”There are more and more signs that the intention, according to Putin, is to completely destroy Ukrainians” – Executive director of the IBA Mark Ellis

2022-07-27

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, the Finance Minister of his government 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 and Rwanda, 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 — 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, Slobodan Milosevic, Al-Bashir. 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.

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, 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, 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 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. 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 , 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 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.

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 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 since the First World War. When Kaiser Wilhelm was tried to be prosecuted, 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, 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.

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.

What is eyeWitness to Atrocities?

eyeWitness to Atrocities is a mobile app that can be used to document crimes. It helps to capture photographic and video evidence that is accepted as evidence by the International Criminal Court and other courts. Photographs taken by eyeWitness to Atrocities have been used to expose the displacement of Palestinian communities, convict two warlords in the Democratic Republic of Congo, and document environmental crimes in the Gambia.

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.

Source: Babel

Author: Oksana Kovalenko

Editor: Tetyana Lohvynenko

Translated from Ukrainian by Anton Semyzhenko.

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