Alexandra Lieben 0:05
All right, I would like to welcome our audience in the room here and our online audience, all of you who joined us from really across the globe. My name is Alexandra Lieben. I'm the Deputy Director of the Burkle Center for International Relations. You don't hear me? I have a phone at the moment. Can you hear me better? No. Not working. This, alright, this is on the Zoom, that means we have to yell. All right. Alexandra Lieben, Deputy Director of the Burkle Center for International Relations, and we are one of the co-sponsors of this event. The other co-sponsors, the Promise Institute for Human Rights, and the Center for European and Russian studies here at UCLA. A few housekeeping notes, as I already told our audience in the room, please think of questions while you listen. And our online audience, please submit your questions in the Q&A portal at the bottom of your zoom screen, and do that while you listen to our speakers today. Furthermore, this event is being recorded. And the both audio and video will be available through our respective websites and YouTube channels and Apple podcast after the event. So what gave rise to this event? The idea came like to bring everybody together here and think about this, the topic of war crimes prosecution in Ukraine. Because we observed a pattern, and sort of for the past years, there has been, have been war crimes committed by the Russian military in different conflicts around the world. For example, the second war in Chechnya 1999, 2000 already under President Putin, and then Syria, of course, starting in 2014. So we saw the same pattern emerge, again, war crimes, just I think we'll define also for us what what constitutes war crime. But the same behavior sort of surfaced again in Ukraine, except this time we ask ourself, Ukraine is different from Chechnya is different from the situation in Syria? Could this be a turning point? Could the Russian military Russian commanders, leaders and perhaps even President Putin himself be held accountable for what's happening in in the conflict in Ukraine, but also with prisoners in or people who are were basically forcibly relocated to, to Russia. Now, let me introduce our really, truly esteemed panel here. To my right is Daniel Daniel Triesman. He's a professor of political science here at UCLA. He's authored five books, I really highly recommend that you read them. He's authored numerous articles in leading political science and in economic journals. His research focuses on Russian politics and economics, as well as comparative political economy. He has edited prestigious journals, served as consultant for the World Bank, the European Bank for Reconstruction and Development, and USAID. Since 2014, he has also directed the international Russia Political Insight project to investigate political decision making in Putin's Russia. It's really pertinent for us today, as all of this work was the publication "The New Autocracy, Information, Politics and Policy in Putin's Russia", which came out in 2018. His latest book co-authored with Sergei Guriev, is "Spin Dictators, the Changing Face of Tyranny in the 21st Century". I'm going to plug this because Dan gave a talk about this with Burkle Center and it's great talk. You can find it already on our website. Our privilege, he's like, it's really a privilege to have him on this panel. He will start us off today sort of with a geopolitical overview and also some insights into President Putin which he has a lot of. Next to him, Jessica Peake. She is the director of the International and Comparative Law Program here at the UCLA School of Law and also the assistant director of the Promise Institute for Human Rights. She teaches courses on human rights, war crimes, digital investigations, and the laws of war. She's also the founder of the UC Network and Human Rights and Digital Factfinding, a collaboration between Promise Institute, the UC Berkeley Human Rights Center, and the UC Santa Cruz Research for the Americas. Jess will give us sort of the meta view of war crimes, prosecution entities that Ukraine could take,and together with our third speaker, how such prosecutions could actually unfold. Our third speaker is joining us from London where it's already dark. Thank you very much, Alex.
He's Alexander Prezanti, is a barrister and international legal adviser who specializes in international criminal law, human rights and sanctions. He provides legal advice and representation to individuals NGOs and public authorities on all things related to human rights sanctions and international criminal law. He has led independent war crimes investigations, represented defendants and victims before international courts and tribunals, and advised individuals, entities and government authorities on sanctions and asset recovery. So his viewpoint is going to really be illuminating, illuminating today. He also participates in rule of law and capacity building project, has authored or contributed to a number of training and advocacy tools on topics such as war, crime, sexual and gender violence, war crimes, investigations and sanctions. We're grateful that he can join us from London today. He has extensive experience working in Ukraine. He will share with us sort of a granular perspective of what is happening on the ground, working with different organizations, and also what his views are about the possibility of prosecution. So without further ado, like, let's get started.
Daniel Treisman 6:00
Okay, thank you. Thank you, Alexandra, I'm going to be quick because, as Alexandra said, I work on Russia, but I'm no expert on war crimes. Very good to hear from the people who really are expert on this. But my brief is to say a little about how we got to where we are today in this war. And what might come next, probably won't say very much about that, because we've been continually surprised. So prediction is very risky. But today, the war is really unfolded in three phases. We're now at the almost at the eight month mark. And the first phase ended quite quickly. The war started with an attempt by the Russians to cease to storm Kyiv and other cities, and quickly overthrow the government, impose puppet governments throughout the territory of Ukraine. That failed, and the Russians then redirected their efforts towards controlling the Donbass along with the so called land bridge from Crimea, from the Donbass to Crimea. And that really was the focus through the spring and summer. And then from the end of August, we saw the really impressive counter offensive by the Ukrainians, which has pushed the Russians back around Kharkiv is now putting a lot of pressure on her son, and threatening to actually retake that city. The poor performance of the Russian troops on the ground, led Putin to respond by illegally declaring the four regions that the Russians claimed to be annexed to Russia and he also imposed a partial mobilization. And he says that about 220,000 additional troops have now been mobilized. So the casualties in these eight months have been horrendous. Of course, all figures are extremely tentative. We don't really know how many have been killed. But as of June, the Ukrainian government reported that about 10,000 of its forces have been killed and about 30 30,000 wounded. The true figure is bound to be much higher, especially now - that was back in June. The Russian forces as of August, US officials estimated 20,000 killed, maybe 50 to 60,000 wounded. And again, I would guess that now, the figure is somewhat higher. Civilians, more than 30,00 have been killed according to official Ukrainian sources as of mid October. There's no way really to verify that number. But it doesn't seem at all unlikely. Millions more fled across the borders to neighboring countries. And I should say that already before the invasion of this year, between 2014 when Russia started supporting this insurrection in the east of Ukraine, and 2021, more than 14,000 people. The current casualties are in addition to that. Now, the international reaction was very strong in support of Ukraine. The West, including South Korea and Japan imposed quite quite significant economic sanctions, freezing part of Russia's foreign reserves, imposing restrictions on trade and finance. There have been two UN votes, one in March and one back in, in sorry, one back in March, one in October. In both of t;hose very strong vote, denouncing Russia, over 114 states in both cases, voted against Russia. 35 abstained both votes and five states voted against. So besides Russia, that was Belarus, North Korea, Syria. And then in one of the votes that was Eritrea, in the other Nicaragua, so a small club of those that still support Russia. China, India and South Africa abstained on both those votes. And in fact, China and India have been big holdouts, not going along with the general condemnation of Russia. They've both tried to adopt a stance of apparent neutrality. But both have increased their oil purchases from Russia. China, despite officially adopting this neutral stand, the Chinese state media has accused and repeated propaganda produced by the Russians claiming that Ukrainians were producing biological weapons in labs in Ukraine. So China voted against suspending Russia from the UN Human Rights Council back in April. 94 states voted in favor, 24 against, including China. Russia withdrew before the vote would go into it before the decision would go into effect. More recently, Indian and Chinese leaders have seemed to express some hesitation about supporting Putin. They expressed reservations, but in practice, neither is putting pressure on Russia. So as Russia has done worse on the battlefield, Putin has hinted that he might, in the end, be willing to use a tactical nuclear missile or other weapons of mass destruction. Russian military doctrine allows the use of nuclear weapons if there's an existential threat to the Russian territory, and of course, the annexation of these four regions of Ukraine was in part an attempt to bring them under the Russian nuclear umbrella. So to make it credible, that Russia could use nuclear weapons to defend them. Most experts think it's pretty unlikely, very unlikely, that Putin would use nuclear weapons. Even a relatively small tactical nuclear weapon would risk radiation spreading back into Russia. And it probably wouldn't drastically change things on the ground, while it would generate global condemnation, possibly causing China to stop supporting Russia. Now, at this point, Ukraine's fighting very effectively with advanced weapons supplied by the West, and Putin has responded most recently by bombarding Ukrainian cities, dozens, hundreds of missiles at this point, hitting civilian infrastructure and killing a lot of civilians. He's also, as I said, imposed this draft and his agents are rounding up former reservists and it seems anybody that pressed gangs can find in the streets practically. Now, winter, which will come pretty soon in Ukraine is going to make things harder, so advances are probably going to slow down. Putin is hoping for a cold winter that will exacerbate the energy crisis that's anticipated in Europe. And he hopes to produce a political crisis that will change the dynamics. We'll see. Finally, from the first day of first days of the war, we've been witnessing pretty horrific evidence of war crimes. And there's two obvious subsets of these. First, there's the apparently deliberate bombing of civilians in schools, hospitals, shopping malls and whatnot. Clearly atrocities that have been ordered by higher up officials rather than just committed by individual soldiers. And then there's the ground level torture, rape and murder of civilians. We don't always know about these, whether they're ordered from higher up in order to terrorize the population or the result from indiscipline, sadism in ground level troops. So as Alexandra said, both of those types of atrocities have occurred in previous Russian wars under Putin, and even at the Yeltsin 1990s in Chechnya, indiscriminate bombing, or even deliberate bombing of civilian areas, and atrocities committed by by soldiers. So we shouldn't be surprised to see this sort of this way of fighting a war after witnessing what happened to Grozny in that boat. Still, it's, it's it's shocking. And what is different in this case is that this war was completely unprovoked. And Ukraine posed no sort of danger to anybody. When started, in the case of Chechnya, there were security issues. And in Syria, of course, there was a civil war already going on. Now, such apparent crimes against humanity, war crimes, by Russian Armed Forces have rarely been punished or even acknowledged in the past. And the question is, whether today, in the Ukraine war, there'll be more systematically investigated, recorded and prosecuted. Very eager to hear what Jess and Alex have to say about that. So thank you.
Jessica Peake 16:33
Thank you, Dan; and thank you, Alexandra for putting this event together. So my task is really to give sort of a broad overview of war crimes and some of the different accountability mechanisms that are currently in play in Ukraine, sort of at a, at a 10,000 foot level. So since Russia unilaterally committed an act of aggression with its invasion of Ukraine, in violation of article 2(4) of the UN Charter in February, we've seen a host of war crimes being committed by Russian forces during the ensuing international armed conflict between Russia and Ukraine. The fact that Russia continues to refuse to recognize it as an international conflict and persists and calling it a special military operation does not change the fact that this is an international armed conflict, and therefore, all of the Geneva Conventions, which is the body of law that regulates international armed conflict, applies. So under the Geneva Conventions, and the Rome Statute of the International Criminal Court, war crimes are defined as both grave breaches of the Geneva Conventions and other serious violations of the laws and customs of war, applicable during international armed conflict, also non-international armed conflict too, but not relevant for this discussion. Now, I can't go through all of the provisions of international humanitarian law and what constitutes a war crime, but one of the core principles of international humanitarian law is the principle of distinction. And this principle requires that at all times, militaries must distinguish between civilians and combatants, and between civilian objects and military objectives. Of course, some collateral damage is permissible, meaning some killing of civilians and some damage to civilian objects. But it is strictly limited by the principle of proportionality, which is a customary international law principle, which really prohibits launching an attack which may be expected to cause incidental loss of civilian life injury to civilians or damage to civilian objects, which would be excessive in relation to the concrete and direct military advantage anticipated. So war crimes include acts of violence and attacks against civilians and civilian property with no military objective. And international law also contains a range of prohibitions on different types of weapons that fail to discriminate, and which are, therefore likely to cause indiscriminate harm to civilians. So since the invasion of Ukraine, there have been reports of a wide variety of war crimes being committed. In a report issued just yesterday and submitted to the Human Rights Council, the Independent Commission of Inquiry on Ukraine, found that Russia has committed a host of war crimes and violations of international humanitarian law and human rights during the first two months of the war. This particular report is only focused on the very first period of the war. And so I just wanted to give you a little bit of information of what this Commission of Inquiry has reported. So they have found the relentless use of explosive weapons which are killing and injuring scores of civilians are devastating entire neighborhoods. This is including use of cluster munitions, unguided rockets and airstrikes. The Commission have also documented patterns of summary executions, unlawful confinement, torture, ill-treatment rate and other sexual violence committed in areas occupied by the Russian Armed Forces. In addition, we're seeing people being detained and some being unlawfully deported to the Russian Federation. Many, many people asked are reported missing. As I mentioned, this report really is only looking at about the first six to eight weeks of the conflict, and so it doesn't take into account all of the horrific information that has been coming out since the end of March, including the attacks on Bucha, this unrelenting civilian shelling in Mariupol, for example. It also does not take into account the really significant escalation of attacks that we've seen in the past 10 days since Ukraine's, basically in retaliation for Ukraine's attack on the Crimean bridge. So that's just a very brief summary of some of the war crimes actions that we're seeing on the territory of Ukraine. So what might accountability look like for war crimes committed in Ukraine? First of all, we need to distinguish between different types of accountability. First, there's the potential for state accountability as of Russia as a whole. And then second, there's accountability for individual Russian soldiers and commanders and perhaps even Putin himself. And I'm going to confine the rest of my remarks to individual criminal responsibility, but maybe we can talk about state responsibility in the discussion.
So since February, there's been really a flurry of efforts aimed at holding Russia and Russian soldiers and commanders accountable for war crimes committed in Ukraine. These include an investigation at the International Criminal Court, domestic prosecutions in Ukraine, domestic prosecutions in other countries under the principle of universal jurisdiction. We're also seeing a tremendous amount of evidence gathering by a joint investigations team comprised of I think, currently seven states, and also investigations and evidence gathering by civil society and individuals. So I'll talk very, very briefly about each of these categories. So first, the ICC investigation. Now it's important to note at the outset that neither Russia or Ukraine are parties to the International Criminal Court statute. However, Ukraine has accepted the ad hoc jurisdiction of the court by lodging to article 12(3) declarations on two separate occasions. This, this is a mechanism by which the state that is not a party to the Rome Statute can consent to the jurisdiction of the court generally in fairly limited circumstances. So the Ukraine has done this on two occasions, first in 2014, in relation to crimes committed in the aftermath of Russian occupation in Crimea, and then more recently, on March 11, Ukraine accepted the jurisdiction of the ICC, much more expansively, so actually over, giving the court jurisdiction over crimes committed since February of 2014. In addition to Ukraine's ad hoc acceptance of jurisdiction, the situation has been referred to the International Criminal Court by 43 different state parties between March and April of this year. This is really unprecedented to have that number of states referring a case to the court. The ICC formally opened its investigation in March, and this means that the ICC has jurisdiction to prosecute any individuals, including Russian nationals, who allegedly commit crimes falling within its jurisdiction. The crimes within the jurisdiction of the ICC are genocide, war crimes, and crimes against humanity. The ICC also has jurisdiction over the crime of aggression in certain circumstances, but only when a state party has ratified both the Rome Statute and the amendment adding the crime of aggression to the statute, and Russia has not ratified either of those, so the ICC would not have jurisdiction over aggression at this time. So under this ICC investigation, the prosecutor is mandated to investigate crimes committed by all parties in the conflict. So they'll be looking at potential offenses committed by both Ukrainian forces and Russian forces. What we know from prior ICC investigations and cases is that this process is likely to take a very, very long time. And at best, it might lead to the prosecution of a handful of high level perpetrators.
So that brings us to other mechanisms for accountability, the next being domestic prosecutions in Ukraine, and actually Ukraine itself has already carried out some prosecutions for war crimes by Russian soldiers. In May, it held its first case against a 21 year old Russian soldier who was sentenced to life imprisonment for shooting an elderly Ukrainian civilian under orders from his superior. Now, this trial was very swift, and the sentence was very, very harsh, leading some to question the use of legal proceedings in this way and the proportionality of that sentence. As of August, and I'm sure obviously, this number has increased dramatically since then. Ukrainian Prosecutor General's Office has opened about 25,000 war crimes investigations in of crimes committed in Ukraine. That's obviously a tremendous amount. And there are questions around the capacity and also the competency of the Ukrainian courts to try these cases because trying atrocity crimes against foreign nationals is extremely really difficult to prosecute effectively and fairly at the national level without significant international assistance. And this is both true during and after armed conflict. So, Ukraine, while it might be the best forum to prosecute these cases is going to need significant international help and support in doing so. The third mechanism is individual accountability and domestic courts through universal jurisdiction. universal jurisdiction is a principle under which a state can conduct an investigation and prosecution for atrocity crimes committed in another state. And actually, lots and lots of countries have incorporated universal jurisdiction into their criminal codes, including Ukraine. We see an increasing number of universal jurisdiction cases particularly against ISIS commanders and other members of the Al-Assad regime. We've also seen universal jurisdiction cases against senior leaders in Myanmar in Argentina. Ukraine has demonstrated its willingness to collaborate with other states on universal jurisdiction cases. And currently, I think four countries, Estonia, Germany, Latvia, and Lithuania have already opened universal jurisdiction cases into war crimes in Ukraine, and several morem mostly in Northern Europe, have declared that intent to start similar investigation processes. So then we have this joint investigations team. This is a team that was initially formed by Lithuania, Poland and Latvia in March of this year, and now has seven members including Estonia, Latvia, Slovakia and Romania. And it's supported by the European Union Agency for Criminal Justice Cooperation. The ICC Office of the Prosecutor is actually a participant in this joint investigations team. And really, the aim of this team is to facilitate investigations and prosecutions in the States, as well as those that could be taken over by the ICC. And its aim is to store, preserve, and analyze evidence on war crimes. And Eurojust is actually in the process of setting up a dedicated database in order to be able to do this. The final thing I wanted to mention before we pass over to Alex, are some of the other evidence collection efforts that are ongoing in Ukraine. So in addition to the ICC, the JIT, the Independent Commission of Inquiry, there are numerous other organizations and civil society groups and individuals working to document evidence of crimes committed in Ukraine. Several states have sent investigators into Ukraine to provide technical assistance, to train local investigators, and to conduct on the ground investigations themselves. Other organizations are also engaged in these efforts with varying levels of training, which obviously is complicated because we do not want evidence to be contaminated. And so we need to make sure that people who are engaging in these efforts are trained to do it in a way that is going to maintain its validity for potential future use in criminal prosecutions. I also just want to mention that these groups are conducting, I'm sorry, collecting a wide range of evidence. So this includes both physical evidence and oral testimony from witnesses, and also digital evidence. So there is a wealth of digital evidence coming out of this conflict. And there are a lot of civil society organizations, individuals engaged in collecting that information, verifying it and authenticating it, but they're hopeful for potential use of that in the future. So I think I'll leave it there. And pass it to Alex.
Alexandre Prezanti 28:35
All right. Thank you very much. Can everyone hear me right? Yes, yeah. Great. So hi, everyone, and thank you for inviting me to speak at this at this event. I'm only sorry that I can't be there with you in sunny California. Instead, I'm here in autumnal drippy England, but there we are. So I'll start with the with a disclaimer, as one does, being a lawyer. I don't work for or at, or with the ICC Prosecutor. I'm not part of any national or international body, investigative body. I'm just a lawyer that works with, sometimes alongside, sometimes, you know, in support of these various mechanisms. And so my opinion on you know, what we're talking about today is literally just that, it's my opinion. It's based on my interactions with these various mechanisms, it's based on my you know, my conversations with the people who are either working with them or or alongside them. So please don't take my opinions as gospel. It's just, you know, one man's view, as it were. So, I guess, I guess you should have a little bit of context about where my opinion comes from. As Alexandra introduced me, I'm a criminal barrister in England, I'm also an international lawyer specializing in international criminal law and human rights and sanctions and few other things. I specialize in investigations, complex investigations, as well as, as well as taking these cases to court. And in terms of Ukraine, my relationship with Ukraine started back in 2014, when I was asked to come and observe what was going on during the Euromaidan protests. For those who know this, for me is very much the sort of the starting gun of the of the mess that we're in today, of course, you know, we could infinitely regress into the past and try to find the reason for this conflict, but you're in my den as well as when it really heated up and never turned back. So I went there, and my task was to to help civil society actors to document the events that were taking place during those protests. And out of those events, I helped to, to build civil society capacity to document war crimes, which started taking place very shortly afterwards in Crimea and, and in Donbass. And why were we what, why, you may ask, we were we, you know, organizing civil society to document war crimes? Really it should have been the ICC, it should have been some other international mechanism. Well, no one was interested. And, you know, people were making the right noises, but for eight years, there was really nothing going on. I mean, Ukrainian prosecutor, prosecutors were investigating, of course, but in terms of international efforts, nothing was going on. So we, together with civil society, groups, investigated war crimes, crimes against humanity. This brave team of people went beyond, you know, the contact line into into the warzone to take witness statements, thousands of witness statements to, you know, collected evidence, open source evidence and documentary evidence, to build dossiers against individuals and against groups. And to build to start building cases. We submitted about 12 dossiers of evidence, hundreds of pages, to the ICC, basically asking the ICC to open a full investigation. We also submitted these files to various domestic prosecutors to launch universal jurisdiction prosecutions, but really, nothing happens. And in January 22, so in January this year, I was just about to launch a challenge against the ICC prosecutor for not doing anything, because I was aware that, you know, they had deployed a team of two, maybe three people to investigate this, this conflicts where 14,000 people had died. And then the war broke out. And we kind of mobilized the, we mobilized the team that we already had on the ground, and, and continued to do the work that we that we started in 2014. So on the face of it, Ukraine is a kind of festival of international criminal law at the moment. You know, there's been unprecedented support from different countries and organizations. International lawyers are literally throwing themselves at the situation. There, as we heard, there's the ICC, there are actually two UN inquiries or bodies investigating. There's the JIT with Eurojust, there are national, national universal jurisdiction investigations. And, of course, there's the Ukrainian prosecution efforts. And in my view, and I'll talk about this a little bit more later, but in my view, Ukraine is the best place for investigating, prosecuting these crimes. But first let's let's think about challenges. Because notwithstanding this amazing mobilization of effort, and money to bring Russian actors to count, there are some significant challenges. In Ukraine. The first and foremost, and this is the case in many, many other situations, is access to perpetrators. Most perpetrators are either in currently, you know, fighting in Ukraine, some of them are dead. And if they're not fighting in Ukraine and not dead, then they're back in Russia where they are protected. The Russian constitution actually prevents anyone from being extradited, any Russian citizen from being extradited to face justice abroad. So the chances of a Russian citizen who is in Russia being extradited to face justice is pretty much zero until we have regime changes and constitutional change. The other of course, there are some there are some prisoners of war taken by the Ukrainians. But therein lies another challenge. The Ukrainian government, of course, wants to prosecute these prisoners of war, if they're responsible for war crimes, but at the same time, these prisoners of war represent an important asset. They are, they can be exchanged for Ukrainian prisoners of war. So so this is a bit of a dilemma that the government faces. The second challenge is access to evidence. There's war going on, an incredibly brutal one. And it's not just happening, you know, where the concentration of forces are, in Donbass and Kherson and Zaporizhzhia. But it's happening all over Ukraine because the whole of Ukraine is being bombed. And so it's a dangerous place, dangerous place to send, to send investigators to. And many witnesses and much evidence is also happens to be beyond the contact line. Once territories have been taken over, then those witnesses, that evidence, becomes beyond breach. And the third challenge, I would say, as ever, is the challenge of coordination. There are many efforts. And sometimes those efforts are well coordinated. And, you know, they work together and produce something worthwhile. Sometimes egos and conflicting motivations clash. And so we have unnecessary squabbles, and contamination of evidence. And each mechanism that Jess has mentioned has its unique challenges. So so I could talk about this for a long time, but I'll try to be brief. The ICC? Well, the ICC has sent 42 investigators to Ukraine to investigate essentially, you know, we heard 25,000 individual criminal episodes. Now, of course, 42, investigators will never be able to investigate that many criminal episodes. So they have to be selective. They also have their protocols, they have their security issues. So they do not necessarily go to the dangerous places, they go to the places where, that Ukraine has already secured. There are language issues, because there are not that many Ukrainian and Russian speaking investigators working for the ICC.
Although I hear there are more now. And if you don't have the language, then you have to have translation. And many things get lost in translation, and things slow down. There is a lot of pressure to deliver on the ICC because it's in the new. People think, you know, people hear International Criminal Court, they think, 'Oh, yes, here we go,' the World Court will sort this out. So there's there's some pressure. So there there are some issues with case prioritization because really, as we heard, already from Jess, the ICC can only really try a handful of cases. We can't hope for more than five, maybe ten If we're lucky. But of course remember that the ICC will not try a case unless it has a perpetrator in custody and facing trial or if not in custody then the willingly facing, standing trial. So there is of course the access issue. And so there is this kind of tension between sort of building a handful of cases, a handful of important cases, but at the same time, dare I say, grabbing some headlines and trying to sound like you're doing something. So really, I would say the ICC should be focusing on building the big cases, the one against Putin, the one against Shoigu, the Defense Minister, the cases against the big generals that are responsible for the kind of the bird's eye view of the policy, command responsibility. But I'm afraid that the ICC Prosecutor will be tempted by the low hanging fruit, which is a shame because the low hanging fruit is what others can do—others who don't have the kind of resources that have been thrown at the ICC. Also, remember that the ICC is 20 years old, and in 20 years, the ICC has delivered a total of four convictions and two acquittals. So you know, let's let's not hold our breath for too long. UN mechanisms, I don't have very much to say about this. These are usually deployed where there is very little hope of justice. And here, we have many mechanisms and many actors trying to deliver justice. So I don't quite see the point of those UN mechanisms. If it's for the preservation of evidence, then what is the difference between what they're doing and what the JIT is doing, for example? So I am not convinced by by the need to have to UN Commissions of Inquiry running in parallel, stepping on each other's toes, or not. The JIT and other universal jurisdiction cases, well, they have an even bigger problem with access to suspects, because they don't have POWs in their custody. That's what the Ukraine has. And then they have even less access to evidence because well, because they're not on the ground. Yes, there are some Dutch investigators and some French investigators on the ground, but then they're not necessarily collecting information for the JIT. And even if they are, there's not so many of them. So really, the JIT and all of these other universal jurisdiction investigators across Europe and beyond, they depend on Ukraine investigating and then delivering both the evidence and the suspects to those jurisdictions. Now, I think the assumption, the starting assumption for this, for this kind of explosion of of efforts through the JIT was that Ukraine because of the war was incapable of producing any kind of, but I think now, we've seen that actually Ukraine is capable. Yes, there are challenges, and I'll talk about them, but I'm just wondering, why is it that we are throwing so much money at investigations being conducted kind of a second level? So first, there's been there's there's an investigation happening in Ukraine by Ukrainian investigators, and then it's being reinvestigated again in, you know, The Hague or Warsaw or something like that. So I might be wrong about this. But but but but I'm just wondering why the resources are being used in this way.
Now, we come to what I think is the most important aspects of justice, for Ukraine, and that's the Ukrainian prosecutors. They're best placed to deliver justice, because not only because they have access to the POWs that may be responsible for those crimes, but they have the best access to evidence; they speak the language of the languages; they have the you know, they have access to territories that other investigators will not necessarily want to go to. And more importantly, I guess, is that the justice is delivered close to the victims. Because we've seen time and time again, justice being delivered far away in The Hague and there being, you know, very little effect, I would say, that justice is felt at home. But there are some problems in Ukraine. First of all, there is no real international criminal law legal framework. I mean, we have the Criminal Code and the Criminal Code has one article that criminalizes war crimes, essentially breaches of the Geneva Conventions. But, but there isn't a list of war crimes. There aren't any special procedures and so on. There are some also some serious jurisdictional issues. Unfortunately, because there is no one, as you know, international criminal law framework, there also isn't an international criminal law prosecutor in Ukraine as there are in some places. So we have the Prosecutor General responsible for war crimes, but then the regional prosecutors in each region are also responsible for investigating prosecuting and crimes. So most of the cases that we've seen so far have been investigated, prosecuted by regional prosecutors, not the Prosecutor General. And if, there are a lot of resources are being thrown at helping the Prosecutor General, very few are being thrown at helping the regional prosecutors who are just doing the best they can. Then there's also the Secret Service who also have the jurisdiction to investigate and prosecute, and they are not interested in prosecuting war crimes, they're interested in prosecuting terrorism and breaches of sovereignty and territorial integrity and so on. And there is a tension between these three. And unfortunately, there hasn't been a kind of commanding force from the top to to unify these these investigations and prosecutions and streamline these, these things. What else can I tell you, there are some issues with competence, of course, investigative competence. My team, for example, recently reported that they went to town just outside of Kyiv, and saw evidence strewn all over the ground. It hasn't been collected, it hasn't been documented. And this evidence, actually they found some very key evidence, linkage evidence, evidence pointing to who might have been responsible for these crimes, so that's an issue, of course. Case management and case building, this is a this is a big issue also. Many of these prosecutors have never had to face this kind of volume of evidence. There's forensics, capacity issues and other capacity issues. So in my view, international, the international community must really support Ukraine, rather than throwing money, willy nilly. And by supporting Ukraine, I mean, concrete and practical support, with experienced investigators and experienced prosecutors, experienced case managers, and case builders, experienced experts in forensics, experts in ballistics, experts in weapons, identification and so on. They need to be embedded into pre-existing Ukrainian investigative teams. One organization that I would like to mention GRC, Global Rights Compliance, they are doing just that. They are embedding international experts into pre-existing mobile investigative teams. And I think this is the best way forward, really. But unfortunately, they're, you know, a relatively small organization, and they're not getting the kind of funding, in my view, that they deserve. But the bulk of the money, the bulk of the resources, are going, are being thrown at senior Western, American, you know, English, French, lawyers, trial lawyers essentially, that are, quote unquote, "advising," the Prosecutor General.
I'm not very impressed with this. I think it's, it's it degresses? I mean, I think it throws people off, it makes it look like there's a lot of help being given, but actually, I'm not sure how much value this is adding to the existing efforts. It's certainly adding a lot of value to some of the people who are having photo ops in Kyiv, but, but not in writing op-eds, but not necessarily for Ukraine. So Ukraine has done quite well. So far they've completed, so from beginning to verdict, 344 cases. Now, not all of those cases are war crimes cases. In fact, only five of them are strictly speaking war crimes cases. The majority are terrorism and treason cases and participation, still used to cases but that's just the way it is in in Ukraine. Unfortunately, that's what's happening right now. I mean, with time, I think a lot of those cases will be tried under the draft and soon to be enacted, hopefully, war crimes law. But that is what's happening. All of these, I think, yes, all of these ended up in guilty verdicts. Now, there are some questions, I think to be asked about that. There have been some accusations of duress, confessions under duress, and so on. But that's, again, really needs to be looked at. And with more support from the international community, I think these things can be really improved. Final word I would like to say is about civil society. I think we can't underestimate the importance of civil society in this effort. Back in March, the ICC prosecutor who won't, who had done nothing for the year that he'd been in power ,and its predecessor also nothing for for the seven years prior to that, gave civil society a speech where he told civil society is basically back off and step out of the way. Because the ICC town is going to investigate everything, but the ICC does not own the legal process. And it can't deliver the kind of justice that people hope to receive. So civil society is crucial to support domestic efforts, and to preserve the evidence that sometimes, you know, cannot be preserved by either Ukrainian prosecutors or international community. And, of course, civil society must do it diligently, impartially, professionally, must not contaminate the evidence. Let's not re traumatize the victims. They need training, they need support. So yes, on paper, Ukraine is the biggest ICL effort for decades. But you know, as, as you can see in in reality, it's complicated, and it's frustrating. But I hope we'll get there. Thank you very much.
Alexandra Lieben 51:56
Thank you very much, Alex. In the interest of time, and thank you for your realistic and slightly despairing assessment. Would the two of you like to answer briefly, and then we'll open up for questions. To Alex, it's like, do you have anything? Any thoughts about what Alex just said, from your perspective?
Jessica Peake 52:17
I mean, I think it's really valuable to hear from somebody who's so engaged on on what's going on, on the ground in Ukraine, and has been since 2014. So he's really been in this process of sort of seeing what's going on seeing where the failures, the challenges are. So I think it's, I mean, for me, it's most valuable to have students, I think.
Alexandra Lieben 52:34
I have a very quick question about tribunal. Because the idea of tribunals right, has come up sort of as another entity also to support Ukrainian prosecution. Is, is do you have any, any validity to that or any help in that?
Alexandre Prezanti 52:53
Oh, you're asking me? Yeah. tribunals? Do you mean, like an international tribunal? Or, like a new, a new tribunal?
Alexandra Lieben 53:02
Similar to what we saw in Rwanda.
Alexandre Prezanti 53:07
Well, we technically we already have this. We have the ICC with jurisdiction to do just that. But I would say, I would say what would be perhaps more worthwhile would be some kind of hybrid Ukrainian led tribunal in Ukraine, or if security issues don't allow, maybe in Poland, or somewhere very, very close, where the majority of actors would be Ukrainian. And there will be some support from from the international community. I think that would be ideal, in my view, because it would allow the Ukrainians to really lead on this without being told what to do, but at the same time, get the support that they need.
Alexandra Lieben 53:51
Yeah. Thank you. Questions in the room?
Jessica Peake 53:54
Just on that, Alexandra. So that there have been, there's a bunch of conversation around establishing a tribunal and particularly a tribunal to prosecute aggression. And there are several proposals out there that are floating around, but I, and we can talk more about those if people are interested, but I think Alex is absolutely right. Like having a hybrid tribunal that is located in Ukraine, that it that the Ukrainian people are leading and doing all of the investigative work with international support is probably the best mechanism, if we're going to add something else to this space.
Alexandra Lieben 54:25
And support along the way as you outlined it, Alex. Questions?
Audience Question 1 54:31
So by eating off the note of hybrid tribunals, we've had two in the past right. We've had the special court for Sierra Leone, we've had extraordinary Chambers in the Court of Cambodia off the Cambodia example. What we saw is that one shift in the national government became less favorable to the tribunal and more favorable to perpetrators regime to Kevin Rouge. We saw interference with with cases tribunal. We saw a lot of cases be closed or shuttered? What's, what is the three of your opinions on that in the context of a hybrid tribunal? And the dangers of politicization? Should there be a change in Ukrainian politics?
Alexandra Lieben 55:15
Was it clear enough? Alex, do you hear that?
Jessica Peake 55:19
I can take a first stab at that. So I worked at the E-triple-C for a little while. And yeah, I mean, it was an extremely problematic tribunal, because of all the reasons you just said. The, I think one of the main reasons it was problematic, though, was the passage of time. So that tribunal was only formed 30 years after the fact that the events of the Khmer Rouge, and we'd seen a lot of political change in that period of time. And, you know, it took three decades for the UN and Cambodia to come to an agreement for this tribunal. And then we saw these political shifting sands during the operation of the tribunal. And, yeah, I mean, I think most people that you talk to would say that it wasn't a resounding success. I think, with this proposal on the table of a hybrid tribunal, it's something that would get off the ground very soon. And so I don't think would be as susceptible to this changing political landscape that you, that did exist in Cambodia.
Alexandre Prezanti 56:15
Shall I add something? Or is that? Yes. Oh, just well, I too spend quite a lot of time in Cambodia. In fact, I spent 10 years working, defending cases at the Triple C. So I'm very well, very familiar with the dysfunction. But I think that well, there's another example. That's Bosnia. It's an example of a domestic tribunal, domestic specialist chambers for international crimes with international sports. And I think that's, that's. So there are examples of it working better. I also think what's important here is to write some, I mean, back in the back back in the day when when the Triple C was being negotiated. I think that UN didn't take a strong enough stance, visa vie the Cambodian government and didn't put enough in put in enough safeguards into the legislation. And I think that with sufficient safeguards, we can achieve a better form.
Audience Question 2 57:20
(Audience question)
Jessica Peake 57:54
Do you want to take that, Alex?
Alexandre Prezanti 57:57
I couldn't hear that question at all. I'm afraid. Okay. I couldn't hear a word. So if somebody could summarize the question.
Jessica Peake 58:01
The question is about arrest warrants. And what would happen if arrest warrants were issued for high level Russian officials? Would they ever actually be executed?
Alexandre Prezanti 58:15
Yes, they would be if there is regime change in Russia. I mean, it's possible, right? You laugh. But but but these things do you know, Putin is not immortal. One day, his time will come. And some, you know, we talked about Cambodia. That took 30 years. But it happened. There are other examples out there. That took some time, but regimes do change. And, you know, eventually people don't - do have to face justice. So I'm hopeful one day, I don't know about Putin, he probably won't go down easily. But other factors in his inner circle, I think will probably face justice.
Alexandra Lieben 59:02
It's frustrating to wait. I would like to take an online question, and that was state accountability. Do we have any chance of that?
Jessica Peake 59:13
I can talk about that unless you would like to Alex. Okay, so. So it says prospects for state accountability maybe. So really, what's going on in this space right now is that there is a an ongoing case before the International Court of Justice. Ukraine submitted this case to the ICJ on February 26. So right after the invasion. And the the jurisdictional basis for this ICC referral is actually really interesting, because Russia, as you may remember, tried to justify its invasion, on the basis that Ukraine was engaging in genocide in Donetsk and Luhansk in violation of the Genocide Convention. And what Ukraine has done is really turned that on its head and lodged a claim before the International Court of Justice, saying that because Ukraine, because Russia justified their intervention on the basis of this, there exists a dispute under the Genocide Convention, and therefore, the International Court of Justice has jurisdiction. And so that's what is happening right now. Ukraine argues that Russia's justification for the invasion under the Genocide Convention is false and an insufficient rationale for the use of force. And Ukraine has submitted a request for four provisional measures to make sure that its rights are protected. And at least 21, I think, other states have submitted declarations of intervention, in this case in support of Ukraine. And in March, just I think, three weeks after the original submission of the case before the ICJ, the court did issue provisional measures, ruling that Russia must immediately suspend the military operations in Ukraine while the court is adjudicated. Obviously Russia has resoundingly ignored the court. And so it really remains to be seen where this is going to go. It is an accountability mechanism that is ongoing. It's possible that there could be other international adjudications of the responsibility of Russia as a state however, that would really require in some, Russia's sort of willingness to engage with these these mechanisms. Of course, the ICJ will proceed with issuing a ruling. It's quite likely that Russia will ignore that ruling. And so there is not there's not really a broad enforcement power to enforce whatever ruling comes from the International Court of Justice, apart from continuing international condemnation of Russia, which I think we will continue to see.
Alexandra Lieben 1:01:51
Thank you. Yes, you and then we go to the last question here.
Audience Question 3 1:01:59
Okay. Some people perhaps holding a ceasefire either long or short term. What might happen then to the ongoing prosecutions. Any thoughts on that? Alex?
Alexandre Prezanti 1:02:19
Well, I mean, theoretically. I mean, Daniel might be the better person to answer this question from from the political standpoint, but theoretically, from the legal standpoint, one doesn't doesn't sort of prevent the other I mean, a ceasefire? Yes, it will be negotiated. And there is real politics involved in it. But if you've committed a war crime, you should, you should stand trial. It doesn't matter what the situation is.
Alexandra Lieben 1:02:46
Anything else you're asking?
Daniel Treisman 1:02:47
No, just I'm skeptical that there will be a ceasefire. But it's not impossible.
Jessica Peake 1:02:53
I guess one thing Russia could push for is some kind of amnesty if a ceasefire were negotiated, but I think Ukraine would not accept that. I think accountability for these war crimes is incredibly important. And I don't think Ukraine is going to accept anything that doesn't move that forward.
Alexandre Prezanti 1:03:12
Also, I don't think at ICC level at least, I don't think the amnesty would, would stand up legally. But that remains to be seen.
Alexandra Lieben 1:03:24
Several questions came in asked about frozen conflict, essentially, it's like what we've also witnessed Transnistria and also like Eastern Ukraine, in some ways, right? Since 2014, is like that, if it comes to that point, like I mean, that would not affect prosecution. So I mean, like you said, right, they would move forward. Perspective?
And then the last question I would like to take is, what - as a signal to other autocrats, other dictators in the world, right, like that sort of adds another layer of importance of these war crimes here being prosecuted effectively, because everybody's watching who's interested, and tries to follow suit. Any thoughts on that?
Daniel Treisman 1:04:16
It's not exactly on this, but it's related. I think what we've heard today is that there are incredible problems, there's there's hope, but they're also incredible obstacles to full legal prosecution of these cases. At the same time, we have, as was mentioned, this mass of digital evidence, really, for the first time, I think, which is out there. We have video of Russian soldiers shipping washing machines that they've looted from houses and Ukraine back to their wives in Eastern Russia. And the people are perfectly identifiable in these videos. So I'm wondering if there is a way to, and I'm not sure who would do it and how exactly, but to create a mechanism that would impose not legal, but lesser sanctions on individuals who've been documented, committing crimes, even if it hasn't gone through the full the courts or anything like that. I'm thinking of things like bans on travel to Europe or the US or maybe even the world, if somebody has been credibly documented to have committed a crime, even without a court judgment, and obviously, that would need to be thought through. But are there things? Is there any hope that I don't know, NGOs or even governments together could come up with something like that? We've seen Magnitsky lists becoming very popular recently to Anish, with asset freezes and travel bans, people who've been involved in humanitarian crimes, torture, and so on, in various countries, violations of human rights, even without them being convicted in any court. So is that a margin that we should be pushing on and suggesting, to governments to NGOs, to use the really documented cases, from all this digital evidence to try and impose some accountability, even if it's not for justice? I'm interested in what my colleagues think. Is that a crazy idea?
Jessica Peake 1:06:30
I mean, Alex is the sanctions expert. So I'm going to put myself into him. But I think it's an interesting idea that there is all of this digital evidence out there that people are doing a lot of work to authenticate or verify as being what it claims to be. I don't know that it can be used in the way that you're suggesting, though, but I'm very interested to hear what Alex has to say about that.
Alexandre Prezanti 1:06:54
Okay, so in terms of in terms of sanctions, I think this stuff is being used for sanctions already. But the sanctions as they are today, have a limited power, and that, you know, they really have a bite. When you have assets abroad, essentially, or when you like to travel around and ski in France or something like that, you know, that's when the sanctions really, really have an effect. When your children are at university or at school in England, and you can't send them money to pay for their exuberant school fees, that's when sanctions have a real impact. When you're some soldier from (town in Russia), and you end up on the sanctions list, and you probably would have never left Russia anyway, I mean, I don't know how much impact that's gonna have. So I think yeah, I think I would answer on the wider issue of evidence preservation. I think, let's not forget that authoritarians, dictators, like, like Putin, they care. They really care about their place in history. I mean, Putin is obsessed with his place in history. He keeps comparing himself to Peter the Great because he wants to be seen as a albeit brutal, successful Russian expansionist leader. And what we have today that we didn't have, during the time of Peter the great is this kind of ability to document evidence on an enormous scale. Everyone, potentially, in Ukraine or elsewhere, has a smartphone with the ability to document something that happened, right? There are ways now verifying those videos that to make them admissible in courtrooms. 10, 20 years from now, there are ways of storing this evidence. Now, all we really need is to come up with a kind of central repository, where we can put all this evidence, analyze it, classify it, and create a real Bible historical record of what happened here today. So that in 100 years, years time, another Putin can't stand up and point in that direction and say, look, let's be great again, let's make Russia great again. Like it was back then, under Putin, because we'll have this history well documented. And I think that is probably the best thing we can achieve right now, you know, and what we should be working on.
Alexandra Lieben 1:09:42
That's a hopeful note. Let us end on that. Thank you very much. Thank you, panel. Everybody, Thank you, the audience for coming here and our online audience as well.
Transcribed by https://otter.ai