genocide charge. And thatʼs the type of evidence they would be looking at is exactly the factors that you have outlined.
The US supports an internationalized tribunal for Ukraine, which will be a part of the Ukrainian judicial system, but with the involvement of international prosecutors. However, this is prohibited by our Constitution, which cannot be changed during martial law. So what can be done then?
Well, there are many ways in which this tribunal could be internationalized, in terms of bringing in international foreign expertise, expertise from the members of the Joint Investigation Team (JIT), for example, expertise from other supportive states. But there are still ways that the international community could support a specialized chamber within the Ukrainian judicial system.
We also have a very important interim step that has been established, which is the International Center for the Prosecution of Aggression (ICPA) in The Hague. I call it a proto-prosecutorial office that has brought together international prosecutors to investigate the crime of aggression. So already the investigation of this crime has been internationalized in The Hague, and the United States has deployed a very senior prosecutor to The Hague. The ICPA is doing its work, and the court, in the form of a specialized chamber, can start working when martial law in Ukraine is abolished. And, of course, we are all very willing to work with Ukrainian constitutional lawyers and the Ukrainian government to come up with solutions to enable this special chamber to be international, to have the support of the entire international community, but not run afoul of the existing constitutional limitations.
Will such an internationalized chamber be able to overcome the immunity of the Russian president?
It is true that domestic courts do not have the ability to overcome the head-of-state immunity. However, it seems extremely unlikely that Putin would be prosecuted while he is still a sitting head of state. And so, if he is in the custody of any court, a foreign court, the ICC, or this Ukrainian special chamber, it is likely because he is no longer the head of state. So this is not a reason to abandon the internationalized model.
So, that does not mean you could not open investigations against him, prepare an indictment against him and against others within the chain of command. Especially against the senior Ministry of Defense personnel who were planning and executing the war of aggression against Ukraine but do not have immunity.
If we talk about previous cases, the tribunals that tried the presidents of other countries were not based on the legislation of the victimized country. For example, courts in Yugoslavia or Sierra Leone were accomplished with UN Security Council resolutions. And if we talk about the internationalized courts for Kosovo or Cambodia, they did not have to prosecute the presidents of other countries. So does it make sense?
Well, the Yugoslavia tribunal, which prosecuted Slobodan Milošević, was created by the Security Council under the United Nations Charter. So that tribunal had the power to overcome any head of state immunity that Slobodan Milošević might have still enjoyed. In the case of Charles Taylor, he was no longer the head of state, and Liberia consented to his prosecution before the special court for Sierra Leone. And that tribunal was created primarily by the General Assembly, although it was encouraged by the Security Council. So itʼs not really a direct parallel to the situation here, where you might have Putin still enjoying head-of-state immunity being prosecuted by some kind of an international tribunal that doesnʼt exist at present. Itʼs not clear if the General Assembly alone has the power to create a tribunal that overcomes international law immunities that are enjoyed by sitting heads of state.
And if the General Assembly recommends the Secretary-General sign an agreement with Ukraine and thus establish a tribunal. Might this work?
Under the UN Charter system, it is only the Security Council that has the power to take coercive action. All the General Assembly can do is make recommendations. So it doesnʼt have the power to exercise any coercive power against Russia or Russian citizens. That is how the UN Charter has been drafted. That is the division of labor between the different UN organs. Unfortunately, as we all know, we are in a situation in which a permanent member of the Security Council [Russia] has engaged in a brutal war of aggression in blatant, manifest violation of the UN Charter. And this has revealed the difficulties.
Ukrainian officials recently stated that there is an idea to create an internationalized tribunal in one of the European countries based on their law. Сan such a tribunal overcome Putinʼs immunity?
Yes, itʼs a very intriguing idea. I think weʼre interested in learning more about the legal basis for this idea of transferring jurisdiction. But because the proceedings would still be going forward in an internationalized domestic court, I donʼt think it overcomes head-of-state immunity. It does, however, potentially eliminate the need to change the Ukrainian constitution at a time when martial law is in place. I think it remains to be seen whether or not thereʼs a European state who would be willing to accept jurisdiction. It may be necessary to do some work on the legal basis for this. But itʼs certainly a proposal that is worth looking at very carefully.
Do you think a tribunal that cannot overcome immunity is really worth any effort?
I do. Absolutely. There are so many other senior personnel within Russia who are responsible for planning and executing the war of aggression in Ukraine. All of those individuals who are in those senior leadership positions in a status to be able to direct acts of aggression committed by Russia. Those people should be held responsible for the crime of aggression and for any war crimes and other atrocities they commit. So a special chamber to focus on the aggression charges still makes sense.
Then you continue the investigation against President Putin and others who might enjoy head of state immunity while they remain in power and be prepared to move quickly if there is a political transformation within Russia and they no longer are in those positions.
Itʼs very unlikely that he is ever going to leave Russia in these circumstances except to go to places where he knows heʼs entirely safe. Weʼve seen this with respect to South Africa, where heʼs no longer coming to the BRICS meeting because he fears the possibility of arrest, given the obligations towards the Rome Statute and the International Criminal Court.
Do you believe he will lose his power in close time?
I canʼt speculate about that. I would hope that the Russian people will realize what a strategic disaster this war has been. Everything from the loss of Russian lives, boys, barely adults, being sent into war completely untrained and unprepared for this, the loss of status within the international community. Itʼs been a disaster for Russia, this war. The sanctions that have been placed on Russian assets. The trade impact that this war has had on goods and services that Russia would otherwise be able to export. Itʼs been a disaster for Russia, this war. And what has it accomplished? Nothing. It is hoped, of course, that this would be recognized by the Russian people. The concern is that they are fed a steady diet of propaganda, disinformation and donʼt have access to accurate information about how the war is actually going in Ukraine.
Youʼve already mentioned the work of the center, which gathers evidence of aggression. It is already working, although there is no tribunal yet. Will this tribunal be able to use this evidence as a basis for cases, or will it have to start all over again?
These various prosecutorial authorities are connected through the Joint Investigation Team, through the Eurojust Network, which is based in The Hague. The ICPA is actually sharing facilities with Eurojust. And the International Criminal Court prosecutor is also participating in the Joint Investigation Team. So information can be easily shared through the JIT mechanism. Thereʼs no need to go through any diplomatic channels, which would otherwise be required for using mutual legal assistance treaties. Itʼs a slower process. These Joint Investigation Teams enable investigators and prosecutors to speak directly with each other. And Eurojust is creating a repository of evidence that is available to any prosecutors that might be pursuing charges against individuals who stand accused of committing war crimes or other atrocities.
But should the tribunal still conduct its own investigation?
I donʼt know precisely the relationship between the ICPA and the new tribunal, whatever it looks like. One option would be that all of the information generated by the ICPA could be shared with the prosecutors that are appearing before the new chamber. And so some of those international tribunals, those international prosecutors could also assist with the prosecutions before the special chamber. All of this remains to be decided. Whatʼs important is that the ICPA is collecting, preserving, authenticating, analyzing all of the information being produced. They can prepare indictments, analytical memoranda, and the chain of command.
How long do you think it will take for the center to gather evidence and to understand whether there might be any indictment? And how long may it take to create a tribunal?
Those conversations are ongoing. When it comes to the tribunal, there will be another meeting of the core group, which Ukraine is convening next month. In terms of the collection of evidence by the ICPA, that is already happening. Thatʼs underway. The ICPA exists, and itʼs operational. So that is happening immediately, and itʼs a very important interim step while supportive states continue to work out some of these details of what the special tribunal itself would look like, whether itʼs an internationalized model in Ukraine, whether this new proposal is viable. But the important thing is that the investigations are happening now.
Why does the United States not support the idea of Ukraine in this special tribunal on aggression, which could be made through the General Assembly?
Well, we have two concerns with this proposal. The first is the legal question. . Does the General Assembly have the power under the UN Charter to establish a court that would exercise coercive powers against individual defendants? This has never been done. And under the charter system, the General Assembly is limited to making recommendations to states. Itʼs not clear it can create a coercive institution.
Thereʼs also the very practical concern of whether or not the votes exist within the General Assembly in order to establish this new, untested idea. And weʼve analyzed very carefully the votes in the General Assembly. And we see that when active measures are being taken, like kicking Russia off the Human Rights Council or establishing the Register of Damage, thereʼs a steep drop in the supportive votes. And those were very minor issues. Of course, Russia had to be removed from the Human Rights Council. Itʼs committing massive human rights abuses in areas under its control, right? And so that seemed to be uncontroversial. And yet it was not as strong a vote as we think it could have been.
And so, the worst case would be to create a resolution that either fails or has very weak support. Itʼs important for Ukraine to maintain the support of the international community. And there are states, I think, that are very wary of establishing a new big court thatʼs going to be costly. Because there is a question about how it will be financed. Will the UN be expected to fund it through assessed contributions? Thereʼs a high degree of skepticism, I think, amongst many states.
And so the internationalized tribunal could be created very quickly. There are very many ways in which the international community could contribute to this model in terms of personnel, information sharing, financial support, diplomatic support, technical assistance. All of that could be done now without having to wait for an uncertain vote at the General Assembly.
Do you think if we create an internationalized tribunal, will it be needed that the General Assembly support it? Will more votes be given for this than for the creation of an international tribunal?
I think if Ukraine were to create an internationalized tribunal, one way or the other, I think we could then go to the General Assembly and seek a resolution that encourages states to find ways to cooperate with this institution and that urges accountability for the war of aggression and all of the war crimes and other crimes against humanity.
I think you could get a General Assembly resolution that would bless this initiative and that would encourage cooperation much more easily than getting a resolution that would actually create the institution itself.
Will there be the same support if we create such a tribunal in another country, not in Ukraine?
Yes, I think the General Assembly could be very positive towards that and could encourage cooperation by members of the United Nations.
When you realize that Putin might not have the indictment or even he will not get a real sentence, itʼs a bit sad to hear.
I know. But listen, those of us in this field, weʼre all playing a long game and individuals like Slobodan Milošević or Augusto Pinochet never thought they would see the inside of a courtroom, and they ultimately did. So we have to maintain faith and continue working to preserve evidence for the future because you never know what will happen, and we need to be prepared for all of those potential contingencies. We have to believe that this will happen.