Indictment Against Putin Will Be Amended, Top International Lawyer Says

Andriy Kulykov: Hello and welcome to Ukraine Calling, the English-language podcast from Hromadske Radio in Kyiv. I am Andriy Kulykov. I am talking today to Mark Steven Ellis. He is an international criminal law expert and the executive director of the International Bar Association. Mark Ellis is also the current chair of the UN-created advisory panel on matters relating to defence counsel or the mechanism for international criminal tribunals. I asked Mr. Ellis why he keeps coming to Ukraine while many people stay away because of the Russian invasion.

Mark Ellis: First of all it’s important to be here and to show commitment to Ukraine and as I’m representing the largest association of lawyers in the world I think it’s even more of a reason to be here because the issues that are affecting Ukraine deal with dramatic horrendous violations of international law. And so it’s appropriate that I’m here not only in support of Ukraine but also to see what is some of the assistance that we can provide Ukraine, which I’ve been doing for the IBA since the beginning of the war.

Andriy Kulykov: And the IBA stands for?

Mark Ellis: The International Bar Association, again, the largest association of lawyers in the world.

Andriy Kulykov: When we speak of war crimes and crimes against humanity, how verified those allegations are and how provable they are?

Mark Ellis: Well, there’s no doubt in my mind that the evidence is absolutely overwhelming to show that both war crimes and crimes against humanity have and are continuing to be committed here in Ukraine by Russia and its military. War crimes, which is international humanitarian law, as we know is a structure of laws that define, if you will, the rules that have to be followed in war, and that sounds a bit odd of course, but that’s exactly what international humanitarian law is, and the violations that have been committed here by Russia, again, are unquestionable, and the evidence is overwhelming.

Crimes against humanity is a widespread or systematic attack against civilian population. Well, that happens, that’s happening every day. It happened the other night when I was trying to sleep and drones and bombs were coming down on Ukraine and on Kyiv. That is an indiscriminate act with the intention of causing damage to civilians.

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Evidence Is There

Andriy Kulykov: So they may say our drones and missiles were aimed at military targets, at legitimate targets and this was the Ukrainian air defence which brought the debris on peaceful residents. That’s actually what they say.

Mark Ellis: I think that that is an important distinction to make in law of course, being involved in a war. You’re permitted to focus on military targets. That’s what war is about, but international law is absolutely clear without question, unambiguous that you cannot target civilians in a war and that is exactly what Russia has been doing and that’s where I feel the evidence is a bit overwhelming. I think that the International Criminal Court which we know has already set out an arrest warrant for Mr. Putin for war crimes but specifically dealing with the deportation of children, that that indictment will undoubtedly be amended to include other crimes that are being committed, and so I suspect that that will be forthcoming and that amendment on the indictment against Mr. Putin should be forthcoming because, again, the evidence is there.

Andriy Kulykov: What is needed to add new charges? What is needed to expand the range of what Mr. Putin can be prosecuted for?

Mark Ellis: Well, again, if you look at the international criminal court’s statute, and you look at the crimes that are under the court’s remit, war crimes, as I mentioned, with a special focus on attacks against civilians, for me should be the main focus for any additional indictment against Mr. Putin for war crimes. Again, this indiscriminate attack against civilians without distinction between as you indicated earlier military targets and civilian targets.

I think that’s the clear area where evidence indicates. Second, there is actually evidence of targeted approaches from Russia, for instance, towards infrastructure here in Ukraine or even hospitals which we have seen and that too, that’s not an indiscriminate attack, that is a targeted attack against a non-military area, non-military objects. And those attacks would also be a violation of international humanitarian law and a war crime. You could then go to crimes against humanity which I suspect you may very well have an indictment against, the more general policy and actions from Russia as to a widespread and/or systematic attack against civilian populations, and that’s happening every day.

The last area that comes under the remit of the court is genocide, and that will be interesting. Genocide is having/showing specific intent to destroy and hold or part a group based on ethnicity, race, nationality, religion. And I personally think that there is evidence of that intent, specific intent from Russia. But that crime has challenges to bring and to prove, and so the prosecutor will look very carefully before undertaking that new indictment, an amended indictment on genocide. But I think it should be looked at.

Dramatic Step in International Law

Andriy Kulykov: What about the crime of aggression?

Mark Ellis: The crime of aggression in regards to the International Criminal Court is a relatively new crime that’s been embedded in the Rome Statute, but it has limitations, procedural, structural limitations. And so for the crime of aggression, unlike the other crimes, the state and the individuals within that state must be a state party to the Rome Statute. So specifically, the state has to be a member, if you will, of a court.

And second, you have to be a member, and you have to accept or ratify this specific crime of aggression. Well, Russia, neither of those within that criteria is met by Russia. And that means that the ICC does not have jurisdiction over the crime of aggression committed by the leadership of Russia here in Ukraine.

And that’s why so much emphasis is being placed on finding another legal mechanism to focus on the crime of aggression. But I should, I want to re-emphasize the remarkable, I think, achievement in development of law when the prosecutor of the ICC brought this indictment, this arrest warrant against Mr. Putin, a sitting head of state, and particularly a head of state in a state that is powerful as Russia. That is a dramatic step in international law. And I think we should take pause to understand how important that is. And as I say, I believe there’ll be amendments to that indictment, arrest warrant to include other alleged crimes.

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Mission Impossible?

Andriy Kulykov: It is very important, indicative, and yes, of course, it has to be analyzed. But from the point of view of a layperson, I would challenge this by saying, so what? There is a warrant. Russia is never going to admit it or accept it. What are the mechanisms to implement the decision?

Mark Ellis: It’s a very good question. I tend to look at this as two sides of a coin. The first side of the coin has to be the legal process of bringing in the indictment, showing there’s evidence against an individual who have committed these crimes. So that has now happened. The second side of the coin is the apprehension, apprehending the individual who have been accused.

Both of those are exceedingly important, but one is much more difficult than the other. Apprehending a suspect, an indicted criminal, which Mr. Putin is now, that’s who he is, is difficult, and he will not be apprehended overnight. He will not be apprehended in the near future. But I always say that international law, particularly international criminal law, plays the long game. So you can look back at history and see other heads of states, whether it’s al-Bashir from Sudan, Charles Taylor, Milošević, a number of others who were indicted by international courts and eventually found themselves out of favour with the very country that the individual oversaw. And this, I believe, will happen and we just have to be patient. But I don’t want anyone to be less enthusiastic about the dramatic steps taken by the court simply because we recognize the difficulties in apprehending Mr. Putin. I believe he will be apprehended in the future and we just have to be patient about that.

Andriy Kulykov: There’s one possibility that not many people mentioned, but Mr. Putin may die of natural causes before he is apprehended. What do we do then?

Mark Ellis: He could. And of course, we have some experience on that with Slobodan Milošević who died. He was apprehended, of course, he was in the Hague, but he died before a verdict, and that can ring shallow to the victims of his crimes, but that’s part of the risk we take. And so, yes, Mr. Putin could die before he gets to the Hague. But again, the steps that have been taken is really unprecedented, and I think it’s such an important step for the international community.

And remember, the court doesn’t have a police force, it doesn’t have a military, it relies on the international community to implement and to support the decisions of the court. And that all comes down to political will. International criminal law, in my opinion, only works when there’s political will. So we have to keep building this political will to say we now have an indicted war criminal, an arrest warrant out for this individual, Mr. Putin, from the permanent international court. It is exceedingly important that the international community recognizes that and does everything it can to ensure that Mr. Putin is eventually brought to The Hague, because that says everything about the international law and about the principles of accountability.

Children: Why Change Identity?

Andriy Kulykov: One of the things that seems to distinguish the current Ukrainian situation from many other conflicts is the scale of the deportation of civilians, including the deportation of children. Is there a special provision for prosecuting for this crime, if this is a crime by international standards, and how this can be done? Because, for instance, there were cases of illegal adoptions, like illegal adoptions of children from Guatemala in the U.S. or in Argentina when kids were adopted within the country. But there is, for the first time, we say that there’s a massive policy of taking lots of children from one country to another. And by the way, some people say that this is maybe a collateral proof of genocide, because the identity of those children is being changed.

Mark Ellis: So, the first short answer is yes. Transferring children from an occupied territory into another territory or somehow in a long-term program which Russia has now undertaken to take those children and see that as a permanent transfer. Under international law, it’s possible to, and it’s reasonable to protect children and to even transfer them out of a war zone by the occupying force. But that is a short-term requirement, that’s not the policy we’re seeing undertaken by Russia. As you say, it’s a long-term, structured, systematic policy of taking children away from Ukraine, away from their families, away from their parents, relatives, and indoctrinating them back in territory controlled by Russia. That is a war crime, that is, also would be consistent for a crime against humanity, and as you’ve alluded to, it could clearly be a genocidal act because the genocide convention specifically mentions this type of policy. So it gets back to my point earlier about whether or not when this indictment against Mr. Putin is amended, and it will be, and I think it will be changed, it will be added, whether or not the prosecutor thinks there’s sufficient evidence to expand the charges against Mr. Putin for this specific act, the deportation, and I think there’s a likelihood that you’ll see that.

Understanding Within Legal Community

Andriy Kulykov: By its nature, the International Bar Association includes people from different countries. What are the major differences, if there are, among your members in treating the situation and the war in Ukraine?

Mark Ellis: Good question. I tested that question, that idea, several months ago when I presented to the International Bar Association’s council, which represents nearly 200 bar associations and lawyers throughout the world, so essentially most every country is represented, and the resolution was to not only condemn the war, that was fairly easy, but more difficult was to call for the creation of an international tribunal to pursue justice against the leaders of Russia. As I pursued this resolution, it’s like you’re dealing with a mini United Nations in the IBA council. So, I wasn’t quite certain where the votes would be. I was confident I would win, that we would get the resolution, that was certain. It was unanimous. A unanimous vote by this very diverse council. It was for me extraordinary and it gave me hope that within the legal community, there is an understanding, that these are- these are egregious violations that have been committed by Russia and its leadership and those that are in control, those who set the policy, plan the policy, prepare the policies of these crimes, need to be brought to justice and that includes Mr. Putin. And so I was very pleased that the IBA stood out and made that commitment.

Superiors and Subordinates In Crimes

Andriy Kulykov: You mentioned bringing to accountability not only Mr. Putin but the leaders of Russia, as you put it, and many people here are just thinking about Putin. Who else should go on the tribunal? Not probably by names but by their positions, or by what they have done.

Mark Ellis: When you look at these types of crimes, regardless, you know, for instance, whether they’re war crimes, you look at superiors, you look at people that are in control of the subordinates who are committing these crimes. And it’s interesting to look back at the indictment from the International Criminal Court against Mr. Putin. The indictment was split; it had two counts. One was an indictment against Mr. Putin for his direct involvement in this plan of deporting children but the other one was indirect and it was because he had the authority over these individuals who were committing these crimes and he did nothing to stop them or punish those committing those crimes. It was under the concept of command responsibility. And so you look at these crimes from either the individual who is actually committing the crime. Could be a soldier, for instance, on the ground. Or it could be the military leader sitting in Moscow who’s directing these acts and knows, or should have known that these crimes were being committed and he did nothing to stop them. That individual can be brought to justice, can be indicted for those crimes as if he committed them himself. And so, I always look, when we look at the higher-up chain of command, look for those individuals that have the authority over their subordinates whether it’s political or military. That type of control is critical in making the determination that those individuals are responsible for the crimes.

Other Side Of Coin?

Andriy Kulykov: You’re listening to Ukraine Calling, the English-language podcast from Hromadske Radio in Kyiv. I’m Andriy Kulykov, I’m talking to Mark Ellis who is the executive director of the International Bar Association. So far we’ve been talking about crimes committed by Russian aggressors, but war is war, and is Mr. Ellis as prepared to look at the other side of the coin?

Mark Ellis: Because we’re an international organisation founded on the UN Charter, principles of the UN Charter, we support the idea of accountability and not impunity. We of course would speak out against any actions that would violate those principles, whether those crimes are committed by Ukraine or by Russia. The very fact that Ukraine has accepted the jurisdiction of the International Criminal Court over the current war means that the ICC, the prosecutor, can also pursue actions against individuals who have violated these laws and violated the laws under the Rome Statute. And so, Ukraine is not immune at all from being held accountable for crimes that could be committed by its soldiers. That’s the first point. But the second point is, I’ve been here as I said three times, I’ve had a series of meetings each time with government officials, non-government officials, in implementing the assistance that we’re giving, including with the ministry of defence, and I have to say I have been exceedingly impressed with their commitment to ensuring that international law, particularly international humanitarian law is followed. And even to the point of educating, training their military on international humanitarian law, on the rights of POWs, even to the point of providing them a small pocketbook that explains what their responsibility is. It’s not to say that there will not be Ukrainian soldiers who will violate, for instance, the Geneva Conventions. But I’m convinced that Ukraine will ensure that those individuals are brought to justice. And why? Why does that have to happen? Because it’s part of Ukraine’s legacy, it’s how they are going to be seen in the international community: a country that lives and abides by laws, and abides by international law. I assure you that’s not what’s happening in Russia, which is why it needs to happen here in Ukraine.

Resolve and Fatigue

Andriy Kulykov: And finally, your third time here during the time that has elapsed since February 2022. What is changing, both in your relations with Ukrainian officialdom, what is changing before your eyes as compared to the previous two visits and general atmosphere? But again, importantly, since the last time, what is changing internationally about the attitude towards Ukraine?

Mark Ellis: Those are two important questions. Every time I come here I’m a bit overwhelmed by the resolve of Ukrainians, not just the government officials, but non-government officials, citizens, military, in their resolve to not only bring victory to Ukraine but also to build a society that will be seen as having been worth the sacrifices that have been made particularly by Ukraininans but also by the international community that has helped. And so each time I’m here, I get a better sense that that’s the direction that the country is going. But I also recognize that it is a difficult journey. It is at times depressing, it’s heartbreaking at times because this is a war that Ukrainians have to live each day and the fact that two nights ago, as I said earlier, the bombs were coming down, drones were here. Well that was one night for me but it’s every night here and elsewhere in Ukraine and for me it’s just an incredible sense of the strength of Ukrainian people. On the international side, well, that really is to me the most important component of this current conflict.
I’m not saying anything that others are not talking about in the international community. When I say «the international community»,  we have to recognize that the international community does not in any way mean every single state in the world. There are quite a few countries that have really no interest in this war and certainly no interest in condemning Mr. Putin. That’s a reality. But for the kind of consolidated group of countries who understand that this war is much more than a war against Ukraine itself, it’s a war against the basic order of law, principles, human rights and if we lose this, the consequences will be far, not just in Ukraine but I think worldwide. And so the question is, will the international community as I’ve defined it, will they continue to have the resolve to support Ukraine, because that’s essential, and will there be fatigue in the sense of countries who will say enough is enough. Will the US elections next year go in a way that would domatically change the position that the US is now following in support of Ukraine? And it could very well change. And so there’s lots at stake here, and for the next year, year and a half. And part of what I believe my responsibility is to continue to speak as a lawyer, as an international lawyer, what the consequences will be if we do not successfully counter this war started by Russia, and Mr. Putin particularly.

Andriy Kulykov: You’ve been listening to Ukraine Calling, the English-language podcast from Hromadske Radio in Kyiv. I am Andriy Kulykov and my interlocutor today was Mark Ellis, an international criminal law expert and the executive director of the International Bar Association.

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Transcribed by Caitilín O’Hare

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