The Rule of Law versus the Law of Force: In Search of Political Will

Exclusive interview with Mark Ellis, expert in international criminal law and Executive Director of the International Bar Association (IBA), as published by Interfax-Ukraine

 

Text: Oksana Gerontieva

The international legal process of bringing the Russian Federation and its leadership to justice for war crimes in Ukraine is a “long-term game”. Ukrainian verdicts are mostly “in absentia”, but past tribunal experience shows that expecting justice is not naive, but an understanding of the time it takes for historical justice to be served.

In an insightful interview with Ellis, we discuss the political will of the world’s nations to uphold global order, the patience of Ukrainians, the inevitability of punishment for dictators, and many other philosophical and substantive legal issues.

National Investigations and Ukrainian`s patience

This isn’t your first visit to Ukraine since the war broke out. As an expert, could you evaluate our achievements and shortcomings in the context of the rule of law, with a particular focus on the investigation of crimes perpetrated by the Russian Federation?

This is my 14th visit to Ukraine since the start of the full-scale invasion, so I would like to share my perspective and observations.

The first thing to mention is the scale of the war crimes committed by Russia in recent years. We're talking about over 250,000 documented crimes! Russia has committed every war crime known against Ukraine.

Secondly, Ukraine is holding people accountable for atrocity crimes while the war is still ongoing. That’s unique! Investigating and prosecuting war crimes is a complex process in itself, and it's even more difficult during a war. And that is what Ukraine is doing!

Thirdly, your national investigations and trials will be key to holding Russia to account.

There is, if you will, a mosaic of accountability for atrocity crimes comprising the International Criminal Court (ICC), cases heard in other countries' courts under the principle of universal jurisdiction, the Special Tribunal for the Crime of Aggression and national prosecutions.

I believe it is precisely the cases within national jurisdiction that are the most important. The vast majority of cases will not be heard by the ICC or brought before courts in other countries.

Ukraine is devoting significant effort, resources, and talented individuals to building an effective system for holding war criminals accountable.  I give Ukraine’s work in this regard the highest praise!

However, the vast majority of these cases are heard in the absence of the defendants, in absentia

Yes, that's right. Unfortunately, proceedings in absentia are a characteristic feature of trials under these circumstances. But when such trials in absentia meet international standards, this is extremely important both for war victims and for global justice as a whole.

Ukrainians are reluctant to believe in this “absentee voting”

I understand that the many Ukrainians are not ready to accept this format. Of course, we would prefer to see the war criminals in the court in person. But, given the current circumstances, this is too difficult — I would even say impossible. At the same time, however, I believe it will happen in the future. This process could take a long time, so for now, it is better to hold a trial in absentia than not to hold one at all. After the verdict, we will not stop searching for war criminals. We will make sure they face in-person, rather than in absentia, punishment.

So, do Ukrainians need patience—the ability to wait?

Patience is an essential component when it comes to justice. There are no statutes of limitations for these types of crimes; international criminal law is a long-term game: if it doesn’t happen today, it will happen tomorrow; if not this year, then next. This requires patience.

Is there something we fail to notice when we’re too close to it? Is it a good thing or a bad thing?

We have monitored trials in absentia and can confirm that they clearly meet international standards of impartiality. The national prosecution of war criminals is a significant achievement for Ukraine, one that you may not fully appreciate yourselves.

I believe that Ukrainians should be optimistic about the prospect of prosecuting Russian war criminals, as this demonstrates Ukraine’s commitment to achieving justice.

 

From the rule of law to the law of force?

 

In today's reality, is it even worth hoping for fair redress, given the extremely complex geopolitical processes?

I would say that the international community needs justice and accountability. Last year, we commemorated the 80^(th) anniversary of the UN Charter, which I believe to be the most significant non-religious document in human history. It provides the framework for the existence of the civilised world, enshrining human rights and including the complete prohibition of aggression in Article 2.

Russia is trying to destroy this world legal order. Therefore, the consequences of this war are important not only for Ukraine, but also for the entire global community and the world legal order that has existed for the past 80 years.

This is precisely why Russia must not succeed: if it does, it will mean the destruction of the world legal order.

In your opinion, what is the current state of international law? Is it more alive than dead?

I believe we are at a critical juncture, where the current situation is colliding with a pivotal moment in time. This is not due to a lack of legal framework for the international order, but because we are losing the political will to preserve it.

Do we have to destroy everything in order to build something new?

I don't think so because the world order is based on solid foundations. We must preserve and protect international law. Russia calls for a change in the world order, but it is not an authority on international law since it does not adhere to it itself.

I’d like to ask about values as the basis of the international order. How do you see and perceive them right now? Isn’t power the dominant factor?

It is difficult these days to look at the world without concluding that it is moving toward the rule of might. States that are shifting from the rule of law to the rule of force are undermining the foundations of the world order.

I am not saying that there have been no conflicts or wars during this time; the point is different. I reflect on why wars happen—in most cases, it is because standards of international law are ignored, which leads to the concept of the rule of force.

If every country simply adhered to Article 2 of the UN Charter, which prohibits the threat or use of force against the territorial sovereignty and independence of states—how many conflicts would never even have started!

So, is the problem a lack of political will? Or is there also a certain fear involved?

I don’t know if it’s fear; countries simply say, 'We’ll let you pursue your interests while we pursue ours, ignoring what international law has to say about it.' In other words, this could be described as a form of national egoism.

This is precisely why we have reached this point of reflection. The international community must stand up and say that this approach is unacceptable under international law and that we must ensure Russia does not succeed in its war against Ukraine.

What steps should we take to ensure that international law is upheld?

I believe Ukraine is achieving this by reminding the world daily that if Russia wins this war, the consequences for the world legal order will be dramatic and irreversible.

Political Will for the Tribunal

Now, let's move from the broader perspective to the specifics. Nearly a year ago, a special Tribunal was established to hold the top military and political leadership of the Russian Federation accountable for the aggression, yet there has been virtually no movement on the international legal front regarding the start of its work.

At the same time, Council of Europe Secretary-General Alain Berset spoke of 'significant opportunities' for Ukraine with regard to the tribunal's work. As I understand it, he was referring to the tribunal's formal establishment at a meeting of the Committee of Ministers on 14–15 May.

What is your view on the prospects for launching the tribunal and Ukraine’s role?

Firstly, the establishment of the Tribunal itself is an extremely significant achievement; nothing like this has happened since Nuremberg. The number of countries that have joined forces to create the tribunal marks a major milestone for Ukraine and Europe as a whole.

We will now move from concept to the actual establishment of the institution and its operational components. Concluding a broad Enlarged Partial Agreement will enable all of the tribunal's mechanisms to begin functioning.

We are looking forward to the meeting in Moldova on 14–15 May, where 24 countries are expected to announce their intention to accede to the Enlarged Parial Agreement.

Signing this Agreement will be another key step in making this Tribunal a reality.

So, we cannot say that the states lack the political will to launch the Tribunal?

That’s a good question, and I agree with you. The political will is there – we can see that. That is essential for launching the Tribunal and ensuring that justice is served.

So why is the next step, which will take place in Moldova, so important? Because it will encourage more countries, to join the Enlarged Partial Agreement.

So, can we expect the Tribunal to begin its work by the end of this year?

In part, yes. The next step will be establishing the Tribunal’s operational framework, not the trial proceedings themselves. The next step will be to approve the rules and procedures, ranging from securing a venue to selecting judges and prosecutors. This is referred to as a "skeleton Tribunal."

It is currently difficult to say exactly when the Tribunal will begin holding those responsible for the aggression directly accountable. I would refrain from specifying timeframes, as there is still a long way to go and delays are possible. I think we should focus on the concrete steps that have already been taken. It is important that we are saying 'when', not 'if', the tribunal will begin its work.

Having been involved in international justice for many years, I can honestly say that this Tribunal was established in an extremely short period of time — this is extraordinary for both Ukraine and Europe.

For this reason, I would like to return to your words about patience — it is necessary to be patient regarding this tremendous effort.

This Tribunal is for your children and grandchildren, for Ukraine and all Ukrainians. But most importantly, it is for the international community because the crime of aggression has not been prosecuted since Nuremberg. Russia is a textbook example of this crime, so it must be prosecuted now; otherwise, there will never be accountability.

The Tribunal as a Safeguard for the Future

You have been a legal advisor to the Tribunals for the former Yugoslavia, Cambodia and participated in the trial of Saddam Hussein. Could any other legal frameworks or tools be helpful for Ukraine?

It is important for Ukraine to continue its efforts at the national level to prosecute war crimes.

And if we look at previous tribunals, I think it is very important to manage expectations. Courts and tribunals are not a panacea; they cannot meet all of people’s expectations.

It may also be helpful for Ukrainians to understand that tribunals work slowly but purposefully and inevitably: those who have committed international crimes will, in the end—perhaps later than expected—be held accountable.

Another point: international tribunals are limited in the number of cases they can handle; they will never be able to hold every war criminal accountable.

The Tribunal for the former Yugoslavia handled 161 cases, with 93 guilty verdicts and 19 acquittals. This is critically low in terms of numbers. But the key purpose of the tribunals themselves is to establish new precedent law.

Ukraine will do the same—create new jurisprudence, which will subsequently be used in similar cases.

In addition, tribunals refute the claims of those who deny that atrocities were committed—this is a significant achievement. In other words, verdicts will tell the story of what actually happened, thereby establishing the historical truth. The evidence from the Office of the Prosecutor General, joint investigation teams, and the Center for the Prosecution of the Crime of Aggression will become pieces of the puzzle that will reveal what was done against Ukraine.

To prevent such atrocities in the future?

How can we prevent such atrocities in the future?

This is always hoped for. For me, the purpose of international criminal law is to ensure that those who commit atrocities, whether lower level politicians and soldiers or heads of state, are held accountable. If not today, then tomorrow; if not tomorrow, then a year from now. This creates a sense of prevention. 

The ICC and Putin: a story with a sequel?

In light of the argument that punishment is inevitable, I would like to ask about the ICC's involvement with Putin. What are the odds, in your opinion, of seeing Putin in The Hague in the dock? This is given the Russian leader’s growing acceptance on the world stage and the weakening of the ICC as an institution.

The ICC has no law enforcement functions; it relies on the political will of states that are parties to the Rome Statute.

Although Putin is not yet in The Hague, he has been unable to travel anywhere since the warrant was issued, except to Mongolia, for fear that states parties to the Rome Statute might arrest him. I believe this is a very powerful tool of the ICC.

In answer to the question of whether Putin will ever end up in The Hague, I would say this: I once lived in the former Yugoslavia, both before and during the war. When the Yugoslav Tribunal convicted Milošević, Mladić and Karadžić, it was almost inconceivable to people that they would face justice in The Hague.  But years later, all three ended up in The Hague.

Who would have thought that the Liberian dictator Charles Taylor would stand trial? Or Rwanda’s prime minister, Jean Kambanda? And who would have imagined that Saddam Hussein would be punished?

For each of them, I think the very idea of being put on trial was unthinkable.

Yet the political situation often changes and that those who were once untouchable are no longer so.

Yes, it’s unrealistic at this point to envisage Putin and other Russian leaders appearing in The Hague. But history shows us that, sooner or later, it happens. Ultimately, changes will take place in Russia, and there will be the national and international will to bring Putin to justice there. I believe he will end up there.

I think the ICC will also bring charges against Putin for targeting civilians and civil objects, since he oversees military operations. This is just my assumption, but I believe his actions constitute this crime as well.

Genocide of Ukrainians

Can the Russian Federation’s actions against Ukrainians be classified as the crime of genocide? Are the necessary elements for proving genocide present?

The crime of genocide is a complex legal concept. If one listens objectively to both sides of the debate, one can find rationality in both sets of arguments.

A unique component of the crime of genocide is the requirement of proving "specific intent." In other words, it is not enough to prove that the crime was committed; you must also demonstrate that the intention was to destroy, in whole or in part, a national, ethnic, racial or religious group. This is an extremely high legal standard of proof.

I believe that genocide against Ukraine has been committed – the Russian Federation intends to destroy Ukrainians as a national and ethnic group. From the outset of the large-scale invasion, the Russian leadership, Putin in particular, demonstrated this genocidal intent through their refusal to recognise Ukraine as a state and their intention to completely seize and destroy it. This is also evident in their refusal to recognise the Ukrainian language, ethnicity, nationality and culture. The most dramatic example is the deportation of Ukrainian children, which constitutes an act of genocide in itself.

No right to a defense

I have a question for you as a lawyer. Is it possible, under the current circumstances, to protect the rights of Ukrainian prisoners of war, Ukrainian civilians held captive by Russia, and civilians in the occupied territories?

This is an important but difficult question. International law clearly stipulates the protection of prisoners of war. The Geneva Conventions, in particular, set out requirements for their proper treatment and prohibit torture. Similarly, the Geneva Conventions protect civilians living under occupation.

Numerous testimonies and UN reports clearly indicate that Russia is violating the provisions of the Conventions, and this is what the law says. This is yet another example of how the Russian Federation ignores all international norms.

These violations should be added to the list of crimes committed by Russia, and the Russian leadership must be held accountable for neglecting to protect the rights of prisoners of war and civilians.

Please tell us about the practical results of the IBA’s assistance program for Ukraine

Over the past four and a half years, we have implemented a number of significant initiatives. Notably, we are collaborating with the Government on establishing a tribunal on the crime of aggression.

A separate focus is on supporting Ukrainian lawyers, who are crucial to the justice system in their country. In partnership with the Ukrainian Bar Association, we deliver training on investigating war crimes and international legal accountability, and monitor related court proceedings. We also work on projects with the Ukrainian National Bar Association.

Our key technology project is the eyeWitness to Atrocities app. This tool allows us to document the consequences of war crimes in a way that ensures the evidence is admissible in court.

Many international organisations came to Ukraine to help at the start of the full-scale invasion, but they are no longer here. It was of fundamental importance to me that the IBA not only remained here, but also intensified its work. We continue to actively assist Ukrainian institutions, and this support will continue. It is crucial that Ukrainians do not feel abandoned in their time of need.

What is the most important thing you can say to a Ukrainian who has lost their home, family or sense of hope?   

What is the most important thing you can say to a Ukrainian who has lost their home, family or sense of hope?   

When it comes to lost property, the answer is clear: Ukraine and Europe are already setting up a concrete compensation mechanism to ensure that Russia compensates Ukrainians for their losses.        

Words are hard to find to express the loss of loved ones and the loss of hope, because this is a tremendous tragedy. The scale of Ukraine's losses is almost impossible to grasp, so the international community must continue to support Ukraine and its people in every way possible.