The war that Russia is waging against Ukraine is Europe’s biggest since 1945. Having failed to achieve its goal of occupying Ukraine’s entire territory, the Kremlin nevertheless carries on and Putin’s generals continue to give orders aiming to exterminate Ukrainians. Russian forces, losing ground on the battlefield, continue to shell Ukrainian cities and villages, killing civilians and destroying infrastructure.
Ukraine’s President Volodymyr Zelensky intends to hold the Russian political leadership accountable for this crime of aggression. He has set up an ad hoc group of experts who are to work out legal mechanisms for establishing a special international tribunal. To find out what has been done in this direction, Kyiv Post approached Anton Korynevych, the Foreign Ministry’s special envoy and a member of the ad hoc group, with questions about the group’s progress, a tentative date of the tribunal’s establishment, and the possibility of convicting Putin.
Kyiv Post: What are the main problems with establishing the Special International Tribunal (SIT)? How much work has been done?
Korynevych: I wouldn’t say there are problems. I would say that the establishment of such a separate body as the Special International Tribunal on the Crime of Aggression against Ukraine is, conceptually, a very serious task that certainly takes a lot of active work on the Ukrainian side and the political will of our international partners to participate. This work is in progress.
I wouldn’t like to talk about problems. Of course, there are certain things that we have to explain to our international partners, but that’s quite normal for this working process. For example, we have to explain that the International Criminal Court (ICC) alone cannot ensure full and adequate punishment for the crimes committed in Ukraine since the crime of aggression against Ukraine is not and cannot be under its jurisdiction. And that’s why we propose to establish this Special Tribunal as a legal mechanism to complement the ICC in the context of liability for the crime of aggression against our country.
Kyiv Post: What is the difference between the SIT and the ICC?
Korynevych: The ICC is a permanent body of international criminal justice. Since its jurisdiction is recognized by Ukraine, the ICC Office of the Prosecutor is probing for investigation into possible international crimes that fall under three categories: crimes of genocide, crimes against humanity, and war crimes. There is one more crime under the jurisdiction of the ICC, but the ICC doesn’t and cannot have the jurisdiction over this type of crime in Ukraine. It’s the crime of aggression.
For the ICC to have the jurisdiction over the crime of aggression there has to be at least one of two prerequisites: the ratification of the Rome Statute and the Kampala amendments concerning the crime of aggression, or a UN resolution recognizing the act of aggression submitted to the ICC for consideration.
In these cases, the ICC can have the jurisdiction over the crime of aggression. We all understand that the Russian Federation will not ratify the Rome Statute in the foreseeable future and would veto the UN resolution, so we propose that this specific crime of aggression against Ukraine be investigated by the SIT.
This way it’s easier to get to those who have given and are giving orders to wage this aggressive war. This would be a faster and more effective way to prosecute the Russian political and military leadership.
Kyiv Post: Does Ukraine plan to ratify the Rome Statute any time soon?
Korynevych: This question is for the relevant decision-makers. Personally, I am for the ratification.
Kyiv Post: If Ukraine doesn’t ratify the Rome Statute, could that affect the Tribunal’s work?
Korynevych: I don’t think so. I think those who work in the ICC are clearly aware of the importance of their adequate response to the situation in Ukraine and the horrible crimes committed by the Russian military. The SIT, for its part, would be a separate international judicial body – independent of the ICC.
Kyiv Post: Could you please name the countries that have concluded the international agreement on the recognition of the Tribunal’s decisions?
Korynevych: No one has signed the agreement yet. It will be signed when the whole pool of interested states is known. There are states that support this initiative and are ready to cooperate. We don’t name them publicly because this is a sensitive issue.
Of course, the agreement will remain open to signing after a certain number of states ratify it. We are working on all these issues.
Kyiv Post: Could you disclose at least the number of these countries?
Korynevych: This is a sensitive issue and we are not discussing it publicly.
Kyiv Post: Are they not only European countries?
Korynevych: Let me say this idea is supported by countries in the Euro-Atlantic space. But we don’t set regional limits. We are ready to work with all countries.
Kyiv Post: How many signatory states does it take to make the Tribunal legitimate?
Korynevych: There is no such requirement.
Kyiv Post: If, for instance, China refuses to sign, could that affect the process?
Korynevych: I don’t see a problem here.
Kyiv Post: How long could it take to establish the Tribunal? Or do we have to wait until the war ends?
Korynevych: I’m sure we don’t need to wait until the war ends. Actually, we’re already working. We’ve been working since late February together with the Foreign Ministry, the President’s Office, and the best international legal experts who support this idea.
How long it takes depends on our partners’ political will. We are ready to start establishing it tomorrow. We have the relevant normative acts drafted and we are ready to move further. We can’t let the crime of aggression against Ukraine go unpunished.
Kyiv Post: Who are the international legal experts helping Ukraine establish the SIT?
Korynevych: We have a strong informal working group that includes leading international law experts from Great Britain, the United States, Australia, Germany and other countries. I’d mention two of the best-known experts. One is Philippe Sands, whose book East West Street: On the Origins of Crimes of Genocide and Crimes Against Humanity is well known in Ukraine. This British expert was the first to offer the idea of an international tribunal and he is helping us a lot. The other is Dapo Akande, a Professor of Public International Law at Oxford. He is one of the leading international law experts of modern times. We really have good support from the best representatives of the academic community in international law.
Kyiv Post: How did you get to draw them? Or did they offer their services?
Korynevych: You see, the idea of establishing the SIT came from Kyiv and London at the same time. In fact, no one offered anything. We just joined our efforts and it’s working. And we’re grateful to our academic colleagues.
Kyiv Post: Regarding future verdicts and sentences, what terms can we expect for the Russians to be found guilty of this war?
Korynevych: We regard our Special Tribunal as a complementary body to the ICC. We believe that it needs to be based on the principles, norms and approaches of the ICC, so the system of punishment set in the Rome Statute is absolutely adequate. It’s where the judges sentence the guilty to prison terms of up to 30 years or life imprisonment.
Kyiv Post: Who will stand trial – Russian generals, propagandists, top officials?
Korynevych: This tribunal will not deal with war crimes committed by Russian military individuals, because they are dealt with by Ukrainian courts and the ICC.
This tribunal will punish individuals for the crime of aggression against Ukraine, namely those who gave orders to start and continue this aggressive war. These are the top Russian political and military leaders.
Kyiv Post: Does it mean that Putin’s arrest is possible?
Korynevych: Why not? But it’s up to the tribunal to decide. Yes, this individual may really be involved in the crime of aggression against Ukraine by personally giving such orders.
Kyiv Post: Do suspects have to be tried in person?
Korynevych: I’m sure we can formulate the proper in-absentia procedure.
Kyiv Post: Supposing the SIT passes a life sentence on Putin. How would it be possible to put him behind bars? Russia would hardly extradite him.
Korynevych: We need to decide through negotiations and consultations on the in-absentia procedure, whether the defendant must necessarily be tried in person. Traditionally, most international courts and tribunals demand that defendants be present in the courtroom. We need to see if this requirement would have to be set. We’ll discuss it with our international partners.
Either way, I’m sure that the very fact of indictment of the top Russian political-military leadership and the issuance of arrest warrants would be a big step forward. Those individuals would be locked up inside Russian jurisdiction. They would be non-handshakable in the international community, they wouldn’t be able to freely travel abroad. The SIT would name them international criminals in legal, not political terms.
Kyiv Post: How long could it take?
Korynevych: The indictment could be prepared in several months.
Kyiv Post: Where would the convicted serve their terms?
Korynevych: International tribunals don’t have prisons. They have agreements with governments on using their penitentiary facilities. This issue will be addressed after the tribunal is established.
Kyiv Post: So if a state doesn’t sign the SIT agreement, it’s not obliged to arrest or extradite suspects?
Korynevych: They won’t be legally bound, but I think we can work out various mechanisms through which such states would detain suspects if they don’t sign but publicly support the SIT agreement.
Kyiv Post: Who could be the prosecutors and judges in the Tribunal? Would Ukrainians be among them?
Korynevych: I think we need to formulate the mechanism for selecting judges. They should have relevant work experience in international tribunals. Prosecutors should also be independent and experienced. I’m sure there should be Ukrainian prosecutors for complete understanding of the context, but the more international this tribunal’s composition the better for legitimacy.
Kyiv Post: Are there guarantees that Russia won’t put its judges or prosecutors into these seats?
Korynevych: I wouldn’t be so concerned about that. In the draft SIT statutory documents we offer an absolutely adequate mechanism for selecting judges and prosecutors. I don’t see any threats in this context.
Kyiv Post: Who would pay the SIT staff?
Korynevych: Very importantly, the budget isn’t going to be big. This compact judicial mechanism will be handling one single crime, so it won’t need a lot of staff, infrastructure, and logistics.
The source of funding depends on how the Tribunal will be established – whether through Ukraine’s multilateral agreement with a certain number of countries, or through Ukraine’s agreement with the UN, or through Ukraine’s agreement with a European regional organization.
Kyiv Post: What could prevent the Tribunal from being established?
Korynevych: There will be no tribunal if our international partners don’t want to establish it, because Ukraine alone can’t establish it. But we are working to prevent such a situation.
Kyiv Post: Defense Minister Oleksiy Reznikov suggested that the tribunal take place in Kharkiv, the city the Russians keep shelling every day, having failed to take it. Is that possible?
Korynevych: I believe that this tribunal should take place outside of Ukraine since this country is the victim of aggression. This tribunal should really be international, so it should take place abroad. But that’s not a hot-button issue for now.
