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The bill on ratification of the Agreement between Ukraine and the Council of Europe on the establishment of a Special Tribunal for the crime of aggression against Ukraine has already been submitted to the Verkhovna Rada.
Fakty ICTV spoke with the program director of the Center for Civil Liberties, human rights activist Vladimir Yavorsky about how the Special Tribunal for the Crime of Aggression of the Russian Federation will work, whether they will be able to convict Russian dictator Vladimir Putin and his henchmen, and what the prospects for sentences and punishments are.
Special Tribunal for Russia: Where it will operate and who it can convict
— Will this Special Tribunal be able to convict Russian dictator Vladimir Putin and his cronies while they are still in power? How should this happen?
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— There are restrictions on three people in power. Among them are the Minister of Foreign Affairs, Putin as president and head of government. They cannot be convicted when they exercise their powers, because the so-called immunity applies.
Vladimir Yavorsky. Photo: Center for Civil Liberties
A person, when he is not in office, for example, or when he occupies another office, can be convicted by this tribunal. But here the question is also that there is competition with the International Criminal Court.
There is already an arrest warrant for Putin issued by the ICC. In theory, there are no objections to arresting Putin. The only question is how to do it. But for this tribunal, this will be an exception, which obviously became a certain political compromise.
Vladimir Putin. Photo: Getty Images
— Can he issue another arrest warrant for Putin and the top leadership of the Russian Federation?
– This tribunal cannot extradite for arrest these three persons whom I have indicated. If, for example, they cease to hold office, then they already fall under the jurisdiction of this court.
And while they are working and performing their duties, he will not be able to issue a warrant for their arrest. This is a question only for the International Criminal Court, which is considering additional cases. Perhaps there will be some cases against them there.
— Can this Special Tribunal punish the Russian military who killed Ukrainians in Bucha and other cities?
– Again, no, because this tribunal is connected with the highest officials. That is, it concerns exclusively the crime of aggression – this is specific. It examines precisely the question, if one can formally define it that way, of the illegality of an armed attack on Ukraine, that is, the unjustified conduct of war.
The highest officials are responsible for this crime of aggression. We are talking about the highest leadership of the Russian Federation. For example, Dmitry Medvedev (Deputy Head of the Security Council of the Russian Federation, – Ed. ), the highest military leadership of the Cabinet of Ministers, the parliament, the Security Council and other bodies that were involved in this process. We are talking about several dozen, possibly up to a hundred people.
— Can this Special Tribunal examine the case of the mass murder in Mariupol separately?
– It will not consider the cases that took place in Bucha, Yagodnoye, Mariupol or other cities where Russians committed mass crimes. This will not be the subject of consideration by the special tribunal. It is exclusively about the fact of the illegality of aggression.
In fact, this is very important at the international level, because it shows that the Russian Federation is committing illegal military actions. For us, these are obvious things. But today, from the point of view of international law and Russian propaganda, these are unproven facts.
This tribunal can make a legal fact that what the Russian Federation is committing are crimes of aggression. All other crimes will be considered by the International Criminal Court and national investigative bodies.
— Does this Special Tribunal have the jurisdiction to punish Putin’s foreign henchmen, such as the self-proclaimed President of Belarus Alexander Lukashenko, the leadership of North Korea or Iran?
– Yes, there is no full list of who exactly, but it concerns persons who are involved in the crime of aggression. There are various investigations that show the involvement of the top leadership of Belarus, the DPRK and Iran, who are involved in this aggression. They have different roles in this aggression, but this will be considered.
Alexander Lukashenko. Photo: Getty Images
— Should other countries make legislative changes to recognize the jurisdiction of this Special Tribunal? Which ones?
– Yes, after Ukraine ratifies the tribunal's charter. After that, it is planned that other countries will join it. This agreement on the accession of other countries will contain the fact that they undertake to cooperate with the tribunal, in particular, to carry out its arrest warrant.
In addition, I think that this tribunal will also be supported in the European Union. And the states will undertake obligations to implement the decisions of the tribunal. But with countries outside the EU jurisdiction – it is more difficult. As of today, I know that about 35 states were definitely going to support this tribunal.
— Where will the Special Tribunal for Russia operate and where will those convicted by this tribunal serve their sentences?
— The court itself will be located in the Netherlands. There have been many tribunals in the Netherlands. They have common international rules. These people will serve their sentences in the Netherlands.
— Can Putin or other representatives of the Russian leadership be arrested abroad if they move after being charged?
– This tribunal will not be able to arrest Putin in any way. Only if he leaves his post, which is unlikely. That is, other people in the Russian Federation are replaced from time to time. For example, Dmitry Medvedev was president, and now he is in another post, then he can be arrested. But this tribunal will not be able to arrest Putin.
Another important point is that this tribunal can hear the case in absentia, which is a legal term, i.e. without detaining the guilty person. It is possible that the trial will proceed in this way for many people.
— If an indictment or a court decision is made, will any contacts between foreign leaders and Putin, invitations to negotiations, or the signing of documents by him or his representatives be legitimate?
— Today, the International Criminal Court creates the biggest restrictions for Putin. Now he will not go to the BRICS meeting in Brazil, because Brazil has signaled that they do not guarantee security, since they are obliged to comply with the ICC decisions. Today, it is the ICC that creates the most problems for Putin .
International Criminal Court. Photo: Getty Images
What is important here is that the Special Tribunal will be looking for these people for the rest of their lives. When they are charged, they will have to sit in the Russian Federation for the rest of their lives. They will probably travel to several countries that are their major partners.
But in many countries, they will most likely be detained, because Europol will support this tribunal. Accordingly, there will be an international search for all people who are accused by this tribunal.
Special Tribunal for Russia: Will War Crimes Be Considered?
— Can this tribunal recognize the Russian government as illegitimate?
– No. This is already a political assessment, so he will not be able to do it.
— Can he pass judgment on the henchmen in Europe who indulged the Russian leadership?
– If such are identified, then yes. But the question here is not whether they condoned. There are certain forms in which states and others can be involved in the crime of aggression. For example, providing weapons, territory, some other assistance. That is, we need to assess what they specifically did.
If we are talking exclusively about propaganda or hybrid support, which, for example, sometimes exists from Hungary to the Russian Federation, then here, most likely, no. Here it will be difficult to prove that this is part of the crime of aggression.
— Will Russian pilots and war criminals who drop bombs, launch missiles and Shahed drones on Ukrainian cities be able to face this tribunal?
— No, this could include, for example, the highest military leadership of the Russian Federation. Not only the commander-in-chief or the army commander could get in, but also certain lower ranks. But in any case, we are not talking about the perpetrators of specific crimes.
As for the perpetrators, this is exclusively a question for the International Criminal Court and national investigative bodies. In particular, there is already a criminal case against Shahed, which is in the ICC. There are two arrest warrants. I think there will be more.
— Recently, Ombudsman Dmitry Lubinets reported another war crime by Russia — the execution of a Ukrainian prisoner. Can this Special Tribunal consider such war crimes in the plane of giving an order?
– This Special Tribunal only deals with the crime of aggression. Other crimes are not included because there are too many of them, and this tribunal would work for 100 years.
For example, this issue is already exclusively within the competence of the Ukrainians. I know that at least two trials are currently ongoing precisely on the shootings of the military, when it was possible to identify the people who committed the shootings.
And what's more, they were captured by the Ukrainians. That is, they are right in court, they are being tried for real – this is not a trial in absentia.
