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Lawyer Scott Martin on the prospects of the trial of the Russian authorities

After the destruction of a dam at a hydroelectric power plant in the Kherson region, Ukraine appealed to the International Criminal Court (ICC), providing initial information on the site. By this date, the ICC continues to investigate crimes related to the Russian invasion of Ukraine. The court has already issued arrest warrants for Vladimir Putin and Maria Lvova-Belova for removing Ukrainian children from the occupied territories. International lawyers suggest that the court will announce new prosecuted cases in the near future.

Scott Martin, a lawyer, Managing Director of the law firm Global Justice Advisors, and co-founder of Global Rights Compliance, believes that the key to success in investigating such cases and achieving the necessary accountability for the war in Ukraine is international cooperation and dialogue. Scott previously served as co-counsel at the International Tribunals for Rwanda and Yugoslavia, the Special Court for Sierra Leone and has cooperated with the International Criminal Court for many years. In recent years, he has helped Ukraine with law reform and advised many Ukrainian bodies, including the Prosecutor General’s Office, State Security Services, the Armed Forces of Ukraine, and others. After the outbreak of the full-scale war, Mr. Martin became one of those documenting the crimes of the Russian army on the territory of Ukraine for the International Criminal Court.

In an interview to Verstka, he spoke about the likelihood of bringing Russian officials to justice, possible new criminal cases at the ICC, and the belief in justice and reform of the international legal system.

ICC investigation: new charges and prosecution of Putin

— Mr. Martin, after the destruction of the HPP dam in the Kherson region and the subsequent flooding, Ukraine asked the International Criminal Court to investigate the incident. Can we say that those responsible for the man-made disaster should be held accountable not only for the destruction of civilian infrastructure, but also for the damage caused to wildlife in the region? If so, then how can this happen, what mechanisms do we have today?

— The attack on the Kakhovka dam endangers thousands of people and creates yet another humanitarian emergency. I don’t know if it’s a coincidence that it happened during the early days of the perceived counter-offensive by Ukraine, but it wouldn’t be the first attack on civilian infrastructure in an effort to slow down the Ukrainian Army and the successes it has had defending its country. This attack also causes significant environmental damage (including to wildlife) and should be investigated as such.

Kakhovka dam

Concerning accountability mechanisms, the ICC would be an obvious choice and I anticipate that prosecutors will be investigating the attack as an attack on the Ukrainian civilian infrastructure. It could also be investigated for causing widespread, long-term and severe damage to the environment (including wildlife) which is clearly excessive in relation to the concrete and direct overall military advantage anticipated — a crime under Article 8 (2)(b)(iv) of the Rome Statute.

The Ukrainian Criminal Code also permits prosecutions of the crime of ecocide. In addition to the above, they could rely on this provision of the code. Further investigations will clarify the best approach to take.

— Also you were one of those who worked with Ukraine to bring its legislation in line with international law and speed up the ratification of the Rome Statute, the main ICC document. Ukraine now recognizes the jurisdiction of the ICC for crimes committed on its territory — but still has not ratified the Rome Statute. Why do you think that is?

— I wish I could answer that clearly and hope that they will join the ICC soon. Concerning legal reform, we anticipate that all relevant legal measures will soon be further improved to ensure maximum accountability for international crimes perpetrated. I’ve been working on that with other organizations like the Center for Civil Liberties led by Olexandra Matviichuk who won the Nobel Peace Prize, and with Parliamentarians for Global Action for seven years.

— And if we talk about the territories where the crimes were committed, does the question of how Russian authorities define their borders has any legal significance?

— So, if a Russian individual is indicted and arrested and brought to The Hague, they are generally free to make any legal arguments they wish to make. Subject to certain restrictions, that’s what providing due process to an accused is all about.

However, the prevailing view is going to be that the internationally recognised borders of Ukraine are Ukraine. This is not controversial. And if Russia wants to claim the annexed territories as theirs, they have the right to do so. But I can tell you the prospects of success is nil — no one accepts such an argument

— As I understand it, the court is currently investigating the case of the removal of Ukrainian children from the occupied territories, but at the same time it continues to collect evidence of other crimes. The ICC also has recently presented an online platform where victims, witnesses, lawyers, and journalists can send information about possible crimes committed. Despite the openness of the court, as I understand it, not all documented evidence can eventually be accepted. Is this the case and what is important to consider?

— Well, not all of the testimonials will be acceptable. Part of my work is to inform civil society actors and any other interested individuals to follow certain core practices to ensure, promote and maximise the probative value of collected information. A few tips include:

— understanding the elements of a particular crime and gathering information in furtherance of these elements in your investigations;
— asking additional questions to shed light on how the crime or element of the crime took place;
— seeking to corroborate information with other sources;
— seeking to gather first-hand testimony

Myself and many othersI have provided a strategy for doing this for human rights defenders so that they can follow a very clear process for conducting solid investigations. So that we can maximize the value of all the efforts that we’re taking.

— The case of Rwanda and Mr Kabuga shows that justice can be done anytime. But it remains questionable if Putin himself will be brought to justice. Do you think it will be possible to talk about justice if Putin avoids responsibility?

— I understand the sensitivity of the question. I do think the shortest answer is that if President Putin himself is not prosecuted, there will be questions about the viability and strength of the international criminal justice system. However, I do think that we can achieve a modicum of justice if we were able to prosecute other criminally responsible persons, including heads of the Ministry of Defence and other responsible individuals within the ministry, the GRU, FSB, senior commanders on the ground responsible for the perpetration of crimes of tens of thousands of innocent persons. Kadyrov, for example, should be investigated.

Maria Lvova-Belova. Photo by RIA Novosti

Or, for instance, Maria Lvova-Belova. I suppose the ICC identified her as the most responsible individual for the creation and implementation of the policy and President Putin for the supervisory or superior authority and failure to exercise sufficient control to prohibit such crimes from taking place. So I’m a bit of a tea leaf reader here. But these tea leaves, or what I read, were born out of the experience of reading tea leaves for 20 years, so to speak.

— In a sense, she was just implementing an order.

— But that order was criminal, and you have an obligation to reject illegal orders and refuse to obey them.

— What about the fact that the ICC only starts a trial when the defendant can stand trial in person?

— Yeah, that’s the rule. But these indictments don’t generally go away. And that’s important. And I think we can see the value of the indictment of President Putin through an upcoming event that’s being discussed — the BRICS summit in South Africa in August.

The indictment has led to a diplomatic confrontation of sorts where the South African government, if it was to welcome President Putin to their country, would have an obligation to arrest and hand him over to the ICC.

But broadly speaking, we have to exercise some patience for the arrest warrants leading to the arrest and prosecution of indicted individuals. Sometimes that requires a change of government. But there are also these incidental effects such as limiting travel of indicted persons that show the strength of an indictment. Such issuance typically leads to diplomatic isolation. And that diplomatic isolation is something that reputationally the Russian Federation is known for not being very happy to be a victim of.

— Now we are talking about officials, bureaucrats, and executives. But it is equally important for victims to see justice done to those who committed these crimes with their own hands. I’m talking about soldiers and military commanders on the ground.

— No perpetrators should be left unpunished and no victims should be left behind. However, the ICC has three courtrooms. They usually handle the cases of persons with the greatest responsibility. So we need a collective, internationally co-operative effort to investigate, prosecute and adjudicate the crimes perpetrated by all other criminally responsible individuals.

If the ICC cannot handle all cases against all criminals, that does not mean that they will not need to be investigated at all. There must also be national courts, including Russian courts, which must also look for and convict those who commit crimes. Of course, Ukrainian courts and courts of universal jurisdiction as well.

The Genocide Case: Probability and Background

— Journalists and Ukrainian politicians regularly ask about the possibility of new charges against Russians. Are there any preconditions now that may indicate that the ICC intends to initiate new cases?

— Yes, there will be. I can identify what I think will be certain to be brought, and I think it will start with crimes against humanity. I think that there will be a demonstration of a widespread and systematic attack against the civilian population for the crimes against humanity of murder, deportation or forcible transfer of the population, illegal imprisonment, torture, persecution. A multitude of war crimes, which I won’t get into specifically, but I think I can identify at least 15 different ones. And perhaps genocide. That’s at the ICC. The special tribunal of the concerning aggression will also prosecute that crime, I think, when it’s established.

— You mentioned the crime of genocide. How realistic do you think this accusation sounds in the context of today’s war? Over the last year we have often heard that the ICC is very cautious, even reluctant, to deal with cases of genocide.

— I think that in the first warrant on the unlawful transfer of children we have to see the facts. And if the facts show that it’s the crime of genocide — the transferring of children from one group to another group, I think we could make a strong argument with the right amount of evidence produced to prove genocide.

— But in this case, the ICC also brought a case under Article 8 of the Rome Statute on War Crimes. In addition, in the crime of genocide, it is important that intent isi proven. As our past interviews with human rights activists and international lawyers have shown, it is the search for intent that is the most difficult task.

— You’ll have to prove the intent in war crimes and crimes against humanity cases, too. And I do think that will be what shows itself in the context of the criminal trial and beforehand during investigations. This may be difficult to prove, but I still want to draw attention to the attempts to erase Ukrainian identity from the first days of the war — even before February 24.

Look at the removal of Ukrainian flags, the arrests of anybody who shows support for Ukraine, the change of the spelling of the cities they take hold of. Look at the Mariupol site these days, the changes in the school curricula. To me, that sounds like an intentional, systematic attempt to erase Ukrainian identity. With other factors satisfied, it may be possible to prove genocide.

But again, let’s investigate it and let’s follow the processes that make the international community proud. In the sense of following norms that every individual is entitled to under international human rights law. And let’s see what happens from there.

ICJ and Aggression Tribunal: Will There Be a Decision

— Let’s also discuss Ukraine’s application to the ICJ, which was filed a few days after the start of the full-scale invasion. I understand that in 2017, Ukraine already tried to bring an application to the UN court against Russia. Why did nothing come of it then?

— So in 2017,the Government of Ukraine initiated a case against the Russian Federation alleging the violation of certain provisions in two treaties that the Russian government accepted the jurisdiction of at the ICJ. They also filed another case in February last year regarding the correct interpretation of the Genocide Convention. I wouldn’t say either have failed yet. They just haven’t yet been fully decided upon.

— But the decisions of the International Court of Justice, as I understand it, are declarative in nature and generally do not provide for any liability for the parties. Can you explain then what their necessity is and is there one?

— Welcome to International Law. However, Russia signed the U. N. Charter. It’s a member state of the United Nations. It has agreed to comply with the decision of the court. In fact, both Russia and Ukraine have recognized the jurisdiction of the International Court of Justice.

History shows that usually the rulings of the International Court of Justice are complied with. But in this case it may not happen.

— But a court ruling will not stop the conflict.

— No single system can stop the conflict. That’s why we work at the local, regional, national, and international level. We work politically, diplomatically, and with relevant accountability mechanisms.

— One of these methods, as far as I understand, is the initiative of a tribunal for the crime of aggression. Ukraine came up with the idea of organising such a tribunal last year. Since then, discussions have been going on about what such a tribunal could be based on. By this day, three ways of its organisation have already been proposed: with the help of the UN, with the help of a third country, and with the help of the ICC. But as I understand it, all three options have legal obstacles. What do you think of this initiative and how do you see it being implemented?

— It will be created. That would be the four-word answer, in my view. The longer answer is figuring out how that will happen. Anton Korynevych is leading this effort for the Ukrainian government and he regularly posts on all those positive steps forward. But creating a new court takes time and requires the collection of a lot of diplomatic support. I think that the court, though, will be created through EU support and perhaps something along the lines of the Kosovo tribunal, or it’s called the Kosovo specialist chambers, I think.

At the same time, if something needs validation and support by the U. N. Security Council, it won’t happen in this context, or at least we can find it highly unlikely to happen. Because we’ll have opposition from at least one country — the Russian Federation. I would think that any court or tribunal established would need to find ways to work legally without needing the UN Security Council support.

Faith in Justice

— I have a question about human rights in Russia in connection to your work with Vladimir Kara-Murza. Do you think that Russian human rights institutions still have any international contacts? After breaking up with the ECHR, some have expressed their hopes for the UN HRC. Is it realistic?

— So I do work as a legal adviser to Vladimir Kara-Murza. I certainly hope that there will be reasonable communications, but I won’t speak further. I of course hope that while no longer having a membership in the Council of Europe and, by extension, the European Court of Human Rights, Russian institutions will keep cooperating inside U. N. institutions. But I’m doubtful.

— Where does this hope come from?

— Hope reigns eternal. But beyond that, you always want to be able to have a conversation, to discern whether a path is possible. And if there’s not, then there’s limited choices that remain. Diplomatic discussions should always be a priority in all situations. And I don’t think that Russian human rights institutions should give up such contacts.

I’m not suggesting that in any of these contexts we give in to the demands of the Russian Federation in any way. I’m just saying that such communication tends to be a valuable approach to problem-solving, rather than the alternative.

— Finally, let me ask you about your belief in justice. On more than one occasion, we have discussed with lawyers and human rights defenders the fact that international law and international institutions are today unprepared to confront aggression. Do you think this is a problem and the whole machine needs reformation?

— Yes, that’s a problem. However, under certain conditions the ICC now has jurisdiction to prosecute aggression. It doesn’t apply in the context of the Ukrainian situation, though. But this is how law works. In particular, international law is evolving at a pace that is sometimes not as fast as we would like. But I believe, personally, that aggression does need to be prosecuted. And so we need to move forward as pragmatic idealists and advocate for such changes to take place in the international arena.

— Your main focus is the protection of human rights. As I understand it, the protection of human rights is based on the belief in justice. Now, during the war, this faith, I think, is being eroded in both Ukrainians and some Russians. What work should be done to restore this faith, in your opinion? Do international or national institutions have the capacity to restore this belief?

— Well, the best thing that can be done is to enact more enforceable international law. Also, the process of enforcing human rights by its nature is retroactive. Accountability for violations of the Rome Statute, for violations of international humanitarian law, and human rights law is still going to happen. No, it didn’t work in a preventative way. No, it didn’t perhaps work as a deterrent. But I’m not sure we can say that we’ve had an eroded belief in justice yet, since from an accountability perspective, it is going to work.

And I certainly feel the pain and the feelings of aggrievement by the Ukrainian population in particular, and by Russians who also feel no sense of justice in their domestic situation, or at least many of them. But we have to try and restore this belief, because humans operating in societies have to believe that there is justice. Otherwise, that loss of hope can have such a deteriorating effect on society that it’s hard to imagine.

Cover by Dmitry Osinnikov

Regina Gimalova