DON FRANZEN: Dr. Ellis, back in March of this year, you gave us an interview about your initial reactions to Russia’s invasion of Ukraine. And at that time, you said that Russia had violated at least one cardinal principle of international law, namely that a state is not allowed under international law to invade another sovereign state, only to act in self-defense. But you also mentioned that there was a second principle of international law that could be implicated by Russia’s invasion, and that was the commission of war crimes on the territory of the country invaded. I understand now that you’ve since conducted a tour of Ukraine to investigate that second issue. Can you tell us, please, something about the tour you just completed?
MARK ELLIS: Yes, I felt it was important for me personally, and as director of the International Bar Association, to visit Ukraine. The IBA has been actively engaged since February in assisting Ukraine on a number of issues, including the accountability aspect of the war. And because this is the area I’m most involved in, I thought it was important to visit. So I set out to spend seven days in Ukraine. I started on the west side of Ukraine on the border of Slovakia to attend an event and then was driven to Kyiv for a series of weeklong meetings. I also had an opportunity to obtain permission and security to venture north into Makariv, Bucha, Borodianka, and Gostomel, where Russia had first invaded Ukraine through Belarus in an attempt to take possession of the capital, Kyiv. This was the first opportunity I had to see the devastation and evidence of the crimes that had been committed. Much of my visit to Ukraine dealt with the issue of accountability for the ongoing crimes being committed in the war in Ukraine. This was a crucial issue for me during my visit and meetings in Ukraine.
Can you summarize for us what you observed in your seven days in Ukraine?
There were many insights, but one of the most intriguing occurred during the numerous meetings I had with government and non-government officials. There was unanimity for the needed focus on accountability and justice. This fascinated me because, amid a war, much attention is, of course, focused on simply fighting the war. But Ukrainians, without exception, are also prioritizing justice and accountability for both the crime of aggression and war crimes being committed in Ukraine. And so it was interesting that regardless of whom I met with, whether officials for the Ministry of Justice or the Supreme Court, the Prosecutor General’s Office, or the Office of the President, all of them were focused on the issue of accountability.
Another aspect of accountability during my visit was to reinforce the IBA’s eyeWitness to Atrocities project that, to date, has collected over 20,000 videos and pictures of the consequences of the crimes that have been committed in Ukraine. Thus, I had an opportunity to see firsthand several of the crime bases in the north of the country, and although I did not travel east into the current battle zone, the evidence that I’ve seen personally and through our eyeWitness project shows the devastating impact of Russian aggression against civilians. That’s what I saw visually — village after village, house after house, building after building absolutely destroyed by these advancing Russian troops. There was no question in my mind that these attacks were not against military targets, but were instead against civilians, and they were targeted deliberately by Russian troops; this is a grave breach of the Geneva Conventions. So, yes, my trip was quite emotional and reinforced the statement I made to you back in March, that there was growing evidence, even then, that war crimes were being committed. I can now say, unequivocally, that atrocity crimes have been committed, and at a level that even I had not foreseen.
What are the principles of international law that are implicated by these events in Ukraine?
As you mentioned at the start of this interview, I’ve always seen this issue as bifurcated. The first is about the crime of aggression, the initial act of war, which is a violation of the most sacred principle of international law. The second is, of course, the atrocity crimes we are witnessing on the ground. Ukrainians see both of these principles as fundamental, and they want the international community to engage with Ukraine in bringing to justice those who committed the crime of aggression and are now violating the principles of international humanitarian law, the latter based primarily on the Geneva Conventions that set out rules and regulations on how war is to be conducted, with the primary focus on protecting civilians.
The focus on protecting civilians is the first and foremost concern for both Ukrainians and the international community. So the key question is does international law provide sufficient context and protections for civilians so that those who’ve perpetrated crimes against them can be brought to justice? For me, the answer is yes. As I’ve stated, there’s no question in my mind that atrocity crimes have been committed. The issue now is what steps need to be taken in order to ensure that those who commit these crimes are brought to justice. This includes both the mechanisms needed to pursue the crime of aggression and the violations of humanitarian law now occurring in the war. And these are different procedural paths with different requirements. And they will require different mechanisms to ensure that those that have violated either or both of these principles are brought to justice. And this issue was the main focus of my discussions in Ukraine.
So what agencies are conducting investigations as to the war crimes?
That’s a good question. It’s a combination of several government agencies, but the primary responsibility of investigating and collecting evidence for the atrocity crimes is with the Prosecutor General’s Office. I had a meeting with Prosecutor Andriy Kostin on this point. I think very highly of him. His office is being assisted by the international community, particularly European states, but also by the United States, in collecting the evidence and structuring the mechanisms needed to conduct trials. This will include domestic trials because Ukraine will have the primary responsibility, even beyond the International Criminal Court, to conduct war crime trials.
And as I mentioned earlier, the International Bar Association has our eyeWitness to Atrocities project, and so that was another major point of discussion because the evidence we’ve gathered will be part of Ukraine’s own investigations. As I stated, everyone is focused on the need for accountability, but it will be the Prosecutor General’s Office that will have the primary responsibility of pursuing cases and bringing to justice those who have committed the crimes.
The Prosecutor General’s Office being in Ukraine itself?
Correct. But there is a joint task force that includes representatives from several European countries, and the United States, who are assisting the prosecutor. There is also the International Criminal Court; its prosecutor has already opened an investigation into the crimes being committed in Ukraine. And so, Ukraine is working on a parallel track with both the Ukrainian prosecutor and the ICC prosecutor collaborating on accountability measures. A part of that collaboration will decide which instances and situations the ICC will follow, and which are the ones that the prosecutor for Ukraine will handle.
The International Criminal Court prosecution would be conducted in The Hague, I believe.
It would. The ICC will likely focus on mid- or high-level cases of perpetrators. Russian soldiers who are on the ground and not high-ranking will undoubtedly be handled by the Ukrainian domestic legal system. The ICC doesn’t possess the resources to be able to focus on every single instance of violations or atrocity crimes, and the Court wouldn’t be expected to do so. The ICC will focus on a smaller number of high-profile cases. Thus, it will be left to Ukraine and its legal system to pursue most of the individuals who have committed atrocity crimes. And that number grows every day, and so part of what Ukraine must do is to ensure that they have the expertise and capacity to undertake domestic trials.
Who could be prosecuted either by the ICC or by the Ukrainians, and if prosecuted, how could they ultimately be held accountable?
That’s a really good question. If you look at the ICC, neither Russia nor Ukraine is a State Party to the Court, but the Court still has jurisdiction because Ukraine has accepted the Court’s jurisdiction for crimes that have been committed from 2014 to the present day. Ukraine is able to do that even though it is not a signatory to the Rome Statute and thus not a State Party. Russia too is not a State Party to the Court, nor would it support any of its proceedings. This reality makes it more challenging for the Court because it’s not dealing with a State Party that has signed the treaty but rather a state outside the structure of the ICC.
But it’s important to emphasize that the ICC still has jurisdiction over Russian soldiers who have committed crimes because of the territorial jurisdiction that Ukraine holds, and that the ICC recognizes. Thus, the ICC can pursue indictments against Russian soldiers, even though Russia is not a State Party of the Court. However, your question as to whether individuals who have been indicted can be apprehended is both important and relevant to this issue because it is much more difficult when dealing with a state like Russia that is outside the structure of the ICC. But that impediment will not deter the ICC from pursuing indictments against those Russians accused of atrocity crimes. As stated earlier, I think the Court will focus on indicting higher-level individuals. And then it’s a waiting game for the political landscape to sufficiently change so that individuals who have been indicted will eventually be brought to The Hague. As I’ve said before, international justice plays the long game. And so even though an indictment against a high-level Russian military or civilian person would not, in the short term, lead to apprehension and transfer to The Hague, history shows that the ICC and other international tribunals eventually secure those indicted. The same would be expected regarding Russia’s war against Ukraine.
How can the ICC apprehend defendants if they’re protected by the state that they work for?
The short answer to that is they cannot. The ICC doesn’t have a military; it doesn’t have a police force. It’s not able to send troops to apprehend an indicted war criminal who might be sitting in Moscow. It’s not going to happen. Again, in the short term, apprehension of war criminals now in Russia will not happen. However, environments change, governments change, views change, and citizens’ perceptions change. We’ve seen the same time and time again in history. For example, in the former Yugoslavia, both Milošević and Karadžić were indicted, and then eventually apprehended. Another example is al-Bashir from Sudan. Who would have ever thought that he would lose power and potentially be looking at being transferred to The Hague? However, the fact is that al-Bashir has lost power. Just recently, in Cambodia, the conviction of the Khmer Rouge’s former head of state Khieu Samphan for genocide and crimes against humanity was upheld, 43 years after he was ousted from office. And so change does happen, and that’s the best one can hope for. Until that time, these indicted suspects are prisoners in their own country; if they were to try to travel outside Russia, chances are they would be apprehended and transferred to The Hague.
So again, people should not be disappointed nor deterred from the fact that the Court is not going to apprehend indicted individuals who are in Russia anytime soon. But I do think an indictment is important. Indictments show that there is a position in the international community that atrocity crimes are unacceptable and that justice will eventually be upheld, with indicted individuals held accountable. I think this is a powerful message for the international community to make.
So, the indictment could issue from the ICC and essentially be held until such a day as the accused is for one reason or another apprehended.
Correct. This is because there’s no statute of limitations on indictments for atrocity crimes. These indictments last indefinitely until the individual is either apprehended or, as is often the case, dies. Until it ends, that indictment stands, and it’s publicly known. I think that’s important.
Is it the case that nations that have signed on to the jurisdiction of the ICC have some provision to act upon indictments? In other words, apprehend people who walk into their jurisdiction?
Yes, they’re required to do so. If a country becomes a State Party to the Rome Statute, then it has a responsibility to apprehend and transfer the indicted person. I suspect there are people who will note that there have been exceptions to that rule where even a State Party has not adhered to that responsibility. However, I think that situation is a bit of an anomaly. Fundamentally what you say is exactly right. Every State Party has a responsibility to apprehend and transfer an indicted war criminal to The Hague. However, if an indicted individual is traveling to a non–State Party, then there is a gap in international justice. Unless there is a UN Security Council resolution that requires all states to support the apprehension of an individual, which we would not see in this case because Russia is one of the five permanent members, then the Court is left with relying on the good faith of non-party states to apprehend and to transfer the individual.
If the ICC proceeds with a defendant present and a conviction is secured, what happens to that person?
That person would serve his sentence. And it’s likely that the individual would serve his sentence in another country that has agreed to support the Court. Persons convicted by the ICC can serve their sentence in a state which has indicated its willingness to allow convicted persons to serve their sentence. For example, Thomas Lubanga was transferred to a prison facility in the Democratic Republic of the Congo to serve his sentence of imprisonment. It is also possible for the convicted person to serve his sentence in the Netherlands. This two-pronged approach is how it has generally worked with the international tribunals sitting in The Hague.
Thank you for discussing how these potential war crimes could be prosecuted either in Ukraine, by the prosecutor general, or possibly in The Hague by the International Criminal Court. Aside from the kinds of judgments that these tribunals could eventually issue, I wonder, Dr. Ellis, could you step back a little bit and talk, not so much about the judgment of courts, but maybe the judgment of history, what’s going on in Ukraine if you will?
I will do that. This issue is something that came up time and time again during my visit to Ukraine. As mentioned before, much of the focus was on accountability and justice, particularly within Ukraine’s own judicial system. Thus, the point raised was the need to ensure that the trials in Ukraine are seen as consistent with international standards of fairness and impartiality. And I emphasize this point because I believe this will be a big part of Ukraine’s legacy, that is, how it’s perceived in bringing to justice the perpetrators of crimes on its very territory by adhering to international principles. I recognize this is a significant demand. You’re asking a country to focus on ensuring that the trials against the very people who are committing crimes are fair and that the defendants receive adequate and quality representation, which the Ukrainian legal profession must provide. During the midst of a war, when you’re seeing the devastation and the crimes being committed against your own citizens, focusing on this issue is difficult. However, I was so impressed with the response from every single government official I spoke to and from the Ukrainian National Bar Association that regulates advocates. Each and every one said, “This is a priority for us; we have to do whatever is necessary to ensure that domestic trials are perceived as being fair.” I was really impressed with this sentiment, and I think they understand the need to accomplish this task. Of course, Ukraine will need some assistance in this endeavor because these are new areas of law and they’re complicated. Thus, I’m hoping the International Bar Association can play a role in assisting, but the very fact that Ukraine recognizes the need to be seen as providing this type of support is important. Ukraine knows what’s happening in Russia against Ukrainian soldiers and civilians. These are show trials; Ukraine wants to be very clear in its legacy that it didn’t follow that path.
That’s a great point, that the integrity of the Ukrainian process is important.
Yes, very important.
What about the bigger view, the judgment of history that I asked you to speak to?
I think history’s judgment in Ukraine will be quite extraordinary. Certainly, in my lifetime, I cannot think of any event that has signaled such severe potential jeopardy to the international order as Russia’s invasion of Ukraine. And this comparison includes my extended time spent in the former Yugoslavia before, during, and after the war. The war in Ukraine is singular in what it says about the world and about the law. This is why it’s so important that Russia’s actions fail. This is the only way international law and its principles prevail. This will be the final judgment, and I remain optimistic about this judgment because I’ve never witnessed the level of attention to accountability and justice that I have in this conflict. As I said from the start of this interview, this is the focus for both Ukraine and the international community. Thus, there’s a great deal at stake, not just for Ukraine and its citizens, but for the concept of international justice and accountability. This is why we have to get it right and continue to emphasize that this is not just a Ukrainian issue. This is an international issue because if we don’t forcefully prosecute the crimes being committed, including the crime of aggression and the violations of international humanitarian law, then we have no chance to reinforce these principles of international law. In fact, we will destroy them, and that’s a devastating position for the world to be in.
And the second point of your question is that it will be interesting to see whether the international community has the political will to focus on the crime of aggression against Putin and other high-ranking officials. For statutory reasons, the ICC does not have jurisdiction over the crime of aggression. Thus, it will be up to the international community, particularly Europe, to decide whether or not it has the political will to create a coalition of willing states to create a special tribunal to prosecute Putin and other high-ranking officials. That is an important decision to make, and it could transform international law in a way that we haven’t seen since World War II. Nations would finally say that the crime of aggression cannot go unpunished. However, it is important to note that there are many challenges to this endeavor. There are legal hurdles, and there are political hurdles.
Would this be sort of a new form of the Nuremberg principles?
You’re absolutely right. It is based on the Nuremberg principles that emerged from the Nuremberg trials. Although, as you know, in one of the books I reviewed for LARB by Bill Schabas, we learned that actually the crime of aggression was considered after the end of World War I against Kaiser Wilhelm II. It never materialized, but later, Nuremberg galvanized an understanding of the crime against peace, which is what the crime of aggression was referred to as then. And for the first time since Nuremberg, we now see a movement to create a tribunal focused on this critical crime. Actually, I’ve heard it mentioned that this is a Nuremberg moment. Although I have stated that if a special tribunal is created, and if it is to be legitimate, there must be a significant number of nations that participate in creating this tribunal. It cannot be left to Ukraine alone, because, as I said from the start, Russia has violated the most sacred principle of international law. Thus, the international community needs to be engaged with the tribunal. Not all will, however. Some states, including the United States, will be reluctant and take a step back. They will undoubtedly say: “Well, if we support this type of tribunal, have we set a precedent? Will our leader be next? Are we going to place ourselves in this situation where we’re vulnerable to the same type of process against our country?” So this is another part of history’s judgment that will emerge from this war. It’s a fascinating debate, and an important one as well.
Well, thank you very much — a great explanation of how international law fits into all of this. And as you say, the wheels of international law grind especially slowly.
Yes, that they do.
We’ll see how this grinds out.
Yes, exactly. But I think it’s going in the right direction. There is momentum, and that’s really important. If we were putting aside any discussion about accountability, as we have done in the past, then I would be very concerned. But as I have said, the war in Ukraine is quite striking in how it has created a consensus about accountability and justice rather than just diplomacy. Often diplomacy wins over accountability because countries are eager to end the conflict, but they’re not too concerned about accountability. But I think Ukraine is an entirely different scenario. I think people understand that Putin has stepped far across the line, and in doing so he has galvanized the international community to pursue justice. I think this is a paradigm shift, and it’s a good one.
Dr. Mark Ellis is executive director of the International Bar Association, London, England.
Featured image: Paul Klee. Abstract (rot/grüne Stufung mit etwas Zinnober im Hochformat) (Abstract. Red/Green Gradation [with some cinnibar in vertical format]), 1921. Gift of Collection Société Anonyme. Photo credit: Yale University Art Gallery, public domain. Accessed October 7, 2022.