Many have heard of Timothy Snyder, the Yale University professor who explains to the world that Russia is committing genocide. Now European Pravda wants to introduce you to a professor who is actively assisting Ukraine in bringing legal cases against Russia to justice.
Yale professor Harold Hongju Koh is a former legal advisor of the US Department of State. For the last eight years, he has been helping Ukraine in its legal battle with Russia. The latest is the Genocide case Ukraine vs Russia at the International Court of Justice (ICJ).
We met in The Hague during the hearings in the case "Ukraine vs. Russia" under the Genocide Convention. Ukraine filed this lawsuit in February 2022 at a time when Kyiv did not yet have evidence that Putin was genuinely planning a genocide against Ukrainians, so Ukraine's lawsuit was creative and did not contain genocide allegations. Since then, events like Bucha, Mariupol, and others have occurred. Is this enough to accuse Russia of the most serious crime on Earth?
Will Ukraine win? Will Putin be brought to The Hague because of the Russia-Ukraine war? Will there be a tribunal? Watch this interview!
Professor Koh, many war crimes have been committed during the Russian invasion of Ukraine. Is that enough to charge Russia with genocide in a wider sense?
There are many, many war crimes being committed. It's interesting that the International Criminal Court prosecutor to this point has only charged Putin with stealing children. As far as we know, he has not yet charged him with genocide.
One of the problems is that it’s hard to gather this kind of evidence in a war zone. There is now a number of groups involved in gathering the evidence.
As we say in the US, you have to walk before you can run.
The purpose of this case was to call out Russia's false use of the Genocide Convention. They use the claim as the justification to invade. If it turns out the claim is false, then their right to invade is also illegal.
The fact of the matter is that there was no definitive ruling that Russia had engaged in illegal behavior. The Security Council would not rule because Russia has a veto. With UN General Assembly votes, you can have a very large number, but that's not proof of international law.
So a ruling by the highest UN court is very important to say that what Russia is doing is illegal.
It’s the beginning of a dynamic process. And where that process will end, we don't know.
The important thing is if you look at the main room of the International Court of Justice, there is a picture of a rich man and a poor man who are taking their case to a decision-maker's judges.
There is a level playing field between the weak and the strong, because each nation has to obey international law. What Ukraine has done by bringing these legal cases is to put itself forward as equal to Russia on the field of law.
Let’s imagine that Ukraine wins and Russia is found guilty. What then? Putin has no respect for international law.
Well, this is not about whether Putin believes. This is about whether the world believes.
Look at the genocide allegations case. The first case – financing of terrorism and racial discrimination – began in 2016, but it really went back to the events of 2014: the seizure of Crimea and activities in Donbas.
This case started with the war, which is upping its illegality, but that doesn't mean that the law can't follow along also.
It allows Ukraine to use its diplomatic and alliance resources and rule of law resources to equalize the playing field.
The Russian soldiers and the Ukrainian soldiers have been having an extraordinary struggle. The Ukrainian soldiers have done extremely well with resource disadvantages, but on the field of law, I think that the Ukrainians are winning.
What will change in practice?
I think the Chinese and the Indians are being affected. If the order says that Russia cannot be in Ukraine, and those countries give weapons to Russia, then they are in violation of international law. China and India both like to be seen as acting consistently with international law. They have a judge in the International Court of Justice.
In fact, there are any number of reasons why China has not come in completely on Putin's side, but I think this is definitely a factor. They don’t want to be branded as outlaws along with Russia.
You said that Ukraine is doing better than Russia in international law. Are you completely sure that Ukraine will win in these cases?
You’re never sure. If a friend of yours gets cancer, and there’s a treatment and they apply the treatment, you say I hope he will survive. But it turns on many factors, including the strength of the patient and the skill of the doctor.
You can't be sure. It's not a scientific prediction.
It's a statement of collective will.
What we've seen is that it's given Ukraine's diplomatic partners an avenue by which they can express their view.
33 countries appeared in the court on Ukraine’s side in The Hague on September 20.
This is not just Ukraine versus Russia. This is Russia against international law. If you attack international law and you attack Ukraine, then many will come in on the other side.
My president, Joe Biden, put it this way: Putin thought that the alliance would crumble. In fact, it's gotten stronger.
The US is changing its position towards international law. We used to see that Washington did not cooperate with the ICC. Now, the United States has provided some evidence to the ICC in the Ukraine case.
This is where the Ukrainian crisis is helping to address this issue and creating more momentum, a political momentum in the United States to cooperate with the ICC.
The United States was in the prosecution group at Nuremberg and also in Tokyo. The United States was helpful in beginning the international criminal law movement.
The United States helped to set up the Yugoslav tribunal and the Rwanda tribunal. President Clinton supported the idea of the ICC.
There is a pendulum swing. Some administrations are more hostile.
It has been typical that the United States takes longer to commit itself to an international court than other countries.
The United States never ratified the Permanent Court of International Justice, which was set up by the League of Nations. One reason for this is that as a country with global interests, the United States is not just going to be the plaintiff or the prosecutor: they may also be the defendant, so they see this from both sides.
There are some countries that will only see this from the perspective of someone who is pursuing someone in these courts. They tend to have a more one-sided view.
You mentioned the Nuremberg tribunal. Ukraine is trying to see how it happened. It is also important to see whether it can be repeated now. We understand that Putin is the key and he is responsible for everything. It was only possible to establish Nuremberg when Nazi Germany had collapsed. Do you think we will have to wait until Russia loses to have trials against Russian war criminals?
It is true that Nuremberg was successful because the defendants were all captured and in custody, and Hitler was dead. In Ukraine, we have an ongoing war. Nobody is in custody except for some individuals who are being tried by the Ukrainian Prosecutor General's Office.
But you also have to remember that at the time of Nuremberg, some people were proposing that the Nazi prisoners simply be shot - no trials.
Instead, they set up a system to try to determine the facts and who is guilty. They had defense counsel. Justice Robert Jackson, the US Supreme Court justice, who was the prosecutor, said, "Never has power paid more tribute to reason than to stay the hand of vengeance." That means we do not act out of vengeance. We act out of law.
Now, you know, Putin is still on the loose. He has troops who obey him, and he has resources. But he is much more isolated than he was before. You notice, for example, he didn't go to the BRICS summit in South Africa. He can't really travel. His money can't move. His freedom of movement is very substantially limited.
He made a catastrophic mistake.
He decided to invade a peaceful neighboring country that had a lot of allies and he misjudged the reaction, so he will be paying the price for this for many years to come.
And I think it’s also clear that he has a very slim possibility to stay on for the long term.
Even in Russia, many are unhappy.
He has subjected them to sanctions. Many people are being conscripted and sent to the front. Their families are very upset because those who are being sent to fight don't have adequate weapons or armor.
They don't want to fight, they're being drafted.
Even someone as evil as Prigozhin, the head of the Wagner Group, felt confident enough to challenge Putin. Putin seems to have had his vengeance on him, but it shows that Putin is not invincible.
Would you back an assumption that Putin has to be overthrown or killed to achieve a breakthrough in establishing justice?
Well, it's hard to know.
One possibility is he could be overthrown. Yuri Andropov, also a former KGB chief, was quietly removed. He could flee. KGB agents tend to have exit strategies, so for all we know, he’s set up a dacha somewhere in the Middle East and could take money.
A third possibility is he could negotiate. But I don't think he'll be able to negotiate for his own freedom from criminal responsibility.
So he has very few options at the moment.
He did this out of a sense of wanting to restore the Soviet Union. Ironically, he has driven Ukraine much more into the West.
He is his own worst enemy in terms of achieving his own objectives.
In Ukraine, people want to see Putin tried in The Hague, which is hardly achievable. People want to have a tribunal established, and we haven’t seen enough progress so far. There is a feeling that the West is waiting - and not only the West, but also the Global South, the East - waiting for some outcome of the war: whether Russia has completely lost the war and has to be treated accordingly, or Russia can keep going. Do you agree with that assessment?
We have an expression: don't let the best be the enemy of the good.
There is no tribunal. It doesn't exist yet. Maybe if it existed now, it would be the best outcome.
But it will take a lot of resources and a lot of diplomatic energy to establish it.
Do you believe it's possible?
It's possible. The question is, is this the best way?
Sometimes you do what is not the ideal, but because it’s more realistic in the term.
Like hybrid tribunals being proposed, other kinds of things.
This is a subject of extensive diplomatic discussion, and Ukraine obviously has a governmental position which is addressing the political situation as it exists at each moment.
That brings me to the next and probably the last question. Ukraine has been very creative in filing the lawsuit against Russia. Who is behind the idea of suing Russia with this genocide case without having charges of genocide against Russia? Who was that?
This is the product of discussions with the International Legal Department of the Ministry of Foreign Affairs.
We were in a situation where we were working on the prior case. They put together a team that argued the terrorism financing and race discrimination case against Russia.
And in the fall of 2021, they said, there's a chance that Putin will invade. What do we do?
We said, maybe we should develop a theory for that possibility. And we did.
Then the invasion occurred. We asked them, what do you want to do? They contacted us from the Carpathian mountains, they had driven 26 hours. They wanted to go back into the court.
I think President Zelenskyy wanted to give some hope to the people.
And so we filed, and we were able to get into the ICJ on March 9.
The invasion was February 24. We got a ruling from them on March 16. So not even a month after the invasion began.
On this legal war, Ukraine can be on the offensive.
Ukraine has great lawyers.
Am I correct in understanding that you were analyzing a possible invasion and even charging Russia in the ICC even before the invasion happened?
We have been thinking about these issues going back to 2015.
People were surprised that on the military battlefield that Ukraine was so successful.
The fact is they've been fighting with them for eight years. In law, we've been doing legal battle with them for seven years.
You and our lawyers are very creative in making cases against Russia. Ukraine is making a creative view of international justice. How is that perceived?
I wouldn't say that. Remember, the way we get into court is that Russia signed all these treaties. Russia claimed that it would follow all these rules. It just didn't expect anybody would hold them to it. They should thank themselves.
They said, "We're not going to finance terrorism," and so we're in court against them. They said, "Anybody can go to court about responsibility for genocide," so we brought them there. They said, "We are not going to discriminate against minority groups in different countries, including Crimea."
It's all because the Russians agreed. Russia said how much it cared about international law, that it obeys the Genocide Convention.
Their argument is: "We're obeying the Genocide Convention." We say: "Fine, let a neutral court decide what the rules are. It's not just for you to make these rules in a self-serving way." There is a court with 15 judges and one other, and they're going to decide the international legal systems of the world.
That's the way it should be in the 21st century.
Let justice prevail.
Interviewed by Sergiy Sydorenko
Video by Volodymyr Oliinyk
The Hague - Kyiv