How and why did the idea of calling for the establishment of a special tribunal to investigate the crimes of aggression against Ukraine come up in the first place? Why was it necessary to call for the establishment of a new International Criminal Court when there is one already in The Hague? Why can the International Criminal Court not investigate Russia for crimes of aggression? Under what conditions could any newly established special court successfully prosecute anyone from the highest echelons of the current Russian regime? What is the broader symbolic significance of taking such initiatives today, initiatives which may not immediately be implemented, but at least bring about a larger public discussion about the role of international law in armed conflict? And how will the quest for justice in the face of clear Russian military aggression help the lives of all those ordinary Ukrainian citizens who have lost their loved ones and their homes during this devastating war? What are the subtle distinctions between crimes of aggression and three other types of crimes, namely: war crimes, crimes against humanity, and genocide?
Guests featured in this episode:
Mykola Gnatovskyy, a renowned Ukrainian legal scholar who was recently elected to serve as judge at the European Court of Human Rights. Before taking up this very prestigious nine-year appointment at the ECHR, Mykola was a professor at the Institute of International Relations, Taras Shevchenko National University of Kyiv. He also advised the Ukrainian Minister for Foreign Affairs on international criminal justice, and was a member of the International Expert Board on Crimes Committed during Armed Conflict at the Office of the Prosecutor General of Ukraine.
From 2015 until 2021, Mykola served three consecutive terms as President of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
In March of this 2022, he was one of the original signatories, together with Ukraine's Minister of Foreign Affairs and the former British Prime Minister, Gordon Brown, calling for the establishment of a special tribunal to investigate Russia for the crime of aggression against Ukraine.
GLOSSARY:
What is the International Criminal Court?
(01:58 or p.1 in the transcript)
International Criminal Court (ICC): permanent judicial body established by the Rome Statute of the International Criminal Court (1998) to investigate, prosecute, and try individuals accused of genocide, war crimes, and crimes against humanity and to impose prison sentences upon individuals who are found guilty of such crimes. On July 1, 2002, after the requisite number of countries (60) ratified the agreement, the court began sittings. It is headquartered in the Netherlands at The Hague: source
What is the War in Ukraine?
(04:32 or p.2 in the transcript)
In early November 2021 Russia began building up military forces along the borders of Ukraine, for the second time in a year. Over 100,000 Russian military personnel and assets were deployed in Crimea and in the Voronezh, Kursk and Bryansk regions of western Russia. Further Russian forces were deployed to Belarus for a series of exercises close to the Ukrainian border and Russian naval assets from the Baltic and Northern fleets deployed for exercises in the Black Sea. Tensions escalated following a US intelligence assessment in December 2021, which suggested that Russia could be planning an invasion of Ukraine in early 2022. On 24 February 2022 Russia launched military action in Ukraine, with forces crossing into the country from Belarus in the north, Russia in the east and Crimea in the south. Russia’s actions came just days after President Putin officially recognized the self-declared independence of the Donetsk People’s Republic (DPR) and Luhansk People’s Republic (LPR), the regions of eastern Ukraine that are under the control of Russian-backed separatist forces, and deployed “peacekeeping” forces to the region: source
What is the massacre in Eastern Anatolia?
(07:18 or p.2 in the transcript)
Massacre in Eastern Anatolia, also known as Armenian Genocide: campaign of deportation and mass killing conducted against the Armenian subjects of the Ottoman Empire by the Young Turk government during World War I (1914–18). Armenians charge that the campaign was a deliberate attempt to destroy the Armenian people and, thus, an act of genocide. The Turkish government has resisted calls to recognize it as such, contending that, although atrocities took place, there was no official policy of extermination implemented against the Armenian people as a group: source
What is the Wagner Group?
(17:02 or p.5 in the transcript)
Wagner Group: a network of businesses and groups of mercenaries that have been linked by overlaps in ownership and logistics networks. Entities making up the network have been described in sanctions designations by the U.S. Treasury as being involved in a wide range of activities, including working to suppress pro-democracy protests, spreading disinformation, mining for gold and diamonds, and engaging in paramilitary activity. The group, such as it is, first appeared in Ukraine in 2014, where it assisted the Russian military in the annexation of Crimea. Since then, paramilitaries and businesses have branched out to Syria—where they have fought in support of embattled President Bashar al-Assad while securing a foothold in the country’s energy sector—as well as to Libya, Sudan, Madagascar, Mozambique, and the Central African Republic: source
What is the occupation of Crimea and Eastern Ukraine?
(31:38 or p. 8 in the transcript)
The Crisis in Crimea and Eastern Ukraine: on 22 February 2014, President Yanukovych disappeared from Ukraine and a new government was installed by the Ukrainian parliament. Later that month unidentified military figures, widely thought in the West to be Russian personnel (this was later confirmed), surrounded the airports in Crimea, a majority-Russian peninsula in Ukraine and the Crimean autonomous assembly was taken over by pro-Russian forces. In March 2014 a declaration of independence was issued by the assembly and a subsequent referendum on union with Russia was held. Since then, Russia has maintained its control over Crimea and supported pro-Russian separatist forces who also took control of parts of the Donetsk and Luhansk regions of eastern Ukraine (the Donbas) in 2014. Fighting between Russian-supported separatists and Ukrainian government forces has continued in the Donbas for the last eight years despite the negotiation of the Minsk Agreements in 2014/2015 which called for a ceasefire, the withdrawal of all foreign armed groups and constitutional reform recognizing the special status of Donetsk and Luhansk: source
Democracy in Question? is brought to you by:
• Central European University: CEU
• The Albert Hirschman Centre on Democracy in Geneva: AHCD
• The Podcast Company: Novel
Follow us on social media!
• Central European University: @CEU
• Albert Hirschman Centre on Democracy in Geneva: @AHDCentre
Subscribe to the show. If you enjoyed what you listened to, you can support us by leaving a review and sharing our podcast in your networks!
SR: Welcome to "Democracy in Question," the podcast series that explores the challenges democracies are facing around the world. I'm Shalini Randeria, Rector and President of Central European University in Vienna and Senior Fellow at the Albert Hirschman Center on Democracy at The Graduate Institute in Geneva.
In today's episode of "Democracy in Question," I'm pleased to welcome Mykola Gnatovskyy, a renowned Ukrainian legal scholar who was recently elected to serve as judge at the European Court of Human Rights. Before taking up this very prestigious nine-year appointment at the ECHR, Mykola was a professor at the Institute of International Relations, Taras Shevchenko National University of Kyiv. Between February and April this year, he also advised the Ukrainian Minister for Foreign Affairs on international criminal justice. And until June of this year, he was a member of the International Expert Board on Crimes Committed during Armed Conflict at the Office of the Prosecutor General of Ukraine.
From 2015 until 2021, Mykola served three consecutive terms as President of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, a mission that is today timelier than ever.
In March of this year, he was one of the original signatories, together with Ukraine's Minister of Foreign Affairs and the former British Prime Minister, Gordon Brown, calling for the establishment of a special tribunal to investigate the crime of aggression against Ukraine, which is one of the main topics of our conversation today.
How and why did the idea of such a special tribunal come up in the first place? And why was it necessary to call for the establishment of a new International Criminal Court when there already exists an International Criminal Court in The Hague? And in order to understand the urgency of a new legal institutional framework, I think we will need to familiarize ourselves with Mykola, with the subtle distinctions between the crime of aggression on the one hand and three other crimes, war crimes, crimes against humanity, and genocide on the other hand. Interestingly, crimes against humanity and genocide are terms which were minted and advocated by two Ukrainian legal scholars during and in the aftermath of World War II, and they played a crucial role in the Nuremberg trials, as Philippe Sands has documented in his brilliant book, "East West Street."
Why can the International Criminal Court not investigate Russia for crimes of aggression? I will ask Mykola to explain that to us. And under what conditions could any newly established special court successfully prosecute anyone from the highest echelons of the current Russian regime? What is the broader symbolic significance of taking such initiatives today, initiatives which may not immediately be implemented, but at least bring about a larger public discussion about the role of international law in armed conflict? And could this also represent a much-needed intervention in larger debates about the crisis of democracy and the international legal order?
Last, but definitely not least, how will the quest for justice in the face of clear Russian military aggression help the lives of all those ordinary Ukrainian citizens who have lost their loved ones and their homes during this devastating war? These are some of the questions that Mykola Gnatovskyy and I discuss in this episode today.
Mykola, welcome to the podcast. And I especially would like to thank you and express my appreciation that you've agreed to the podcast, although you've just started your tenure at the European Court, so I can understand how busy you are and how preoccupied you are by some of these very, very large questions. And thank you for taking the time to join me today.
MG: Thank you very much indeed, Shalini, for your kind invitation and for asking yourself and me as well all these complicated and very important questions.
SR: So, Mykola, more than six months, and it's almost exactly six months into the war as we record this episode. We are currently in a devastating situation of stalemate with no breakthrough against the Russian forces in sight. There are, of course, many ways to keep hope alive in such a situation, and one of them, I think, is to keep up the pressure, both on documentation of war crimes within Ukraine by Ukrainian civil society actors and legal actors, but also to put forward the proposal for the creation of a special tribunal for the punishment of the crime of aggression against Ukraine, a proposal that you were involved in right from the start.
One of your co-signatories, Philippe Sands has pointed out that the two related but distinct legal categories of crimes against humanity and genocide, for example, are themselves of very recent historical origin, both coined by Polish Ukrainian law professors in Lviv. So, Ukraine, interestingly, has been the center of innovation in international law on this topic, and once again, it comes with a strategic reorientation to the distinct category of the crime of aggression.
So, let me start there and say, could you first explain to us what the distinctions are? And then we can go on to talk about why establish a special tribunal at this particular moment?
MG: Let me say from the outset that, of course, Ukraine has somehow contributed to the actual emergence of these terms. I think both Hersch Lauterpacht, who is behind the term of ‘crimes against humanity’, and Raphael Lemkin, who has invented the term ‘genocide’, they would be rather surprised if they were told they were Ukrainian, even though they, of course, studied in Lviv, in a major Ukrainian city in the west of the country at the university there, which wasn't predominantly Ukrainian though, but some of the professors and some of the people around them, of course, were. But it's also about the territory they come from and the tragic events that happened in the territory of modern Ukraine during the Second World War, and also before the Second World War.
Now talking about these categories, it is absolutely correct that they are fairly new inventions. And even though the term crimes against humanity was already in political use since at least 1915 when the British Empire, France, and the Russian Empire qualified the massacre in Eastern Anatolia against Armenians as a crime against humanity. But it was legally defined only after the Second World War. And a little bit after that, the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 was adopted. So, these are recent inventions.
But also, I must say that war crimes, as such, the whole idea that the most serious violations, the most serious atrocities committed in the context of armed conflicts should be punishable directly under international law against individuals who perpetrated those crimes. That is also a fairly fresh idea. It was basically more or less formulated after the First World War in the peace treaties after the war. Now, these three categories, war crimes, crimes against humanity, and genocide, they're intrinsically very, very closely linked because the three of them are the so-called atrocity crimes.
And one paradoxical thing about them, which might not be obvious to those who didn't have much experience with the subject is that actually, the very same conduct during, let's say, a situation of mass violence, during a situation of armed conflict, can be qualified, in fact, simultaneously as a war crime, as a crime against humanity, and as one of the manifestations of genocide. And it's always a very complicated task for the prosecutor to make the distinction between them, and it's actually very often a matter of choice.
To be short and as clear as I can, decisive elements are as follows. For war crimes, we are talking about the most serious violations of the norms on the conduct of hostilities and on the protection of civilians during armed conflict, so the so-called International Humanitarian Law. Not every violation of International Humanitarian Law or the law of armed conflicts is a war crime, but only the most serious ones, and they are specifically listed in specific treaties.
Now, crimes against humanity. This is something that Hersch Lauterpacht – a great I would say still British international lawyer who was born in the city of Zhovkva in Lviv region in Ukraine and studied at Lviv University. He then thought that the notion of war crimes is too limited because you always must link the conduct to the armed conflict, and it is not always linked so directly for the purposes of criminal law. So, he suggested that the most serious violations of human rights committed at a large scale against civilians, any civilian population, are described and are characterized as crimes against humanity.
Now, the idea of Raphael Lemkin, another eminent lawyer, Polish American lawyer, who studied also at the University of Lviv, and who was born in the territory of modern Belarus, was that one needs to look at the protection of groups, not just of individuals. Because he said that in the times he was living in, especially with the Nazis, with the Nazi policy in the occupied Europe was Holocaust. It was about destroying huge groups of population. He said that one needs to find the proper term. And then he invented this term genocide. He basically took a part from the Latin language with the Latin verb "to kill" and the Greek part of this, genos, whatever, is a race or a group or a nation, depending how you define it. And then he said that it should be aimed at protecting those groups from such policies.
So, the focus is different. Lauterpacht's crimes against humanity, they are focused on crimes against individual civilians and against civilian population. Lemkin's concept of genocide is about groups. So, basically, this is the difference. And in reality, it is very subtle. And if you look at the most terrible armed conflicts in terms of their humanitarian consequences, and Russia's war against Ukraine now is certainly one of those, any lawyer would actually invoke all these three concepts, war crimes, crimes against humanity, and crime of genocide.
SR: Thank you very much for this clarification. But that's exactly what I was going to ask you. All three would be relevant categories to be used now in the Ukrainian case. Let me then come back to my original question, which is, why establish a special tribunal to look into all these crimes? And secondly, what concrete steps have been taken in this direction?
MG: The interesting path is that for these three categories of atrocity crimes, war crimes, crimes against humanity, and the crime of genocide, the permanent International Criminal Court is competent, and it has jurisdiction over those crimes committed in Ukraine, insofar as Ukraine has consented to the jurisdiction of the International Criminal Court in respect of all crimes committed in the territory of Ukraine since the beginning of the Russian war of aggression against Ukraine. And this is not 2022, this is February 2014 when they started the action to occupy and unlawfully annex the Autonomous Republic of Crimea in Ukraine.
So, the ICC has jurisdiction, and the ICC is actively exercising it. In fact, over 40 states parties to the Rome Statute of the International Criminal Court have decided to ask the prosecutor of the ICC to investigate the situation. So, this situation is already referred by those states to the prosecutor. And that sped up things very much.
However, there is the fourth category of international crime, which is the crime of aggression, over which the International Criminal Court does not have jurisdiction in the case of Ukraine. The crime of aggression is very different from the atrocity crimes because the atrocity crimes is actually about human rights and humanitarian law, the most egregious violations of those, whereas the crime of aggression is a manifest violation of the rules of international law on the use of force. So, basically, waging an unlawful war is a crime of aggression if it is an obvious case, if it is manifestly against the principles of the United Nations Charter. And this is exactly what we have in the case of Russia's war on Ukraine.
So, the ICC was a lot of struggle. And that's a long and I will say rather sad story how the ICC was gradually acquiring some semblance of jurisdiction over the crime of aggression. It wasn't possible to complete in 1998 when it was created. There was a major step forward in 2010 at the Kampala Conference, and still, measures were taken not to allow the ICC to exercise this jurisdiction straightaway. And even after it finally received the relevant powers more than seven years later, it is still impossible to apply them to Russia as long as Russia has not and will not consent to the jurisdiction of the ICC.
So, the idea that Philippe Sands originally expressed was to complement the missing link in the international judicial architecture, and to create a very sort of narrow special tribunal just for one sole crime, for the crime of aggression, in one sole situation, in the situation of Russia's war against Ukraine. Because, of course, there's plenty of what about questions. What about Iraq in 2003? What about God knows what? You know, the history of last decades is full of situations when the provisions of the UN Charter on the use of force were put in question, to put it mildly.
But leaving that aside for the moment, because we can't resolve everything at the same time, well, we're faced with a war of aggression and territorial conquest, which is waged by the biggest country in the world against one of the biggest European nations, a huge continental war, which has been qualified as a war of aggression by the overwhelming majority of the international community. Over 141 states supported the relevant resolution at the very beginning. That really requires some action. And currently, this link is missing. That's why it's urgent. And that's why it is not against the International Criminal Court. On the contrary, it is meant to complement the International Criminal Court.
SR: Thank you for that clarification. Of course, the question here is, as you very rightly say, Russia is not a state which has ratified the relevant amendments to the Rome Statute which established the ICC. But interestingly, the United States and China are also not signatories. So, the question here is, can the ICC or any other institution that will be established by international law, exercise jurisdiction over a state which is not a signatory? I think this will be one issue.
But the other question, which as I was listening to you occurred to me was the question about how to fix criminal responsibility, right? Because the Russian state, of course, bears responsibility for the actions of its armed forces, although there is little consensus about the criminal responsibility of states as such, if I understand correctly. So, what could the ICC or a tribunal do, for example, in investigating crimes against humanities and war crimes committed by Russian troops, but also by Russian mercenaries, groups like the Wagner Group, etc.? Because one would really have to show very direct links between particular criminal acts and perpetrators and then up the chain of responsibility to the top of the command chain. Is that right? Are some of those the legal problems to be solved here?
MG: Now, as regards the first question, Russia not ratifying the Rome Statute or amendments to the Rome Statute and not consenting to the jurisdiction, how does that work? Well, in fact, when we talk about these four categories of crimes, war crimes, crimes against humanity, the crime of genocide, and the crime of aggression, these are the most serious crimes. These are the so-called core crimes under general international law, which means that the relevant international judicial institutions such as the ICC, and hopefully, the future Tribunal for the Crime of Aggression Against Ukraine, they would be acting on behalf of the international community as a whole.
So, this gives them the authority, this allows them to disregard, for example, immunities of Russian officials or of any officials, in fact, because it's not limited only to Russian officials, I would say. For example, officials of the Republic of Belarus are certainly at least to be looked at, I mean, to be investigated. And of course, as long as we're talking about an armed conflict, the conduct of all parties to the armed conflict must be scrutinized. So, if Ukraine or the defenders of Ukraine, in defending Ukraine commit a serious violation of the laws of war, which amounts to a war crime, they should bear individual criminal responsibility for that as well, regardless of their official position. So, the fact that tribunals speak on behalf of the international community, this solves the problem of rational stratifying, this solves the problem of the immunities that international law attaches to persons who hold high positions in their states. So, that's the first part of my answer.
For your second question as regards criminal responsibility of the state and, in general, responsibility of the state, I think this is something that is often missed by the general public. And this is normal, again, because I'm afraid, well, one of the problems international criminal justice has been born with was its complexity. It is a very complicated thing, unfortunately. And one has to be as talented as Philippe Sands to be able to explain it to the public in such a clear way that everyone understands. That's a very rare talent.
Now, the state is responsible, under international law. It bears the so-called international responsibility. It is not a criminal responsibility. This responsibility is basically about the duty to stop the unlawful conduct, to provide assurances and possible other guarantees of non-repetition. This is about making redress for all the damage done, whatever can be returned. Any restitution is, of course, the number one option. Generally, restitution is hardly possible in most cases, then it must be the financial compensation. And it also must be the so-called satisfaction in the sense of apologies, sincere apologies. So, this is what the state is liable for.
And, of course, when we talk about the violation of the foundational rules of international law, the foundational rules, foundational norms, peremptory norms, these are norms prohibiting genocide, these are norms prohibiting crimes against humanity, war crimes, and the crime of aggression. So, for those, every state actually, not only the victim, but every state has the legal standing to call on the respondent state to bear responsibility.
Now, as regards the Armed Forces of the Russian Federation, there's no difficulty in attributing their behavior, their conduct to the Russian Federation. As regards the various mercenaries, various murky bands and whatever groups, the so-called volunteers, God knows what, Wagner Group and others, there are very clear rules for attribution of international responsibility for the acts of such groups to the state concerned.
But that's not a criminal responsibility. Criminal responsibility is about individuals. And criminal responsibility has one significant advantage, which I really want to emphasize. This is about the concrete culprits, not about the collectivity. Why Lauterpacht, for example, was rather cautious, if not skeptical about Lemkin's concept of genocide, he was afraid that it will just deepen the differences and deepen the conflict between nations, between peoples. It's us against them. It's always them against us, they're destroying us, and so on. And this will last for generations. When you can make it concrete, when you can attribute with criminal responsibility to concrete individuals, then there is a prospect for peace, for normal life in the future, no matter how distant it might appear at the moment.
SR: I see. And thanks for that clarification. I think that's an important point that although it's an international responsibility, that doesn't make it necessarily a criminal responsibility. But the question for me is, when should such a tribunal be set up, or can it be set up while the war is ongoing as it happened in 1993 with the ICTY in the Yugoslav conflict? Or do we need to wait till after the war is over, and so the recognition by Russia would be a key condition then for peace? What is the status at the moment for the setting up of the special tribunal?
MG: I will start with a more general question and then I will share whatever I know about the current state of play. Now, let me approach this, maybe from a personal angle. When the large-scale invasion started on the 24th of February this year, I was, of course, asking myself, "How can I possibly contribute to the defense of my country, of my nation?" The answer wasn't obvious, actually, when I got in touch with Philippe Sands, and he came up with this idea of the tribunal. I thought that, "Wait a minute, this is what an international lawyer can actually do now." Because the war that Putin has started and is waging against Ukraine, it's also a war against international law, it's also a war against civilization, against the very foundations of the world as they were formulated after the Second World War. It's a complete denial of international law.
So, we either accept that logic, and we only limit our response to the military response, and the legal response only to self-help as if there was no international community, as if there were no international institutions, or we insist that international law actually exists, and it doesn't only help us to qualify this war as a war of aggression, basically, to call it by its proper name, but it also allows us to use some of the machinery. And so we looked at what was missing and then we came up with this tribunal.
So, it is true that it's fairly unprecedented to create such a tribunal whilst the war is still ongoing. However, the declaration that we made on the 4th of March at Chatham House was actually a follow-up to the 1942 St. James Declaration in London, which was very much during the Second World War. And no one could actually envisage that the war will be over in 1945, that the tribunal will be set up and the Nazi leadership will face the trial, but already back then, in 1942, representatives of nine states agreed that this is the path to be taken. So, that's very much the logic, and we move forward as much as we can move. And again, whatever Putin thinks about this, and whatever the current Russian leadership thinks about this doesn't really matter. One hopes that there will be another leadership, of course, in due course. So, that's logic.
And as regards the current state of play, again, since April, for obvious reasons, I can't participate in this, but from what I hear from open sources, the legal work, the background work has very much been completed. And I think it is for the states now, for the leadership, political leadership to choose the right model. For example, on the Independence Day of Ukraine, President Zelenskyy said that Ukraine will also initiate a resolution at the United Nations to support the creation of such a tribunal. And, by the way, the creation of such a tribunal has already been supported by the Parliamentary Assembly of the Council of Europe, by the European Parliament, by the Parliamentary Assembly of the Organization for Security and Co-operation in Europe. So, ultimately, the legal form will be found. It's just a political decision which is missing at the moment, but I'm hopeful that it will come rather quickly.
SR: So, let's look, Mykola, for a moment, at the broader social context that if the tribunal gets set up soon, I think it will, of course, revive public interest in the vital importance of the rule of law for international law. But even for ordinary citizens, I think it will mean a lot by giving hope to them that there is legal redress, not just military action, which is possible. But the other legal redress which Ukraine is proceeding with are some of the trials of individual Russian soldiers who have been captured in Ukraine. Could you say something about that and what the reaction to these trials and the sentences handed out by the Ukrainian courts has been in Ukraine?
MG: I will have to be very careful answering this question for obvious reasons. But it is true that there have been several trials which concerned individual war crimes, and which concerned Russian prisoners of war. And this is something, of course, that the Ukrainian public has very much welcomed if one is to judge on the reports in the media. I think that in comparison with the number of crimes reported, this is still a very, very low number. I hope that the Ukrainian prosecution and the Ukrainian courts will be learning their lessons and will be improving the ways that they are looking into these matters as experience grows as there is international support. There's plenty of international consultants, top-level, actually, international consultants who are happy to assist the Ukrainian authorities in doing it right and delivering justice the way it should be delivered.
SR: So, one thing which struck me as an outsider looking at it is the involvement of a large number of civil society organizations, NGOs, who have started documenting a lot of these war crimes in Ukraine as they are taking place. And I think it's important to document this for whenever there is the possibility of bringing them to the tribunal when it's set up. Could you say something about the role of these organizations, and what kinds of evidence have they been collecting?
MG: Yes, with pleasure. Ukraine has a vibrant civil society with lots of nongovernmental organizations which dealt with various aspects of human rights. But they understand extremely well that when such a war comes, it's also a war against human rights, it's also a war about the very foundations of the society. The whole discussion about human rights is no longer possible when the whole society has to defend itself against an assault, against the lives of people, against the destruction of the whole country, and so on.
So, these NGOs quickly realized that they can actually help their society by joining the efforts on documenting war crimes, which are, of course, to be led by the Office of the Prosecutor General of Ukraine, which has the jurisdiction, which is their task, actually, and is the task of the Ukrainian police, and so on.
However, the number of crimes, the number of victims is so huge that some assistance is definitely needed, so the public oversight is very much welcome. And Ukraine has several, not just organizations, but coalitions of organizations who are looking into these matters. And they appear to be very efficient, and they are great supporters of international criminal justice because international criminal justice is the last line of defense, so to say, of democracy. It's reserved only for extreme cases. And we're, unfortunately, dealing exactly with the most extreme case.
SR: So, let me wrap up this interview, Mykola, with asking a final question on how to strike the right balance between retributive and restorative justice. On the one hand, of course, it's absolutely crucial that the aggressors are punished, and those are prosecuted who are responsible for war crimes, crimes of aggression, etc. On the other hand, of course, people have lost family members in Ukraine, they have been forcibly displaced, they've lost all their possessions, their homes.
So, the question is, apart from the fact that sometimes all these horrors and the losses can hardly be captured in legal categories, but apart from that, would there be any potential means and channels for compensation, for reparation, which would cover some of the, at least, material losses which people have suffered? And beyond that, you know, how could one use the legal fora for any kind of reconciliation between Ukraine and Russia in the long run?
MG: The picture is extremely complex, and certainly, international criminal justice, retribution, as such, is only a small part of what is required and what is expected of justice. In Ukraine, we started looking at the so-called post-conflict justice, options for reconciliation, for establishing truth, and so on very early, actually right after the war started in 2014 with the occupation of Crimea and some parts of the two regions in the east of the country.
So, we were actively discussing this. And, of course, now, amidst all the atrocities, it is extremely difficult to return to the subject, but there is a lot of preparation done already. And certainly, one will have to look into the criminal law aspect. One will have to look into the compensation for the victims. And the compensation mechanisms are being established. There's a job to be done by the Ukrainian government, but, of course, there is also the major task of finding ways to provide redress at the expense of the perpetrator. And such efforts, as far as I understand, they're underway now. But this is a very complex job.
And also, within the Ukrainian society, the adverse effects of the Russia's policies over, at least, last eight and a half years, but in fact, much longer, they will also have to be overcome. It's true that in the territories occupied by Russia there's quite a lot of people who have been repeatedly brainwashed by the Russian television and propaganda for many years, at least since the beginning of the occupation in 2008 because the first thing they did, they cut off all independent media, all Ukrainian media, and so on and they just started indoctrinating people. So, that will also have to be overcome, and there must be ways to sit together to look for the truth, to forgive each other. These are things that are certainly on the agenda but, unfortunately, not on the immediate agenda.
SR: Thank you, Mykola, for this wide-ranging and insightful discussion, both on some very technical aspects of international criminal law, but also on the larger context, the social context in which the search for justice and international legal mechanisms for the redress of some of these crimes that we are witnessing daily are embedded. Thank you very, very much.
MG: Thank you very much, Shalini. It's a huge privilege talking to you always. Thank you.
SR: Let me summarize some of the main points of my discussion with Mykola today. The Russian aggression against Ukraine is an attack on Ukraine’s democracy, but it is also a war against international law. In early 20th century, the city of Lviv in today’s Ukraine was home to two jurists who created the relevant legal categories in international law. Lauterpacht and Lemkin advanced the terms ‘crimes against humanity’ and ‘genocide’ respectively and advocated for their punishment using the international law after the Second World War. Crimes against humanity focuses on atrocities committed against individual civilians while genocide refers to crimes against entire groups. Though in situations of war, as in Ukraine, it may be difficult to draw this distinction. The International Criminal Court has already been asked to investigate these two types of crimes, but it does not have the jurisdiction to investigate the crime of aggression, the waging of an unlawful war by Russia against Ukraine, which is in total violation of the rules of international law on the use of force. Therefore, it has been proposed, as we learnt today, to create a complementary special international tribunal to investigate and punish the crime of aggression against Ukraine. The Ukrainian government is planning to initiate a resolution for the establishment of such a tribunal in the United Nations. It is important to assign both criminal responsibility to individual politicians, military officers and mercenaries for the crimes committed in Ukraine over the past six months. And also to assign to a state, the Russian state the international responsibility to stop unlawful conduct and redress the damage done. Civil society organizations are actively documenting these war crimes and collecting evidence as the war in Ukraine enters now its sixth month. For Ukrainian citizens, it’s important to have the hope of obtaining justice through international law and international courts besides the trials which are going on in Ukrainian courts of Russian prisoners of war accused of war crimes in Ukraine. But besides retributive justice, Ukrainians have started looking at various ways of finding a host of post-conflict justice solutions since the unlawful annexation of Crimea by Russia in 2014 already. Ways of establishing the truth, of seeking redress and of trying to get compensation but also most importantly, ways to reconciliation.
This was the fourth episode of season five of Democracy in Question. Thank you very much for listening and join us again for the next episode in two weeks’ time. My guest will be Nadia Urbinati, I will discuss with her conceptual dilemmas of populism as a category to understand the problems democracies are facing today and whether populism constitutes the limits of liberal democracy. Please go back and listen to any episode you might have missed and of course let your friends know about this podcast if you are enjoying it. You can stay in touch with the work of the Central European University at www.ceu.edu and the Albert Hirschman Centre on Democracy at www.graduateinstitute.ch/democracy.