The possibility of bringing the Kremlin administration before the Hague Tribunal for the annexation of Crimea and the war of aggression in the east of Ukraine has of late been actively discussed in this country. Russia’s documentary Crimea. The Way Home, in which Putin admits that he supervised the unlawful takeover of the peninsula, has given a fresh impetus to the discussion.
Below is an interview with Justice Volodymyr VASYLENKO, a noted lawyer, graduate of international law school who was with the International Criminal Tribunal for the Former Yugoslavia (2002-05) and Yevhen MARCHUK, ex-head of the Security Service of Ukraine (SBU), ex-secretary of the National Security and Defense Council (RNBO), ex-Prime Minister, ex-Minister of Defense of Ukraine (he raised a number of interesting issues). Both were asked what they thought official Kyiv should do to bring the Russian president and his Kremlin administration to justice for their international crimes in Ukraine.
Ivan KAPSAMUN: “Russia’s armed aggression against Ukraine has been underway for more than a year, resulting in the seizure of Ukrainian territories, deaths, and ruined infrastructures. How would you assess Ukraine’s legal status in this conflict? How well is our government putting all this on record, collecting hard facts to be used as evidence in an international court of justice?”
Volodymyr VASYLENKO: “In order to effectively protect its national interests, the Ukrainian government must clearly define its legal stand in the matter of armed aggression on the part of the Russian Federation and act accordingly. This means that an unequivocal statement should be made on the highest political level, to the effect that Russia has committed an act of aggression against Ukraine. The President and the Prime Minister of Ukraine have often referred to the Russian Federation as an aggressor state in their speeches, but there have been no formal statements made addressing Russia as one. The Ministry of Foreign Affairs of Ukraine took an explicit, even if belated, stand in the matter when, starting in April 2014, it issued statements that clearly described the Russian Federation’s activities [in Ukraine] as acts of aggression, considering that Russia’s aggression against Ukraine began on February 20, 2014. For some reason, none of these formal statements [notes] has been published. The Verkhovna Rada made a statement and adopted a resolution that recognized Russia as an aggressor state on January 27, 2015, almost a year after that aggression had begun. Of course, better late than never, but Ukraine is not doing what is defined in Article 51 of the UN Charter as individual self-defense [in this case] against the aggression on the part of the Russian Federation. Instead, there is the Antiterrorist Operation in the east of Ukraine – in other words, we’re fighting some terrorists there. This reluctance to call a spade a spade is very harmful to the national interests of Ukraine; this is weakening its position in convincing the international community that Ukraine is a target of Russia’s aggression. This is also helping Russian propaganda that keeps saying there is an internal civil conflict underway in Ukraine, that Russia has nothing to do with it.
“Lack of consistent legal opinion on the issue of countering aggression is not conducive to the mobilizing of the potential of Ukrainian society, using national resources in repelling this aggression. Even when Oleksandr Turchynov was acting president, it was clear that an act of aggression had been committed against Ukraine. As it was, on April 14, 2014, he signed an edict launching the Antiterrorist Operation (ATO) in the east of Ukraine, involving regular army units. It was obviously an inadequate response to Russia’s hostile activities, particularly the annexation of Crimea aimed at continuing aggression in the east of Ukraine. Petro Poroshenko was elected President of Ukraine on May 25, 2014. As head of state, he was supposed to replace the ATO format with that of elimination of armed aggression on the part of the Russian Federation, as laid down in Sections 1, 17, 20, Article 106 of the Constitution of Ukraine, also as per Article 4, Law of Ukraine ‘On the Defense of Ukraine.’ He didn’t and nothing was done to determine the legal and institutional mechanisms for eliminating the consequences of Russia’s aggression.
“The political leadership has to be credited for restoring Ukraine’s security sector that was ruined by the Yanukovych regime. I submitted a document to Petro Poroshenko before his election as head of state through Valerii Chaly. I had worked it out together with Oleksandr Malynovsky [a noted Ukrainian jurist] and it proposed to develop a mechanism for beating off Russia’s armed aggression and eliminating its consequences. That document boiled down to the appointment of senior officials tasked with finding solutions to certain problems. At one time, there was such an official responsible for Ukraine’s WTO membership. That’s the way to act today. There must be a government official tasked with providing documented evidence of Russia being an aggressor state in regard to Ukraine.
“This should be accomplished by collecting hard facts testifying to Russia’s aggression in the first place, that there were – and still are – Russian spetsnaz, GRU units and teams of saboteurs, as well as regular Russian troops, operating in Crimea and in the east of Ukraine; that the local terrorists have been under their control, that they have been supplied materiel from them, and funded by the Russian Federation – in other words, that they have been operating as irregular units of the Armed Forces of the Russian Federation. In other words, documented evidence is needed to prove that Russia’s activities [in Ukraine] fall under the 1974 Resolution of the UN General Assembly, entitled ‘Definition of Aggression’ (3314 (XXIX). Instead, Ukraine’s ranking government officials and media keep giving us the ATO spiel, that some terrorists are being fought, at best mentioning Russian mercenaries. This approach is playing into the hands of Kremlin propaganda; they are telling everybody that Ukraine is suffering from an internal conflict involving ‘militiamen,’ with the ‘Kiev Junta’ struggling to overpower them, offering a totally distorted picture of the actual situation. During my recent visit to Radio Era they received a call from a lady who asked why our army was fighting its own people.”
Yevhen MARCHUK: “Likewise there is a distorted – or perhaps oversimplified – picture being painted here in Ukraine, of how one could submit a claim to the Hague Tribunal and that they would immediately drop all other cases and start investigating into the crimes committed by Yanukovych and Putin. My questions to that end: Are there any difficulties in using Ukrainian legislation alongside international law [if and when it comes to] International Criminal Court proceedings? Would Ukraine have to proceed with its own criminal prosecution before submitting a given claim to the ICC? Is armed aggression under ICC jurisdiction? Has its identification been finally approved?”
V.V.: “An oversimplified picture, of course. Should Ukraine recognize ICC jurisdiction, then the Court, in the presence of documented evidence, would conduct its own investigation to determine whether there are grounds for accepting the exercise of jurisdiction, as set forth in Paragraph 3, Article 12 of the Rome Statute. The Rome Statue reads – and practice shows – that the ICC will hear only cases involving top government officials. As for those lower in rank and position, domestic prosecution must be applied first, except when a given country has no desire or is unable to bring them to justice. So far there is no complete match between Ukrainian legislation and ICC formulas, although, in principle, the Criminal Code of Ukraine contains clauses that can be used to bring to justice persons responsible for crimes against humanity and war crimes.
“In regard to ICC jurisdiction over ‘armed aggression,’ the pertinent clauses will enter into force as of January 1, 2017, provided 30 States Parties ratify the amendments submitted in 2010. Another condition is that two-thirds of the member countries must say yea during the Review Conference.”
Ye.M.: “Do you think the Ukrainian side knows how to collect such evidence in the face of defense, especially when it comes to appeal?”
V.V.: “All facts must be carefully collected, verified, and handled in keeping with set procedures. They must serve as convincing proof that Russia is an aggressor state in regard to Ukraine. There are lots of hard facts, but they must be professionally handled. Showing [Russian servicemen’s] passports from the rostrum [of the Verkhovna Rada] obviously doesn’t suffice. They have to be duly put on record. By way of example, SBU reported the capturing of Russian paratroopers or GRU saboteurs. There should’ve been duly processed records of their interrogations and eyewitness testimonies. There should’ve been legally valid evidence of Russian materiel having been used, complete with ID numbers.
“Russian servicemen taken prisoners of war must be transferred to internment camps, in accordance with international conventions. These persons should be granted the POW status and the attendant legal protection. They can’t be tortured, subjected to forced labor or exposed to a taunting crowd. If there is evidence that a given prisoner of war has committed war crimes or crimes against humanity, s/he must be brought to justice under Ukrainian legislation. Compared to the Rome Statute, the Criminal Code of Ukraine doesn’t have detailed clauses in that respect. Court rulings in such cases are also part of legal evidence and proof of civilized conduct on the part of the state which is defending itself.”
Ye.M: “This should apply to both our servicemen and civilians, in other words combatants and noncombatants, despite the difference between their statuses, shouldn’t it?”
V.V.: “Absolutely. There are four Geneva Conventions for the protection of war victims of August 12, 1949: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) relative to the Treatment of Prisoners of War; Convention (IV) relative to the Protection of Civilian Persons in Time of War. In time of war, the armed forces are categorized as combatants (servicemen directly involved in an armed conflict, weapon in hand) and noncombatants (physicians, nurses, war correspondents, people representing military justice…). Opposition cannot use arms against the noncombatants, especially those who take care of the wounded, particularly against the civilian population. Unlike the civilian population, persons who represent these two categories, once captured, have the POW status. This reminds me of the Nadia Savchenko case. The Ukrainian side should have insisted on her POW status as a member of the Armed Forces of Ukraine. If Russia presents evidence of her war crimes, then she will be duly punished. There is no such evidence and Savchenko is still in prison, contrary to Geneva Convention III (1949). This particular case serves as evidence of a war crime committed by Russia’s justice system.
“Consolidated claim. Here one should determine which rules of international law Russia has breached in the course of aggression against Ukraine, because this breach entails Russia’s answerability under international law, along with damage claims and prosecution of war crimes and crimes against peace and humanity. There have been media reports about the justice ministry summing up the damage inflicted by the annexation of Crimea. There should’ve been reports on the mind-boggling damage done to the east of Ukraine where Russian regular troops and Kremlin-controlled irregular units of mercenaries were intentionally destroying infrastructures and living facilities. By the way, after Nazi Germany invaded the Soviet Union in 1941, Moscow formed an extraordinary commission tasked with assessing the damage inflicted by the aggressor. Its findings would be eventually used in calculating the reparations Germany would have to pay the Soviets after WW II.
“Therefore, it is very important for Ukraine to assess all damage done by Russia and duly put it on record. I believe the Verkhovna Rada should pass a special bill concerning such assessment criteria and methods, appointing an assessing authority. Among other things, it is necessary to estimate the central budget refugee relief expenditures, considering that there are hundreds of thousands of them.
“Of course, it is necessary to identify persons responsible for war crimes and crimes against humanity in Ukraine, and demand legal punishment. This should also be part of a consolidated claim Ukraine should press against the aggressor state. In fact, there is a bill entitled ‘On the Repelling of the Military Aggression on the Part of the Russian Federation’ and a pertinent statement registered with the Verkhovna Rada of Ukraine. These documents generally reflect the events of the Russian aggression and propose an algorithm of legal counteraction in the national interest of this country. I hope they will be adopted before long.
“A consolidated claim should be executed by submitting a note of the Ministry of Foreign Affairs of Ukraine, requesting a bilateral diplomatic solution to the problem. This is a civilized way to go about it, and filing a claim against Russia in due course is a necessary step to be taken by Ukraine in order to subsequently defend its interests in an effective manner.”
RUSSIA WILL REFUSE THE CLAIM, BUT HITLER ALSO HOPED TO WIN THE WAR, AND WE KNOW THE OUTCOME
Ye.M.: “How about Russia refusing our claim, saying we aren’t going to do anything, we aren’t at war with you, this is your ATO?”
V.V.: “There are hard facts. There is a very effective method broadly used in international practice. Each UN member state that has a document it wants to circulate within the UN framework, one that reflects its stand in a certain matter, can disseminate it as a UN document. Therefore, Ukraine’s consolidated claim should be circulated as a UN document. Ukraine has that right, something nobody can deny. Then all the other UN member states – and the media, of course – would receive a copy of the claim. Russia would undoubtedly refuse to recognize the claim, but Hitler also hoped to win the war, and we know the outcome, what happened to him and his minions. I mean we shouldn’t live on a day-to-day basis, least of all by looking back at yesterday. We have to look to the future and build our stand so as to show for all to see that Ukraine is a state, that it realizes the situation it is in, that it knows what has to be done, that it can prove Putin’s Russia to be an aggressor state.”
Hanna SHEREMET: “When should this consolidated claim be filed? Today or after it’s all over?”
V.V.: “We should keep forwarding notes and specific claims to Russia for as along as its aggression lasts, piling up professionally processed incriminating evidence. That’s why we need a special government official tasked with coordinating the efforts of all bodies of the state. We also need detailed procedures.”
Ye.M.: “Perhaps we should gather all those who are collecting such evidence and tell them that the [ICC] defense would be professionally aggressive, and that the evidence should be well documented?”
V.V.: “This takes a great deal of systematic work; this work has to be done constantly, and instantly, when in hot pursuit. This also takes a legal framework. All this can be accomplished provided our political leadership adopts a responsible, serious approach to the matter.”
Ye.M.: “Perhaps an experienced person should put together a team of experts, including senior current or former government officials, foreign experts, and ask them to lend a helping hand.”
V.V.: “We have enough normal and clever individuals in Ukraine.”
Ye.M.: “We won’t have enough Georgians to cover the contingencies.”
V.V.: “Right, there won’t be enough Georgians to do the Ukrainians’ job for them, in order to work out a consolidated claim. Foreign experts could be invited, if only to corroborate the claim’s unbiased and truthful nature.”
Valentyn TORBA: “Strange as that may seem, Russia could get ahead of us and file its claim, couldn’t it?”
V.V.: “A good question. Moscow Red Cross has long been reported to have started collecting data pertaining to crimes allegedly committed by the Armed Forces of Ukraine on their own territory. Moreover, MRC was reportedly planning to bring Ukrainians before the ICC on charges of such crimes. Of course, this is another PR ahead-of-the-curve stunt.”
Ye.M.: “An experienced team playing an ahead-of-the-curve game, except that they keep lagging behind the curve.”
V.V.: “The point is that the International Criminal Court won’t accept a claim from Moscow Red Cross because this kind of claim can be filed only by a state, in this case the Russian Federation. To do so, Russia would have to recognize ICC jurisdiction, something Moscow would never do. Ukraine will do just that. On February 4, 2015, the Verkhovna Rada passed a resolution recognizing ICC jurisdiction over crimes against humanity and war crimes committed by senior officials of the Russian Federation and the leaders of terrorist organizations, the so-called DNR and LNR, with especially serious consequences and massacres of Ukrainian nationals. I feel confident that ICC will accept the exercise of jurisdiction after receiving quality evidence from Ukraine.”
Ye.M.: “Was the Verkhovna Rada’s resolution recognizing ICC jurisdiction a nonrecurring one?”
V.V.: “It was, and Ukraine should also use the UN mechanism on a broader scale. On March 27, 2014, the UN General Assembly passed a resolution on Ukraine’s territorial integrity, to the effect that the UN does not recognize Russia’s occupation of Crimea (there were 100 yeas and only 10 nays, including Russia’s). The next step Ukraine should take would be using the UN mechanism and proposing the General Assembly to adopt a resolution addressing the UN International Court of Justice, requesting definition of the status of Crimea after its annexation by Russia. This resolution would take yeas from two-thirds of the General Assembly member states: 129 countries. Even though an advisory ruling of the ICC has no legal strength, in this case it would make it clear that Russia has committed an act of aggression by unlawfully annexing Crimea. This would enhance Ukraine’s legal position and help the rest of the world see what is actually happening in the east of Ukraine.”
UKRAINIAN SOCIETY MUST PRESS “UPSTAIRS” TO QUICKLY RATIFY THE ROME STATUTE
I.K.: “How could we use the ICC to our best advantage? Why hasn’t Ukraine ratified the Rome Statute? Leonid Kuchma is said to have slowed down the ratification process.”
V.V.: “Sad but true, a considerable part of our society is still infected with the consumer bacillus, a hangover from our Soviet past. Some of us are still sure that all we have to do is make demands, and that someone somewhere will have to do something about them. That ‘someone’ is the state, of course, which is supposed to provide us with free housing, R&R, education, you name it. That was how the [Soviet] state provided for a minimum living standard, expecting absolute obedience in return. Those who didn’t toe the line found themselves in prison camps. We are now citizens of a democratic state, we have all of the democratic liberties, but the consumer moods are still there. Sure, why not have the International Criminal Court take care of all our problems? This attitude shows that such individuals know next to nothing about the ICC.
“The Rome Statute reads that the International Criminal Court is a ‘permanent institution… complementary to national criminal jurisdictions’ tasked with securing the supremacy of law when investigating into cases involving grave international crimes, when a given state does not wish or is unable to discharge its functions and bring to justice those responsible for international crimes. I mean acts of genocide, aggression, war crimes, and crimes against humanity. ICC hears cases involving senior officials, on charges of international crimes, whereas middle-to-low-level officials are to be adjudicated by national courts of justice and the state must secure their prosecution. In our case no one can prevent criminal proceedings against Putin, Shoigu, et al., on the strength of Article 110 of the Criminal Code of Ukraine, whereby armed aggression is qualified as murder entailing severe legal punishment.
“Putin and Shoigu are unreachable today, criminal proceedings notwithstanding. All those guerrilla field commanders, Russian army men guilty of crimes and taken prisoner, are a different story. They can and should be brought to justice. Now and then the SBU comes up with reports about captured Russian spetsnaz men. Then they are exchanged for Ukrainian POWs. This exchange should continue, of course, but any Russian taken POW, responsible for a crime, should stand trial first and be traded for a Ukrainian POW afterward.
“Ukraine should first use the national means of protecting its interests. If the Ukrainian government proves unable to apply its national mechanisms, particularly sanctions against Russia as an aggressor state, then what kind of international image can it expect? How can it expect stronger sanctions from the EU, US, and other countries? Its inability to show political will and take effective self-defense measures will not prompt the West to enhance aid to Ukraine, including lethal weapons supplies.
“As for the ratification of the Rome Statute, Ukraine has from day one been taking an active part in the working out of this instrument, signing it, and intending to ratify it. Ukraine is currently under the international obligation to ratify the Statute, as set forth in Article 8 of the EU Association Agreement, provided Ukraine will ratify it after making pertinent amendments to the Constitution of Ukraine. Why? Because on December 11, 1999, Leonid Kuchma signed Edict No. 313/99-rp confirming the directive to sign the Statute. On January 20, 2000, Ukraine signed the Statute, but for various reasons the ratification procedures stalled. On November 28, the [Melnychenko] cassette scandal broke out, causing cardinal changes in Kuchma’s attitude toward the ICC. His inner circle persuaded the head of state that he would be number one ICC defendant after ratifying the Statute. On January 13, 2001, Kuchma filed a claim with the Constitutional Court of Ukraine, challenging the Roman Statute’s ratification, insisting that there were ten clauses that ran counter to the Constitution of Ukraine. His were obviously flimsy objections. The Constitutional Court rejected 9 of the 10 clauses, but agreed that Paragraph 10 of the Preamble and Article 1 of the Rome Statute did not meet Paragraph 1, Article 124 of the Constitution of Ukraine. All that had to be done was amend Article 124, to the effect that Ukraine recognizes ICC jurisdiction, then the road to ratification would be clear.
“Attempts to amend the Constitution were made in 2002, 2003, and 2006. Kuchma had kept blocking them until 2005, using the majority in parliament under his control. The Orange administration also failed because of the squabbles between Viktor Yushchenko and Yulia Tymoshenko. Today amending Article 124 is also being blocked, although a pertinent bill, prepared by MP Vitalii Kuprii, is on record.”
H.Sh.: “What’s the reason in your opinion?”
V.V.: “They’re loath to irritate Putin. I believe that Ukrainian society should demand that the government ratify the Rome Statute as quickly as possible. Article 124 should be amended now, before the Constitutional Commission starts working out a new Constitution. Once amended, this article would allow immediate ratification. The ratification of the Rome Statute should be accompanied by the adoption of changes to a number of laws of Ukraine. First, changes to the Law of Ukraine ‘On the Securing of the Right to a Fair Trial,’ providing for a separate ad hoc Trial Chamber of the Supreme Court to hear cases involving crimes of genocide, crimes against humanity, war crimes, and crimes of aggression. Second, the Criminal Code of Ukraine should be amended to include a paragraph dealing with international crimes, envisaged by Articles 5, 6, 7, 8, and 8 bis of the Rome Statute. Third, the Criminal Code of Ukraine should be amended to include Chapter IX-2 ‘The Specifics of Criminal Proceedings in Cases Involving the Crimes of Genocide, Crimes against Humanity, War Crimes, and Crimes of Aggression,’ with two paragraphs specifying pre-trial investigation and court proceedings. Fourth, the Law on the Prosecutor’s Office should be amended to include Paragraph 3, Article 8, in the following wording: ‘The structure of the Prosecutor General’s Office includes the Department for Investigation into the Crimes of Genocide, against Humanity, War Crimes, and Crimes of Aggression.’”
BETTER APPOINT A SENIOR OFFICIAL TASKED WITH COORDINATING THE EFFORTS OF MINISTRIES IN COLLECTING INCRIMINATING EVIDENCE
I.K.: “Yatseniuk said the documentary with Putin and Shoigu’s revealing statements would be submitted to the Hague Tribunal. What do you think?”
V.V.: “That’s just another publicity stunt. Putin says he ordered GRU spetsnaz units to neutralize a 20,000-strong Ukrainian army. The Border Guard Service and the Ministry of Defense of Ukraine recorded violations of the national border on January 20, 2014. There is documented evidence. Russia issued a special medal reading ‘For the Liberation of Crimea.’ The date reads: ‘February 20, 2014.’ On March 1, 2014, Putin addressed the State Duma of the Russian Federation, requesting authorization to use units of the RF Armed Forces on Ukrainian territory. The Duma agreed. Isn’t this evidence? The documentary is just an addition to this evidence. Of course, it can be screened in court, but only as part of other evidence. Making it a splash would be premature and inappropriate. Our government would do better by appointing a senior official and tasking him/her with coordinating the efforts of ministries in collecting evidence against Russia’s aggression. By the way, I told Yatseniuk that this appointment was a necessity.”
Mykola SIRUK: “What was his response?”
V.V.: “There is no such appointment, that’s his response.”
H.Sh.: “Two week before the screening of the documentary about Crimea with Putin’s revealing statement, the Russian media changed their rhetoric. There started appearing reports and features with Russian servicemen wounded in action in the Donbas, now convalescing, identifying themselves and their military units, describing their missions in Ukraine, and how they killed the khokhols [pejorative term for Ukrainians]. The Russian political leadership never denied any such statements. Should the Ukrainian government respond to this?”
V.V.: “All this should be on record, to be used as incriminating evidence, and covered by our media to bring the Ukrainian public up to speed.”
H.Sh.: “That’s understandable, but our man in the street, reading and watching all this, with the government remaining silent, realizes that Russia has carte blanche in Ukraine and there is nothing we can do about this. Couldn’t the abovementioned examples be used as incriminating evidence for initiating criminal prosecution?”
V.V.: “The Ministry of Foreign Affairs of Ukraine should’ve issued a note relating to each such occurrence. If a [Russian] serviceman identifies himself and if he is known to have committed [war] crimes on Ukrainian territory, criminal prosecution should be started immediately and publicly. The Ukrainian media should demonstrate that their Russian counterparts are conducting racist propaganda, sowing the seeds of hatred of Ukrainians and everything Ukrainian. This is proof that Russia wants to destroy Ukraine. Hitler propagandized hatred of the Jews and proceeded to destroy them. Russia is following in his footsteps in regard to Ukraine.”
V.T: “We have about a million refugees, among them many eyewitnesses to war crimes and violations of human rights.”
Ye.M.: “Their statements could be used as incriminating evidence.”
V.T: “Many questions are being asked about who has destroyed this or that populated area in the Donbas. Could eyewitness statements be examined by experts, compiled, with official forms worked out and printed to be filled in by every such [forced] settler, reading I the undersigned… hereby testify to such and such war crimes, with the state guaranteeing the confidentiality of such statements?”
V.V.: “You are right, they could and this must be done by all means. Except that the Ministry of Justice is the only one to have filed a lawsuit against Russia, on the strength of Article 33 of the European Convention on Human Rights. However, such lawsuits are on an intergovernmental level and their possibilities are limited. A victim, being a Ukrainian national, has the right to appeal to the European Court of Claims (ECC) for breach of his/her personal property rights. Our media and the justice and foreign ministries’ websites could be used to advise victims of Russia’s aggression on how to defend their interests in ECC. Above all, we need a special body of authority tasked with coordinating all efforts aimed at protecting the national interests and those of businessmen who fell prey to Russia’s aggression. Otherwise our society will give way to hopelessness, with people not knowing what to do and having no support from the government.”
TOP QUALITY EVIDENCE: KEY TO WINNING A CASE IN THE HAGUE TRIBUNAL
Ye.M.: “What should our state and pertinent agencies know to overcome the defense in ICC?”
V.V.: “There are clear-cut international judicial procedures that define what kind of evidence can be used in court, including eyewitness testimonies. I mean documented evidence. Also, statements by individuals and NGOs that contain pertinent second-hand and media-based information. All this evidence is systematically examined and findings are issued, based on specific statements made by specific persons and relating to specific documents. I’d like to point out that the ICC practices very thorough time-consuming evidence examination procedures. They cultivate a special culture of the process, legal techniques, and adversarial approach. There is no rigid timeframe because quality comes first, because human destinies are at stake. Top quality evidence is the key to winning a case in the Hague Tribunal. The ICC Prosecutor, after having studied the evidence, contacts the Pre-Trial Chamber in order to receive authorization to conduct his own investigation into the case. In the course of this investigation the Prosecutor determines whether charges should be pressed against certain persons. After that the Pre-Trial Chamber is called to order to collectively approve or reject the Prosecutor’s findings. If approved, the Prosecutor draws up an indictment in regard to a certain person. If the person in question can’t be located in the Hague, the Prosecutor issues a warrant for his/her arrest. Now this is very important, considering that the Prosecutor has determined that that person’s activities are of a criminal nature and pressed specific charges against that person. There are special States Parties cooperation procedures for the apprehension of such persons under the Rome Statute.”
Ye.M.: “What about the appellate court proceedings?”
V.V.: “The Rome Statute reads: ‘The Judicial Divisions consist of eighteen judges organized into the Pre-Trial Division, the Trial Division, and the Appeals Division. The judges of each Division sit in Chambers which are responsible for conducting the proceedings of the Court at different stages.’ Each defendant, after hearing the verdict, has the right to have his/her case submitted to the Appeals Chamber made up of five judges. The sentence can be up to 30 years or life in the presence of especially aggravating circumstances. To make Putin face the Hague Tribunal, we need solid [flawless] incriminating evidence. This is a necessity, primarily to reaffirm the supremacy of law in Ukraine and the rest of the [civilized] world. This is also necessary to reaffirm Ukraine as a civilized member of the international community of nations ruled by law.”
I.K.: “Ukraine has filed three claims with the European Court of Human Rights. Would you please explain?”
V.V.: “From what I know, all those claims were similar in principle, except that each time there was more incriminating evidence. If the European Court of Human Rights in Strasbourg passes a positive ruling, then there will have be a formal statement condemning Russia as a violator of its obligations under the European Convention on Human Rights. However, individuals or legal entities can’t join a claim filed by the state. They must file their own claims, that’s the specifics of adjudication there. That’s why I say that people need professional help with such claims.”
M.S.: “Couldn’t those claims be joined the way the Jews joined their lawsuits vs. Germany?”
V.V.: “That’s a different story. The rules that determine the status and authority of the European Court of Human Rights do not provide for collective claims.”
Ye.M.: “In a word, those ‘upstairs’ have to show political will and appoint a senior government official to supervise a professional compilation of incriminating evidence, help victims of Russia’s aggression [with professional legal advice], and have the Rome Statute ratified as quickly as possible.”
