[Music] Welcome to the George Stiction's podcast. In this episode, Dr. Gabriel Gheveskaita, researcher in international criminal law at the Asset Institute, interviews as an excellency Dr. Anton Kronevich, ambassador-at-large at the Ministry of Foreign Affairs of Ukraine, when establishing the special tribunal for the crime of aggression against Ukraine. Enjoy. [Music] In early 2022, with battles raging at Ukrainian frontlines and cities across Ukraine being targeted with drone and missile attacks on the daily, a group of lawyers and diplomats started meeting in urgent sessions online and across European capitals. At the center of these meetings, a Ukrainian international lawyer trying to convince European diplomats to build something that has never existed before, a special tribunal to prosecute one crime that started it all, the crime of aggression. Today, we're speaking with Dr. Anton Kronevich, ambassador-at-large and director for international law at the Ministry of Foreign Affairs of Ukraine, who led that impossible mission and is headed to worst success. Dr. Kodynovich, thank you very much for joining us here at the Asset Institute. You are by now a familiar figure for many of us working on Ukraine and on broad international law topics. How would you describe yourself and your work at this moment? Well, good afternoon. It's a real pleasure to be here. Thank you for this opportunity. It's always good to engage with Asset Institute. I would describe myself as an international lawyer, Ukrainian national, who tries to do whatever possible to ensure accountability for Russia's crimes committed on our soil. For me, like being an international lawyer, for whole my life working with this issue, it's very natural to be now part of Ministry of Foreign Affairs of Ukraine, a legal team, and again, to do everything possible in order to bring Russia and Russian citizens to accountability. So this is my job. And I think there is no better place for Ukrainian national, who works with international law than to work for our nation, for our country now. Thank you. And that's a fascinating range of work that you're involved in. But I'm also curious about your journey to this point. You mentioned you've been interested in international law all your life. Was international law always the plan or the life-decision direction that you perhaps did not expect? Well, you know, it was just like studying international law at the university in Kiev. Why I chose international law? Well, you know, when you're in high school, some decisions come up to your head. Well, I thought that international relations diplomacy is something interesting. But I chose international law as something rather concrete and precise, what you can feel and what you can understand, because I always was fond of law. Then I worked as an assistant and an associate professor in the university, and since 2014, since the start of the Russian aggression against Ukraine, I started to work with a lot of Ukrainian NGOs, prosecutors office, law enforcement agencies, in order to give them some knowledge and basic understandings on international communitarian and international criminal law. Because of course, when the aggression started in 2014, Ukraine's legal field was not ready to the things which came up. So that's how I started to be engaged in that international legal work on Russia's war against Ukraine. And then in 2019, I was offered the position of the president's representative in the autonomous republic of Crimea. So again, international law was in the center of this work because of the occupation, because of the human rights issues, internal displaced persons, so international law was there. And then in 2022, after the outbreak of the full scale invasion of Russia, I moved to the Ministry of Foreign Affairs, because it was also a proposal and I suggested that with my probably skills, I will be now more appropriate in the Ministry of Foreign Affairs, legal steam than in any other place. And on this last period, since the full scale invasion of February 2022, you have already been working on multiple legal avenues trying to find some justice and accountability. Was there a moment when you realized, or how did you realize that there is a gap and that the current setup of international law or national law will just not be enough to hold Russia accountable? Well, first of all, I think we in Ukraine felt that a current architecture of international law is not enough since 2014, because when we take the spirit from 2014, until the beginning of the full scale invasion, we see that we try to use and we used each and every possible international court and tribunal to bring Russia to accountability. I see J, I see C, C, HR, it laws are Beatles tribunals on the laws of the sea, established under unclose. So we are all there, but we felt that there was some gaps in particular the gap as accountability for the world itself. And then in 2022, in the end of February, our big colleague and friend, Professor Philip Sands, wrote his master piece in financial times, the op-ed about the needs to establish a special tribunal for the crime of aggression, because this is an obvious aggression, and then we started to work with him and other big international lawyers, big names. And this is how we actually appeared with this idea in the beginning of March 2022, that actually this is a very time when we need to try to ensure accountability for the crime of aggression. This is a moment, because otherwise, I mean, what are the principles of international law about? What is the principle of non-use of force? What is the concept of aggression and its illegality, whether they do not exist at all? So I think it's an existential moment. It is now still, and it was back then in February, March 2022. And this is how this idea emerged. So again, thanks to a lot of great professionals like Philip and others, we are here where we are now. And of course, it is also an existential moment for international law because of the nature of the crime of aggression itself. For listeners who may not be familiar with the crime of aggression, this represents the criminalization of war itself, distinct from war crimes which address conduct during uncomflict. Establishing the aftermath of the world wars, the crime of aggression holds individual leaders accountable for planning, preparing, initiating or waging wars of aggression that violate international law. It was first applied at the Nürburgr tribunal against Nazi leadership for what were then called crimes against peace. However, no prosecutions for this crime have occurred since Nürburgr making it one of international laws most significant yet underutilized legal concepts. So we know that this particular crime has not been prosecuted at international level since the international military tribunals. And Anton, maybe you could help us understand why it is so important to hold military and political leaders responsible for this specific crime in contrast to other international crimes. And it would also be great to understand why that cannot be done at the national level in Ukraine or at the international criminal court. Well, first of all, when we talk about the need to ensure accountability for the crime of aggression, we do not say that other international crimes are not important. Let's say they are important and accountability for them must be insured. But for other international crimes, in particular genocide, crimes against humanity, war crimes, we have national courts of Ukraine, of other states, and we have international criminal court which conducts investigation. So there is this gap only for the crime of aggression. So that's why our efforts are concentrated on it. War crime is a serious violation of international communitarian law committed by Russian soldier officer on our soil, like killing civilian, raping civilian, making a strike on residential area or on objects of critical infrastructure. So the perpetrators should be brought to accountability. But the crime of aggression is the crime of war itself. So ideologically, aggression is planning, initiating, and vaging the war against another state in the violation of the UN Charter. We need to get accountability to ensure accountability for war crimes. There are now, I believe, around 100.
160,000 of investigations on war crimes only in Ukraine and other states also work on this and ICC works on this. But we need also to ensure accountability of those Russian leadership, political and military who are engineers of this aggression. So if we do not ensure accountability for the crime of aggression, it will be the case that the elements of this war, accountability for them is in short in the form of accountability for the war crimes. But the reason, the very reason why the war started, why the first war crime appeared back then in 2014 will be the accountability for this will not be in short. So I think this is really very important to touch the root cause, the primary crime here, crime of aggression. In relation to the ICC, our initiative and we are very open and public about that, our partners know that Ukraine actively and effectively cooperates with the ICC. We just recently ratified the Rome Statute and became the 125th Member State on the 1st of January 2025. ICC conducts investigation on the situation in Ukraine as of now has issued six service warrants. But under the Rome Statute, ICC cannot now exercise jurisdiction or was a crime of aggression because for them to be able to do that, either the Security Council of the United Nations should refer situation to the ICC, which will not happen in our case. We understand it very precisely. Or both states should have ratified both the Rome Statute and Kampala Amendment. Ukraine did so recently, but Russia will not do this in the current infrastructure of Russia's settings. So that's why ICC cannot exercise jurisdiction for the crime of aggression. That's why we need a special tribunal. So establishment of a special tribunal, an independent court is the only possibility to ensure accountability for the crime of aggression against Ukraine. And this is not to impede or to hamper ICC. This is just to complement ICC's activities on investigation of the situation in Ukraine in relation to the one crime on which ICC cannot exercise jurisdiction, crime of aggression. So we are in a legal limbo if we take ourselves a couple years back to the beginning of 2022. You then had the idea, got the idea of the tribunal from Philip Sands, from other international lawyers, and the first things of thought were planted. But what were your first steps towards actually establishing something that at the time did not exist? Well, of course it was a challenge and it were challenging days because we heard a lot of voices saying like, why are you trying to establish something? Use the mechanisms and tools which you have. Nothing can be established in international law now. It's not the way to move forward. So I'm really glad that when I look back then at Spring 2022 and when we find ourselves now in summer 2025, that we change this perception that really a lot of our partners now are sure that this tribunal must be established. And that the question throughout this year was not if but how. So not if the tribunal should be established but how to do this in a proper way. So we started with first of all, we we we guess are the good team of academic advisors, we were grateful for them. Like Philip Sands, DAPOQ and the Klaus Kress, Karim Magdougal, others. So we work with them, they gave us valuable advice. Then we started to advocate, I would say, the idea and concept of the tribunal. So we started to get the political support in the form of resolutions of parliamentary assembly of the Council of Europe, European Parliament, National, Parliament experts throughout the world. So we started with advocacy, I would say. And with this in several months, we brought this issue high on the agenda and it was everywhere I would say in international legal field. I think our our colleagues who listens to this who listen to this felt that. And then I think in particular governments, because of course establishing such a thing is a governmental thing. I think they felt that the issue is high on the agenda and the and the issue should be worked out carefully was was a necessary attention to it. So I think through this advocacy, we got this attention of governments. And then we started to work with them and in particular, we started the work of the core group. So that's I think 2022 was mainly spent for advocacy with in the beginning of 2023, starting the work with the governments in order to define how the tribunal must be established. And you ended up building a coalition of 40 plus countries, the famous core group. Do you take us a bit through the work of the core group? How did it develop and how did you go from this advocacy stage to working on really practical matters? So advocacy all the time continues. So it hasn't stopped. But I would say closer to the end of 2022, we understood that some new elements must be at it and that we need to start to work with the governments on this issue of our partners states. We also understood that working bilaterally would be quite hard because it will spend a lot of time. I mean, resources to talk bilaterally and this may not bring us to the result. So that is why we suggested this concept of core group meetings, which core group is a totally informal gathering. So it's not a decision making body. It doesn't have any, I mean, protocol of the work. It's just the gathering of friends, of colleagues who were in favor of the idea of establishing the tribunal. Some of them thought that tribunal should be established that way, some of that in the other way. So different thoughts, but they all shared the value of working on this matter. And this is how it emerged and we convened for teen in person meetings. This format proved to be productive. The thing that it is informal really brought us a lot of fruits because people felt comfortable during these discussions. A lot of things were kept under the closed doors. They knew that the atmosphere is trustful and that we can speak freely and openly about concerns or ideas. So I think that this was a really very good choice. It proved to be a very good choice of the platform to work on such a sensitive, as you understand, issue, as working on the first tribunal on the crime of aggression in more than 80 years. And that is a very human aspect of international law and perhaps something that gets missed when we only focus on what steps are taken or what decisions are made. I think when we had here in the event on the matter with participation of great lawyers as always, I believe we said that a lot depends on personal contacts, personal trust, personal confidence. And I really trust and believe and I see that within the core group we built this atmosphere, this microclimate. And I'm really proud of that, that this brought us to place where we are now. And you were at the centre of it all at all of the core group meetings. So going back to the personal aspect of confidence and trust, did you ever have a feeling that this may not work out? Yes. So first of all, I really always felt that the core group is the right thing and that we are very grateful to people who were present, who were getting ready to each and every meeting, who worked, drafted papers, making suggestions. So this was really very important. But of course throughout this time, throughout 14 meetings, we really felt some time that we are coming to the deadlock, that we, it may be the case that we will not have the solution. And I mean, when we started the work of the core group, we didn't know actually to which result we will come up to. So yes, there were moments when we felt that it would be hard to move forward, but indeed in each of these moments. We were sure and confident, I mean, at least on the side of Ukraine's legal team, but I'm sure that others legal teams also, that we need to move. We don't need to think.
that something is impossible or something will be lost. We need to still try to get solution. We need to try to get the understanding how to do the thing. And I think that this really helped and assisted so that we, no matter what happened, no matter whether we felt that that lock may be reached or whatever, that we always were concentrated on doing the thing. And we believed in that. So I think this is how it emerged. But of course, when you work within informal platform, again, I would reiterate on the first Tribunal of the Gram of Aggression in 80 years, of course, you understand that you may not be sure of the result. So this is not like we didn't have a particular roadmap, like you know, with elements or with steps and with timelines because it was impossible. On such an issue, you may not know when you will have the solution and what will be the solution. And again, we understood that it wasn't certified that we would find the way forward. But we are where we are. And again, it is because of our partners, dedication, devotion to that matter. I believe that many of them, throughout this year, really believe in this matter and believe that this should be done. You also mentioned earlier that there were some different solutions and we also saw it in the public space, right? Different models being advocated. In terms of designing the model that might be in place soon, what were the options and what were the disagreements to the extent that you can talk about it, just to illustrate how you got to the model that we have now? Yes. So, of course, we started the core group meetings with discussion of the first thoughts and ideas on what the model of the Tribunal may be, how the Tribunal may look like. Some states advocated for the Tribunal, which would be based on an agreement between Ukraine and the United Nations, to which the UN Secretary General will be authorized to enter into on the basis of the United Nations General Assembly Resolution. And other states suggested that maybe the so-called hybrid model may be appropriate. So we mainly started with discussion of these two versions, two models, two options. On the first one, the so-called UN model, colloquially, there were states who thought that general assemblies, powers, do not allow for this to happen, in particular in relation to coercive measures in relation to the state, member state of the UN, which doesn't participate in this effort. So we saw that we wouldn't have a big support which would allow us to move forward with that. Then the second option, so-called hybrid option or internationalized Tribunal, to build the Tribunal inside Ukraine's legal system, either as a separate independent court or either as a chambers within the established court, like the Supreme Court, for instance. This wasn't okay for many states, including us, Ukraine, because for us, first of all, it was ideologically important that the court doesn't render decisions in the name only of Ukraine, because this is not a matter of some kind of, you know, local, small, armed conflict between two states. This is a matter of international law and detention of international community. So that's why we believe that the court should be an international organ. It should be subject of international law. It should possess international legal personality and capacity. Moreover, as of now in Ukraine, we have the martial law enacted because of the war. And during martial law, the amendments to the constitution are impossible. And I would say that even without martial law, there is not a big appetite, you know, to amend the constitution in such harsh times. And under the constitution, the establishment of the extraordinary, special courts is prohibited. And the second thing, given more important, the judges must be the nationals of Ukraine only. So within the establishment of this so-called hybrid or internationalized model, inside Ukraine's legal system, we would be able to have only Ukrainian judges. Which again, is not the way how we look at the things, because we believe that international should take part in that, to bring international legitimacy and credibility to the process. So that is why this option also did not fly. And then we reached some kind of, I wouldn't say that log, but the moment of trying to see how to move forward. And then our colleagues from EU, in particular, Professor Hofmeister emerged with transfer of proceedings model. It assisted a lot. And we are grateful to Frank and his colleagues, because it gave us an understanding that there may be third options. And we need to try to keep trying to find them. And actually, transfer proceedings option also didn't fly for some other reasons, because of the closeness to Ukraine's legal system. But in the end, the solution was found on the basis of the, to establish a tribunal on the basis of Ukraine, Council of Europe, by lateral agreement. So this is how it was briefly. And again, I think that understanding that on first two options, it will be hard to move, brought us all to the understanding that we need to be creative. We need to look with more open eyes, maybe on the situation and try to find the way forward and the option, the, the model, which would suffice. And with which everybody in the core group would be able to live with. Even if not preferable for everybody, but to be able to live with. This is a formula which was used. And of course, then it's understandable that it took over two years when you have options that work before that we perhaps not entirely applicable for the Ukrainian situation, options that were not desirable for Ukraine or other nations, or perhaps legally incompatible, to arrive where we are now at the tribunal model that was formerly endorsed a month ago. And that is particularly interesting because it's innovative and so far still shrouded in the secrecy. And that's even more attractive to us as lawyers and as listeners. Could you perhaps explain this model, the basis itself? How is it going to work? What is the jurisdiction? And I will follow up on some of these aspects as well. So yes, this model is innovative. But I think we all should understand that this tribunal as pretty much any other tribunal will be special, will be not looking the same as other tribunals. So this Russia's aggression is really a unique situation. So that's, that is why the tribunal will be based in quite a unique way. So for us, it's not a problem. It's okay that tribunal is based, hopefully, will be based on the basis of the novelty model which wasn't used before. So for us, it's okay. We will feel fine with that. So the tribunal will be based, as I said, on the basis of bilateral agreement between Ukraine and the Council of Europe. I believe it is important because Council of Europe is the biggest regional organization in Europe. It included Russia as a member state, both in 2014 when the aggression started and in 2022 when the full scale invasion started. So Council of Europe, I would say, has both legal, political and moral grounds to work on Russia's accountability. Moreover, there is nothing in constituent documents of the Council of Europe in particular in the state, which prohibits Council of Europe to do something in criminal sphere. Council of Europe doesn't have criminal jurisdiction, of course, but it can be the part of the processes. So the constituent document will be agreement between two parties, Ukraine and the Council of Europe. And the statute of the special tribunal, the main document for the tribunal will be annexed to the bilateral agreement. It will be in here part of the bilateral agreement. And there will be third document in large partial agreement, EPA or EPA, the documents which are included inside the Council of Europe. So this is a quite unique document, the Cross-Bruzburg thing. And by this EPA, the management committee will be established, something like a smaller assembly of state's parties, by which states will be able to participate in tribunal's life. So three basic documents, bilateral agreement between two parties, statute next.
it and enlarge partial agreement. Again, by lateral agreement between Ukraine and the Council of Europe, so by states participating in the EPA, we will get this legitimacy and credibility and participation of other states in this endeavor, so that it's not only endeavor of Ukraine and the Council of Europe. So three basic documents. There is also force document, which is also very important. We will still work on it. It's called draft template cooperation agreement, which we hope will finalize our work on, and it will be used by states to conclude cooperation agreements with Tribunal when Tribunal is established. And again, we think that this is of paramount importance because now cooperation is an elephant in the room. It's part and parcel of international criminal law. So this force instrument, we believe, is also important. So this is like the legal grounds for the Tribunals' work. In relation to the main Tribunals' features, if I may say so. So the Tribunal will be a sole standing subject of international law. It will not be part of Ukraine's legal system or legal system of any organization, whatever it will be, a sole standing body. It will have international legal personality, international legal capacity to enter into agreements with states, with international organizations, with private entities, contracts. It will be based on territorial jurisdiction of Ukraine, but this is okay for us because Tribunal is established by, by literally, agreement between Ukraine and the Council of Europe. And the Council of Europe doesn't have criminal jurisdiction. So jurisdiction must come from somewhere. It cannot come from the heavens. So that's why territorial jurisdiction, meaning that this is a basis for its jurisdiction. Tribunal will use international definition of the crime of aggression in Shvine, in Article 8(b) of the Rome Statute. But there will be another additional threshold that the act which occurred should satisfy both the threshold of the act of aggression from 8(b) and the war of aggression. So the both thresholds should be met. There will be no functional communities for Tribunal. Tribunal will be able to have full trials in absentia. We believe this is a very important feature of the Tribunal because we tried to invent the thing which would be able to move forward the stage of issuing arrest warrants. And I believe that for our nationals for Ukrainians it is really important to see that it's not only arrest warrants but it's also verdicts the judgements. So we are also thinking that there should be some residual mechanism possibly established. But of course when we talk about trials in absentia, of course it should be based on fair trial rights. Totally in accordance with the CHR practice and the provisions of the European Convention on Human Rights. So we can speak more about that. We, I think, with finished up with a best thing which we could have established in this particular situation, understanding that many states have different views on the crime of aggression itself. And for many years crime of aggression was something like unfoundtreeble of international criminal law if I may say so. So I think that, and I hope that documents will be soon publicly available for us. I mean we are fine. We are, we always advocate for the opening of the documents. We are fine with that. We have nothing to hide from the audience. So I think that everybody will be able to analyze them and to see that this is really a good thing, effective legitimate and the best thing which we could establish. When I look back at 2022 and when I see what we reached now in 2025, I think that we did a good job with such a sensitive topic. Also going into the preparation of the tribunal, the work involved perhaps also allows us to better understand the points that would be raised as critical or as insufficient, which of course will still be raised and we will keep discussing them. And one point I would like to follow up on is the question of victims. So there is a jurisdiction using its national definition for aggression, but we have not had much jurisprudence on who can be recognized as victims of the crime of aggression. So that will be a choice. What are your views on this specific aspect? And of course only the implementation will also show whether all of these articles pan out the way they were intended. We had the relevant discussion on this matter because of course we understand that international criminal law develops in such a way that it includes active role of victims' participation. So and we Ukraine, we are totally in favor of that. On the other hand, we see and there were a lot of thoughts also within the court group discussions that crime of aggression is a very special crime and that the victim of the crime of aggression is actually the whole Ukraine, the whole nation, the whole population. So how to ensure the victims' rights and who should be defined as appropriates representative of victims. So we worked quite some time on this inside the court group and we found a solution. So there was a special article in the draft stage on that. When the documents are publicly available, I hope that people will analyze it and there is a basis for victims' participation which we believe is a good solution and which is somewhere in between of two positions of the most active victims' participation and the position that the crime of aggression is a very special one and it doesn't need such an active participation of victims. So it's inside the draft statute and it's also quite innovative, I would say. There are several other aspects of the model itself that I find quite interesting. And another question that I have is what is the role of the prosecutor, what will be the role and will it be an international prosecutor or a national of Ukraine? What was the choice there? Well, you know, I think that this dichotomy of whether the court is international or not, what is international court. I mean, for legal studies and articles and textbooks, this is good. But I believe that for practice, it's more important that the thing is effective. So this is the thing. In relation to the prosecutor and also the judges, there are no limitations on nationality. So it can be whoever, national of any state. My personal feeling and view, but this is only the personal feeling and youth Anton Koronevich, is that we need an international person on the position of a prosecutor because again, because of the legitimacy, credibility and other things. But legally, anybody can be the prosecutor. And the prosecutor will have the big power, sent big opportunities. So a lot of the things in the draft statute in relation to the functions of prosecutor, of his or her office, of the judges, they are built on the Rome statute standard. So I mean, we understand that this thinks the standards should be in the basis and the hard of this. So prosecute. So we drafted the model in such a way that the prosecutor general of Ukraine would transfer, would submit refer to the tribunal pretty much anything. Not only proceedings, it can be anything, proceedings like transfer proceedings, materials, information, cases, anything. And when the prosecutor of the tribunal receives this, then the prosecutor, then the jurisdiction of the special tribunal comes into play, starts. It was important for us because we didn't, we believe that we would omit some question of constitutionality with this, if somebody of listeners remembers the constitutional court of Ukraine decision of 2021, that ICC's powers to do something proper or motto is in breach of the Constitution.
So, with this scheme, with this formula that Ukraine's prosecutor general submits anything, will enable and this will enable prosecutor's activity and jurisdiction of the tribunal, we think that we can be effective. And then the prosecutor will be able to do anything. So, he is not he or she is not bound by Ukraine's referral in relation to, let's say, who should be tried, who should be prosecuted, so it will be the sole decisions of the prosecutor. Thank you for bringing the point of national law and constitutional law in Ukraine, that I think for international lawyers, we sometimes miss the point, because we do not know the decisions that were made nationally, especially 20 years ago, in relation to this. But then there's also an interesting aspect of national prosecutions of the crime of aggression that have already occurred. There is also a decision from Ukraine Supreme Court and there's proceedings that are ongoing. How do you see that combination between national and international proceedings for the same crime? Do they have to be compatible? First of all, I would briefly add that in relation to the applicable law, so the applicable law for the tribunal will be international law. And the national law of Ukraine will be used only if international law doesn't give answers to particular questions. So, again, we believe that it is important that international law will be applicable law for the tribunal on first place, let's say. So, in relation to your question, so as of now, there are more than 700 investigations against particular suspects for the commission of the crime of aggression against Ukraine. Russian politicians, military commanders, well, more than 700 persons. We believe, of course, and our patents also feel the same, that the tribunal will not take 700 cases. Tribunals' job is to work on the top of the tree, those who are really the engineers of all these of the host's war. So, maybe tribunal will concentrate on, I don't know, 20-plus persons from the highest Russian leadership, which on the view of the tribunal and on the view of the Ukraine's prosecutor general, when he or she will transmit the documents, materials, information, that they should be tried by international institution, to the national court of Ukraine for reasons of legitimacy and credibility, for instance. And the other guys will be tried in Ukraine. So, it doesn't mean that Ukraine's investigations and prosecutions of the crime of aggression under our article, force-reservant of the criminal code stop. Stop, they will continue. But, as for the most responsible for the crime of aggression, the proceedings will be in the special tribunal. And, of course, when the proceedings will be happening, the special tribunal, the proceedings in Ukrainian courts will be suspended. So, there will be no violations of Nabisinidim principles or any other ones. And that is, of course, understandable as a goal of the tribunal is to hold those most responsible accountable. As otherwise, this new tribunal would not be needed, and Ukraine could prosecute the lower levels in national courts. So, we understand that. But, for those who are most responsible, say, the Kremlin, the Kremlin, the Troika, you do have the personal immunities issue, which is the same issue as Ukrainian courts would have. So, what does the tribunal solve in relation to immunities for these individuals? And, as I left in the room, obvious one. Of course, I mean, throughout this year's, more than three years of work on this topic, personal immunities was part and parcel and the center of every discussion. So, how does the tribunal deal with the immunity in general? So, first of all, as I already mentioned, there will be no functional immunities for the tribunal. So, it's already important, we believe. And it's a good result, because we know that a lot of states consider that for the crime of aggression, I mean, there's a immunity should apply. We don't believe so, we believe that they shouldn't apply. But we know that some states have opposite views and opposite positions. In relation to personal immunities. So, first of all, when you see the statute, when it will be publicly available, you will see that there are no words, personal immunities in the statute. So, it's not used at all. There is not a single provision on anything in relation to personal immunities in the material part of this draft statute. Whereas, on absence of functional immunities, we have particular provision in the material part. There is one article in procedural part. So, strictly procedural. Saying that whenever the prosecutor of the special tribunal makes an indictment against the sitting members of Troika. The judges in the chamber, they should freeze the proceedings for the time, suspend the proceedings for the time, while these three persons are in office. When these three persons leave the office, the proceedings continue. So, the indictment can be presented by the prosecutor to the judges and then suspension for the time they are in the office. But I believe that this should be seen in conjunction with the absence of functional immunities. And also one of the most important things, the possibility for the full trials in absentia for, let's say, number four and down. We believe that when we see this as a package, as a balance, that this gives the relevant answers for both functional and personal immunities. Again, there are no immunities per se, so it's not about impunity. It's about temporal suspension for the time being. And I mean, we consider that this is a good solution. And it gives with the trials in absentia for other people that this gives the tribunal a possibility to be ineffective. As you said, Gabriella, we all want something ideal. We Ukraine also always want ideal things, in particular in this particular case also. But whenever you need to find the solution with which people, governments will be able to live with, we believe that this is such a solution. I think it also reflects quite well, pushing the limits of international law to the extent that it is possible, but still respecting basic principles where perhaps states are not ready to move beyond recognizing immunities for the top levels. And I can imagine it was a tough topic in the negotiation process. Another question that I want to visit, and this will be the last one on the legal basis and the model itself, is there is a possibility for the prosecutor of the special tribunal, as you mentioned, to receive documents or proceedings from the Ukrainian authorities. Is there a similar role for civil society or victim representatives to initiate proceedings or somehow influence proceedings at the special tribunal? We know it is also a challenge that the ICC has faced, where they can receive information from civil society, and at times it is an overwhelming amount of information. But at the same time, it is an integral part of determining, where justice should be delivered. There is a place and role for civil society organizations in this process, and you know that Ukraine's NGOs are very active, proactive. A lot of them cooperate with us and we have friends, colleagues with many of them. We are grateful for their active role and participation in this common work on ensuring justice and the accountability for Ukraine. So first of all, as I said, there is a provision on victims participation where CSOs and NGOs also have the role. In the state, yes, they can, and I mean the prosecutor's office of the tribunal will always have the possibility to communicate with the civil society. So it will not be closed for requests, let's say, from NGOs. And also on national level, our prosecutor general's office actively cooperates with Ukrainian NGOs and other NGOs throughout the world who work on Ukraine. You know that many of the proceedings include materials, information from NGOs, so they can contact the prosecutor's general's office of Ukraine before the prosecutor general will refer something to the tribunal in order to, for their requests also to be there included. it. So yeah, of course, of course, and
Again, understanding that the crime of aggression is a rather specific crime, but still, of course, participation of NGOs is important, and the door for the cooperation with them is always open. In addition, because it is a very special crime, and the crime that colloquially can be understood differently than legally, because we call wars, aggression and invasions, aggression, but legally we are more restricted regarding what counts as aggression, and who can be held responsible. I believe learning from previous tribunals, especially those that were established for a single situation, such as Yugoslavia or RAN that tribunals, we understand that outreach will be a very important part of this tribunal. So how do you explain to the population that certain proceedings are stopped because of procedural limitations, such as personal immunities and others continuing in absentia? Do you perceive those as challenges? And how can they be incorporated into the tribunal model, or perhaps the Ukrainian society is very well informed? Well, we, of course, always try to talk with Ukraine's society, in particular with NGOs, so we share to these things with them. We, again, everybody wants something ideal, but when the time comes, we need to find the solution, which can give us the possibility to establish an effective thing. I believe that this balance, this package gives us the possibility. So with trials in absentia, with absence of functional immunities, gives us the possibility to have the effective tribunal, which will not be the same as the other tribunals, but will be sufficient for the current situation. I hope, and I believe, that Ukrainians, in general, would understand that and would support that, because I mean, I'm a national Ukraine. And again, I don't see here any issues on impunity or escaping accountability. I see here the situation where we had very different views, very different views. You, of course, may imagine this. And throughout these different views, we needed to find solution. And I hope that when Ukrainians will see the first verdicts judgments in the name of the tribunal against Russian ministers, highest military commanders, politicians, I think, and I hope, that they would understand that this was a right choice. It's better to have this than have nothing. Yes, and of course, a conversation like this is also part of the exercise of making people more aware. And I think we'll try to continue following up and having more of such conversations as time goes on. Just a few more questions before we let you go, particularly in the statement that it is better to have this than to have nothing. If we step back and look at what you have actually achieved, it is very impressive. It is something out of nothing, it is something after 80 years of nothing, and it may bring the recognition of the crime of aggression forward, also vis-a-vis functional immunities and how that is dealt with. But there is also the fundamental challenge of selectivity, and that is something that I encounter myself when talking about the tribunal and will come up for sure as this process moves forward. There are and have been multiple instances of acts of aggression that have been blatant, that have been obvious, have been recent, that have not received such response and such recognition. How do you address this? And do you think it is even possible to avoid this selectivity critique when establishing a tribunal for one situation? Well, I may be biased in this case because I'm a Ukrainian national. I live in Kiev, my family live in Kiev, so we feel that tribunal is needed for this case. In relation to other situations, I cannot maybe make my personal assessments because I'm not there. But this is from human being point of view. From legal point of view, I think that this tribunal is really existential for the concept of a legality of the crime of aggression and for fundamental principles of international law, like principle of non-user force or no threat of force. So if this crime of aggression of such a scale, which is the biggest war of aggression after Second World War, with all these front lines, massive bombings, 22 people were killed in Kiev just recently during one night. And it happens all the time. It's not some sporadic acts. So if this crime of aggression doesn't get any response, so whether really principle of non-user force or threat of force exists in international law, whether aggression is illegal, or actually aggression can be done by some state and some state may find justifications for this. So I think that within this notion of existentiality for international law in general, it is better to have this tribunal than not to have. And this I believe prevails over the possible concerns about selectivity. And in relation to the crime of aggression and the general thing, so we are okay and we support that the ICC jurisdiction on the crime of aggression should be stronger. So we understand that in the ideal world, ICC should deal with this cases. And there will be no need then to establish such special tribunals. So we are okay with this new concepts of compiler two and for making ICC jurisdiction on this crime stronger. But we also believe that even this parallel track is successful with the ICC, it will not have an answer for our situation. So special tribunal is still needed. So we believe that this is something what is again, I would rate to rate, is very important and existential for the very legality of the crime of aggression. And I believe that it prevails the selectivity concerns. And then there is hope that this might change how international community and its national lawyers respond to acts of aggression and crime of aggression, which we unfortunately see in other situations and which really should not be the case. So just around our conversation, I wonder if you have any reflections. You've worked on the one side as the architect of this process, you were central to it, but you were also a witness to the crime that you're aiming to prosecute, which allows for personal views and biases and that is a completely normal part of being a human being. But for those now studying its national law and thinking of what they'll want to do with it, what they can do with it, what is your takeaway? What would you like them to know about what is happening here in this moment? Well, on my side, first of all, I want to see the finish of this road. So I want to see the agreement signed, EPA signed. I want to see the building in the hage. I want to see that people work there. So yes, legal job of the core group is done. But now this political work should also be done. And it's important for us to keep motivation and to keep working for this. So the result is not yet there. We need to still try hard to do the case, to see the result of our work. And in relation to those who study international law, you know that I also teach international law in the key university. So it's quite hard in relation to time, but I try to do this. So I think that we still need notwithstanding all the circumstances in the world. We need to believe in international law. If international law wouldn't exist, or I mean this would be a worse world, and we need to believe in better world. So if people want to work with international law, they should try to use international law to get something done. And I think within this work, it is really very important not to get upset, not to think that everything is lost. Well, I tried, we tried, but there is no result. One should keep trying, because you may not be sure that your efforts will bring results automatically or within a small period of time. But it would be worse world if we wouldn't have international law. So the rise and fall of international law may be, but I think we all need to work on for international law still to matter in international relations. I think this is possible. And otherwise, it would be. Yeah, disaster. So finalizing international law, I believe, is one of the best things which we have with all the problems, with all the challenges. So we need to try to cultivate it and to develop it and to use it properly for the benefit of the humanity. Like this tribunal, I believe this is not only the matter for Ukraine. It's a matter for humanity. This is whether you may get up at four o'clock at night because of the bombings, because the other state started the full scale invasion to your country. I believe that the answer should be no. Thank you. And your conviction and hope and stamina is an example of how we as individuals create international law and create respect for it. And if you treat something as if it's real, then hopefully it becomes real. Thank you very much, Anton, for being with us today. And as always, thank you for listening to the jurisdiction's podcast. If there is a specific international legal issue, concept or case, the unit that listener would like as a cover, please write to us at
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