20 April 2022
by Irina Tumakova, special to Novaya Gazeta. Europe
An interview with international lawyer Sergei Golubok on who faces retribution for war crimes in Ukraine and when
Source: Novaya gazeta. Europe
On 16 March, the UN International Court of Justice demanded that Russia halt its military actions on the territory of Ukraine. Ukrainian officials and international organisations, working in parallel, are gathering evidence of war crimes for the International Criminal Court. Irina Tumakova spoke with Sergei Golubok, a specialist in international law, about who will answer for the murders of Ukrainian civilians, and when.
– Ukraine has made an application to the UN International Court of Justice in the Hague in respect of Russian aggression. Simultaneously, an investigation has begun in the International Criminal Court, also located in the Hague. Why are two courts investigating what is essentially one case?
– Ukraine’s application was connected not with Russia’s aggression itself but with the fact that Russia at the head of state level has charged Ukraine with genocide. This charge was used to justify Russia’s aggression. So Ukraine is asking where the proof of genocide is. What genocide?
This is an intergovernmental dispute, and questions of the responsibility of states are examined in the UN International Court of Justice. The International Criminal Court (ICC) addresses the individual responsibility of specific physical persons, people who, unlike states, can be put in prison.
For a state to apply to the UN International Court of Justice, it requires the consent of the respondent state to an examination of the case in that court. This consent may be expressed in the form of participation in an international agreement, for example. There is also the Convention on the Prevention and Punishment of the Crime of Genocide, concluded in 1948, to which the whole world is party, including Russia and Ukraine. As you see, the Convention has not lost its relevance, unfortunately. So Ukraine has taken its questions about genocide to the court. If the accusations of genocide are unfounded, it would follow that the use of armed force is likewise unfounded. Ukraine has also asked for an injunction in the form of a ban on Russia carrying out military actions.
– So: let’s first figure out whether there are grounds for sending in troops, and until we’ve figured that out, please withdraw them?
– Pretty much. And on 16 March, the court accepted Ukraine’s petition. Put simply, it ordered Russia to halt the war immediately.
– And since 16 March we’ve observed Russia carrying out the court’s decision.
– Right now I’m only talking about what the decision of the UN International Court means.
– And what next, if Russia just ignores the decision?
– There have been instances of injunctions issued by this court being ignored. In 1992, for example, when the state of Serbia and Montenegro (then still called Yugoslavia) was involved in a dispute with Bosnia and Herzegovina, the court issued such an injunction. And in 1995, at the end of the war in Bosnia and Herzegovina, the international community set up the Tribunal on the Former Yugoslavia. In time, a number of people, including Ratko Mladić and Radovan Karadžić, whom you know, were charged. The trials against them ended not long ago, and I was there, and I saw how Mladić behaved in the dock. Slobodan Milošević was indicted, and died in custody in the Hague. In 1992, though, when the war had only just begun, the International Court issued an injunction. It, too, was ignored, but you see how it all turned out. True, that took nearly three decades.
– Did the unimplemented 1992 decision play a role in the ultimate conviction of those guilty of war crimes?
– Of course. As did a great many other factors, both legal and political, and perhaps even coincidental.
– A second examination is under way in the International Criminal Court.
– Yes but it was not Ukraine who lodged that application. The Prosecutor of the International Criminal Court opened an investigation into “crimes already committed and being committed in Ukraine, at the request of 40 states party to the Rome Statute” (the international treaty establishing the ICC, concluded in Rome in 1998, — I.T.). They are demanding an investigation into crimes committed in Ukraine since 2014 that fall under the court’s jurisdiction.
– Why didn’t Ukraine itself make the application?
– Because Ukraine is not a party to the Rome Statute. There are problems with ratifying the treaty in Ukraine connected with its Constitution, but that’s a separate issue. At the same time, Ukraine has recognised ICC jurisdiction with respect to all crimes already committed or being committed on its territory. There are three categories: war crimes, crimes against humanity, and genocide.
– Russia hasn’t ratified the Rome Statute either, come to that.
– True, but it did sign it in September 2000. We even know the name of the man who gave orders for the signature to be affixed.
– Surely not Putin?
– Yes, and all these documents are in the legal databases. This is important from the standpoint of international law because, according to the Vienna Convention on the Law of International Treaties, a state that has not ratified a document but has signed it must nonetheless refrain from actions that undermine the treaty’s subject matter and goal.
– But then Russia withdrew its signature. Talking of which, the United States has done the same.
– International law does not provide for a mechanism by which a signature can be withdrawn from an international treaty. It was the United States that came up with this idea when they wanted to withdraw their signature following a change in the administration.
Russia decided that it was no worse than the US, and withdrew too. But in terms of international law, they are still considered signatories.
Ukraine has not ratified the statute, but it recognises the competence of the ICC and cooperates with the court; a state can do this without having to be a participant. And the US has cooperated with the ICC on certain issues. Russia, too, has cooperated in the past. In 2010, the court began a preliminary review of the situation in Georgia, and an ICC delegation met with a delegation of officials in Moscow that went almost as high up as the Prosecutor General. Moreover, the ICC has repeatedly proposed that the Russian authorities participate, for example, in the provision of evidence.
– So if Russia claims that genocide is taking place in Ukraine, it’s ready to prove it, right?
– The ICC Prosecutor has repeatedly sent notes to the Russian authorities with a proposal to hold meetings, but has not received a response. Russia has not cooperated.
– If we draw an analogy with the domestic criminal process within Russia, then it’s like a case initiated not in relation to particular individuals, but to determine if there has been a crime? After all, there are still no specific individuals accused of war crimes, are there?
– That’s a perfectly fair analogy, but we are not just talking about war crimes. Right now everyone is using these words in a manner that suggests they apply to all crimes committed during the course of a war, but that is not the case. I have already identified three categories: war crimes, crimes against humanity and genocide. These are different things, each with dozens of different aspects, and a lot depends on the context.
For example, it’s the context that differentiates crimes against humanity from simple mass killings: a crime against humanity presupposes a large-scale and systematic attack against a civilian population. Judging by what happened in Bucha and other Ukrainian cities, this is precisely what we see there. This is a rather specific issue; it requires the study of a large array of evidence relating not only to the objective side of the evidence, but also to the subjective side – the attitude of those potentially accused.
Simply put, neither a war crime nor a crime against humanity can be committed through negligence: there must be intent.
Genocide generally requires specific intent: the destruction of a religious, ethnic, national or racial group is the aim. This is what distinguishes genocide from other crimes against humanity. Herein lies the distinction of whether or not it is genocide.
– What exactly should the ICC prosecutor investigate in order to establish whether there was intent to destroy civilian infrastructure and kill people in Ukraine, or whether it was just an accident that they bombed a maternity hospital?
– The prosecutor does not need to classify actions in this way; the court will give them a legal assessment. It is more important for the prosecutor to focus on specific episodes where, firstly, there is evidence of damage, and secondly, evidence that can lead to specific persons being accused. When the accused do eventually appear, it will be possible to investigate the question of intent.
— But in order to prove intent and such like, don’t you first have to find and name the accused?
— As you yourself said, the case is currently being investigated ‘to determine if there has been a crime’. However, specific cases ‘in relation to particular individuals’ will emerge from that. The prosecutor will then apply to the court for arrest warrants, and will present evidence: there are grounds for believing that such-and-such named individuals have committed crimes. Speaking of which, warrants might have already been issued; we don’t know―the court is not obliged to publish them. I’m not saying they have been issued, but I’ve no basis for saying they haven’t. The whole point of an arrest warrant is that it’s published when the accused is identified and transferred to The Hague.
Having said that, there are precedents of the Prosecutor making an arrest warrant public, such as in the case of the former Sudanese President Omar al-Bashir, who was accused of a string of crimes in the western province of Darfur in the early 2000s. Usually, though, we find out about the warrant only when the person has already arrived in The Hague in one capacity or another. This is often decades after the warrant has been issued.
— Which organs of the ICC conduct the preliminary examination?
— The court consists of three organs; they are independent of one another, and are located in three different buildings in The Hague. One is the Office of the Prosecutor (‘OTP’). The Prosecutor is elected by the Assembly of States Parties to the Rome Statute. The Prosecutor is in charge of investigating and supporting the indictment. Then we have the Judicial Divisions, and the third is the Registry, which has its own mandate.
— Does the OTP have its own operational or expert units? Or are the relevant people engaged in the country in which the investigation is being conducted?
— The OTP has its own staff, but it can also call on external organs. For example, in conducting its investigation into the situation in Ukraine, the OTP has publicly called on the participating states to send experts. The main point here is that in carrying out its investigations, the OTP relies on the support of the states in the form of their cooperation with the Court. This is precisely why attempts have been made to establish contacts with Russia: to find out what evidence there is on the Russian side.
I assume that in this situation the OTP’s main source of information will be Ukrainian investigators. The most important source of evidence will be the victims, who are now scattered across practically every country in Europe. Pages have already been created for them in Ukrainian and Russian on the Court’s website, with an invitation to fill out a special electronic form. Another important channel for obtaining information is the mass media. Including in Russia.
— Russia Today, for example. Or RIA Novosti.
— This is a really important source. When you’re talking about subjective aspects of the corpus delicti, publications in the Russian media can often serve as evidence.
— Evidence of what? Intent?
— There are precedents. For example, in the conduct of the International Criminal Tribunal for Rwanda.
— From the very beginning, lawyers in Ukraine have been recording everything considered to be a crime. Is this also being done for the purposes of the ICC?
— Proceedings do not have to be held at the ICC. There’s nothing to stop the Ukrainian courts from joining in with the administration of justice, nor indeed the courts in other states, for example, countries currently housing refugees. There’s also a mechanism of international legal cooperation in criminal cases, under which law enforcement authorities of one country can hand over evidence to their colleagues in another. In Germany, we saw not just the Nuremberg International Military Tribunal; cases were also heard by the German courts. It’s perfectly normal for an international court and national judicial systems to cooperate and share tasks between them.
– At the same time, Aleksandr Bastrykin has announced that he’s collecting evidence of crimes in Ukraine.
– And why not? For example, St. Petersburg deputy Boris Vishnevsky and film director Aleksandr Sokurov have appealed to Bastrykin to investigate the crimes in Bucha.
– Let’s assume that some degree of investigation has taken place, evidence has been gathered, and arrest warrants been issued for the accused. How might things be taken forward from there?
– The states cooperating with the court execute the warrants in one way or another. The court itself does not have the ability to arrest anyone.
– If the accused are put on trial in their own country, and that country doesn’t cooperate with the ICC, what then?
– Yes – it takes time, and yes – not all warrants will be executed. Some defendants will die before they are brought to trial. Recently, at the opening of the Darfur trial, the prosecutor said that one of the accused had been brought to justice after 13 years on the run. Justice at The Hague, as ICC prosecutor Karim Khan said, is not a bicycle lane in New York, it’s not an easy road.
– But you gave the example of Al Bashir, who, while technically wanted, even managed to leave the country somehow.
– But do you know where he is now? In a prison in Khartoum, the capital of Sudan. In the time that the arrest warrant has been in place, he has gone from being president to being a prisoner already convicted and sentenced on charges of corruption by a national court, and he is now serving his sentence. What makes you think he won’t go to The Hague from there? The current Sudanese authorities are cooperating with the International Criminal Court. The ICC prosecutor went to Sudan and met with the country’s leaders. We will see what the future holds for Al-Bashir.
– To take the situation in Ukraine, who might be the defendants in this case? Would it be the low-ranking military service personnel who actually committed the crimes, or those who gave them their orders?
– It seems to me that Al Bashir, whom you asked about, is a very apposite example. The principle of command responsibility applies: commanders, including the most senior political leaders, are responsible for the actions of their subordinates where this is covered by their intent. That is, if the president gives orders on the basis that he wants to achieve a specific goal, then he should be held criminally responsible. The International Criminal Court was not only dealing with the case of Al Bashir. There was also that of the President of Côte d’Ivoire. It is not at all unprecedented when former heads of state become defendants and the question to be decided concerns their individual responsibility.
– If we go back to the ICC’s ‘predecessor’, the International Criminal Tribunal for the Former Yugoslavia, it wasn’t just Milosevic who was indicted there, but also some lower-level warlords, 120 in all, 20 of whom were actually acquitted. To what level can such responsibility go from the bottom up, from the president to junior commanders?
– This is primarily a question of who the prosecutor will single out of the whole group. A fundament of the Rome Statute is that the crimes must be of appropriate gravity. By the way, the same is true of the Russian Criminal Code: a crime must constitute a danger to the public. The code states that an act which formally contains all the characteristics of a crime, but which does not constitute a public danger, is not a crime.
– Tell that to the judge in the Navalny case, where even the victims said they had not ‘suffered’ anything.
– In Russia, people have become so accustomed to criminal prosecutions being used to settle political scores they have forgotten what the criminal law is for in the first place. Criminal procedure is a part of the law and it exists in any society, even in early societies where no state has yet come into being. Law itself emerged as a criminal process: primitive society was looking for a means to get rid of those people who violated the rules to such an extent that society as a whole was at risk. Unlike civil cases, criminal proceedings protect the interests of society as a whole. And when criminal proceedings begin to be used to settle private scores, it’s the worst thing that can happen to society.
The Rome Statute is clear: to fall under its jurisdiction, a crime must have a certain gravity.
In practice, this means that ordinary soldiers are not likely to be accused, although it will depend on what exactly they did.
The International Court of Justice is designed to punish the most important military and political leaders. However, this does not preclude the punishment of ordinary soldiers by domestic courts – for example, by the same Ukrainian courts.
– Or Russian courts.
– Or Russian courts.
– That will be if it turns out it was Ukrainian Nazis and drug addicts who did all the killing, raping and looting.
– The Russian courts certainly have the competence to consider these crimes. The Russian Criminal Code has all these corpora delicti. If the Russian criminal courts within the framework of an independent adversarial trial in compliance with the norms of international law…
– As is usually the case in our country.
– …Then, from the point of view of the Rome Statute, Russia will have fulfilled its obligations as a country that is a signatory to the Statute.
– The international tribunals on Rwanda and the former Yugoslavia – these were also criminal courts, but a different kind of mechanism, is that right?
– These tribunals were established by resolutions of the UN Security Council before the International Criminal Court had been created. The ICC is a permanent mechanism based on the experience of those tribunals. More than a hundred states participate in it and support it. Until the 2010s, Russia was one of them. The point of the ICC is to make it unnecessary to create such ad hoc tribunals every time they are needed but to provide a permanent structure acting on the basis of an international treaty and not one formed by decision of the UN Security Council.
– If the International Criminal Court did not exist now, could Russia, as a permanent member of the UN Security Council, have blocked the creation of an ad hoc tribunal on Ukraine?
– If the tribunal had been created in line with the same scheme as the tribunals for the former Yugoslavia and Rwanda, yes, it could. But now there is a discussion that another special tribunal needs to be created to look at aggression. That is, I would not rule out a situation where there would be a separate court for war crimes, a court for crimes against humanity and genocide, and separately a tribunal for aggression against Ukraine.
– And Russia won’t veto its creation?
– The aim is to create it by decision of the UN General Assembly and not by decision of the Security Council
– Is that possible?
– There’s a first time for everything. When the Rwandan genocide happened in 1994, the question was asked then: is it possible? It turns out it was. The Security Council voted and created a tribunal. The General Assembly may well find such competence in itself; whether or not it will happen depends ultimately on the Assembly.
– 140 states in the General Assembly have already voted to condemn the Russian “special operation”.
– Creating a special tribunal is still an entirely different level in terms of potential confrontation, but the alignment of votes in the UN is constantly changing. And given the information coming from Ukraine, we can assume in which direction it is changing.
– Can the UN General Assembly eventually become a mechanism to override the veto of any of the permanent members of the Security Council in other cases as well?
– The veto of the permanent members of the Security Council is an old question in the history of the UN; discussion about what needs to be done has been going on for ten years. There have been various proposals: overriding the veto by the General Assembly, adding new members to the Security Council, requiring that not one member veto, but several. But there’s one thing that, for some reason, if they are talking about it, they’re not talking loudly enough. The UN Charter lists by name all the permanent members of the Security Council. And do you know who’s listed there? The Union of Soviet Socialist Republics. In all six official UN languages.
– And the Russian Federation as its legal successor? Is there such a note?
– Ah well, that’s an interesting and difficult question: is the Russian Federation really the successor of the USSR.
– How do you mean?
– Whose institutions became Russian in 1991 – those of the Union or of the RSFSR? The Union’s institutions were dissolved in December 1991. Boris Yeltsin was not president of the USSR, but of the RSFSR. The Constitution of the USSR ceased to operate, and the Constitution of the RSFSR became the Constitution of Russia.
The same with the Supreme Court: it was the Supreme Court of the RSFSR that became the Russian Supreme Court, and the Supreme Court of the USSR was dissolved.
The Russian Federation as the legal successor of the USSR – that’s an interesting and complex issue which must be resolved from the standpoint of Russian law. Now, from this standpoint, Russia is the legal successor to the RSFSR. But the RSFSR has never joined the UN. In 1945, three entities became members of the UN: the Union of Soviet Socialist Republics, the Ukrainian Soviet Socialist Republic and the Belarusian Soviet Socialist Republic. All the former Soviet republics, having become independent, each individually joined the UN. Except for the RSFSR. Russia announced that the USSR and Russian Federation are one and the same, but here the details are important: is it really the case? If it is, then why was it not Gorbachev who became president of Russia, but Yeltsin, who was elected president of the RSFSR? Why did the Supreme Soviet of the RSFSR become the Russian parliament? It was the institutions of the RSFSR, both legal and state, that became the institutions of the Russian Federation. The Soviet Union specified in the UN charter simply ceased to exist, and its representative to the UN simply changed the sign in front of him.
– On what grounds then has the Russian Federation had a seat at the UN for 30 years?
– That is precisely the question many are seeking to answer just now.
– Is it already being asked out loud?
– Of course. Ukraine’s representatives talk about it at every session.
– Ukraine’s representative, sure, but what about the rest?
– Ukraine isn’t the only one any more. Representatives of other countries have begun asking, ‘Essentially, on what grounds do you have a seat? Let’s take a little peek at the Charter. There’s the Union of Soviet Socialist Republics but who are you?’ And then the discussion I’m talking about starts.
– Has the discussion been going on for long?
– I can’t say exactly when it started but it’s more and more pressing right now. What people are now saying is that the events of 1991 took place before Christmas. Everyone was delighted that nuclear war wasn’t unleashed with the collapse of the USSR, and they seem not to have noticed what happened. Or they turned a blind eye. No one at the UN endorsed the substitution, no one voted on it, no one approved it. Everyone simply pretended that was how things should be.
– A lot of states fell apart during those years. Did all the new countries rejoin the UN?
– There is a precedent of a state deciding that it was the legal successor to one that had collapsed. It took its seat in the UN, and then it emerged that no one had accepted it. The example is that of Serbia and Montenegro, which regarded itself as Yugoslavia. It had to rejoin the UN.
This is precisely an example of the break-up of a federation, an attempt on its part to declare itself a legal successor, and a refusal on the UN’s part to recognise the fact.
– Why then hasn’t Russia been reminded that it must rejoin?
– I think there are complicated political and legal reasons for this. The prevailing status quo more or less suited everyone: a nuclear power, it might take offence, why squabble? But now the situation has changed.
– The Soviet Union was excluded from the League of Nations after it invaded Finland.
– The League of Nations had made provision for such a mechanism. It’s all more complicated with the UN. It has a mechanism too but it’s virtually never used. What matters here is something else: it’s not a matter of exclusion but the fact that the Russian Federation has never joined the UN.
– Let’s assume that Russia receives a proposal to join the UN all over again, as happened with Serbia…
– Then it won’t have a place as a permanent member of the Security Council because the UN Charter states that the USSR is a permanent member of the Security Council.
– What will then become of all the Security Council’s resolutions over the past 30 years? Will they immediately become unlawful?
– Well, you know, Russia isn’t the only member of the Security Council. There was a quorum, meaning that the decisions are lawful. Generally speaking, states are not obliged to take part in sessions. During the Korean War there was a point at which the Soviet representative left the UN Security Council chamber and everyone was delighted: now let’s vote. And they voted without any veto to take peacekeeping forces into the Korean Peninsula.
These questions are all individual and complicated. The UN International Court of Justice is entitled to interpret them. Among other attributes, it has a consultative function. In other words, it can reach consultative conclusions on matters of international law in response to demands from UN agencies. Both the Security Council and the General Assembly have the right to ask for such consultations, including as regards Russia’s membership. This is a legal issue. It entails interpretation of the UN Charter. It was precisely the International Court that had the final say on Serbia. I’m not saying that this is exactly how everything will be resolved. Just that the option exists and it must be remembered. The permanent representative of Ukraine is talking about it virtually everywhere but the position has also appeared in academic publications.
– I haven’t seen it in the press. Has it been published?
– The press in general only takes an interest in matters of international law at critical junctures. Right now international lawyers are incredibly in demand among your colleagues. But normally, most issues of international law simply aren’t covered by the press and are only discussed by a small circle of diplomats and lawyers.