Anton Korynevych is an agent of Ukraine in the UN International Court of Justice in a dispute of Ukraine v. Russia under the Genocide Convention.
He is also co-leading a difficult process in Ukraine to create a new tribunal in which representatives of the Russian Federation can be convicted for the crime of aggression.
European Pravda spoke with Mr. Korynevych about this not-yet-existing tribunal and the prosecution of Russia, Russian leaders, and military men for the crimes committed during the war against Ukraine.
How to punish genocide
- I will start with a key question: Has Russia committed genocide in Ukraine?
- Indeed, there is evidence that high-ranking Russian officials and some Russian soldiers may have committed genocide on the territory of Ukraine. We have all seen Bucha, Irpin, and Gostomel, but we have not yet seen Mariupol and other cities where horrors have also occurred and continue.
Genocide has specific characteristics: the key lies on the so-called "subjective side". Not the crime itself, but its motive.
To prove in court that there was genocide, it is necessary to "climb into the head" of the criminal and find out whether it was simply murder or if he killed "to exterminate Ukrainians in whole or in part" as a separate national group. Only this fits the definition of genocide.
Of course, this is complex and difficult to prove, but it should be done.
Therefore, much depends on investigations and criminal proceedings in Ukraine. Based on them, we can say the Russian Federation as a state is guilty, and specific Russian high-ranking political officials, military commanders, and military personnel who directly committed this crime are also guilty of genocide.
- How to punish for genocide? Which courts deal with this crime?
- Genocide is indeed a crime, and therefore, it should be the individual criminal responsibility of the political and military leadership of the Russian Federation and specific perpetrators.
Although, we should not forget about other crimes, like crimes against humanity and war crimes committed since the end of February 2014.
You can be prosecuted in national courts here in Ukraine or in the International Criminal Court (ICC) in The Hague.
Accusations against Putin or Lavrov cannot be considered in Ukrainian courts. There is an immunity from prosecution abroad that applies to the president, the prime minister, the Russian foreign minister, and possibly a few others persons.
But the International Criminal Court in The Hague does not recognize immunities of officials and can prosecute even incumbent heads of state.
It's not just about genocide, and it's not just about Putin.
During the Russian army's invasion of Ukraine, we saw atrocities, rape of Ukrainian children, and more… The leaders of the Russian Federation should be held responsible for the complicity as they have planned the invasion. But those who physically perpetrated the crime must also be brought to justice. These are hundreds of people, and they cannot all appear before the International Criminal Court in The Hague. The ICC should deal with the "big fish," while the perpetrators, the military men, can be convicted in Ukraine in national courts.
- There is an idea that a separate tribunal should be set up to deal with horrific crimes in Ukraine, just as the Yugoslav tribunal in The Hague investigated crimes during the Balkan wars.
- In the 1990s, when tribunals were established for the former Yugoslavia and Rwanda, this was necessary because there was no permanent international criminal tribunal at that time.
After Yugoslavia and Rwanda, the international community decided to establish an International Criminal Court. Investigating these crimes is the task of the ICC. And the ICC is already conducting a full-fledged investigation into the situation in Ukraine. The first stage - Preliminary Examination - has already passed, the second stage has begun - the Investigation.
But there is another aspect.
The International Criminal Court cannot prosecute Russia's political and military leadership for committing the crime of aggression against Ukraine.
That is why we are currently working with a team of Ukrainian and international lawyers to set up a special tribunal on the crime of aggression against Ukraine, which will complement the ICC.
- Isn't it better to transfer to this tribunal all the accusations, including genocide?
- No. Because the ICC has already examined the situation in Ukraine. It has gathered the relevant data, and a large part of the international community supports its work in Ukraine.
We hope that the ICC understands the responsibility it has today, that it cannot delay or ignore the biggest war in Europe since 1945. But in any case, it cannot deal with the crime of aggression.
Therefore, let the ICC works on genocide, war crimes, and crimes against humanity. A new special tribunal should be set up for only one issue: the crime of aggression.
"Genocide leads to the life sentence"
- Is there also a need for political decisions about genocide, or it's just a legal process?
- These are parallel processes.
The fact that the parliaments of Lithuania, Canada, Latvia, Estonia, Poland, and the Czech Republic have already recognized the genocide of the Ukrainian people in the actions of the Russian Federation is a normal and correct step.
- What other cases of genocide are known to the world?
- At the Nuremberg Trials against the Nazis, the word "genocide" was used, but was not a separate category of crimes. The Convention on the Convention on the Prevention and Punishment of the Crime of Genocide was signed in 1948. Since then, we can count the legal recognition of the genocide.
Genocide was recognized in the events in the former Yugoslavia, such as Srebrenica, where the mass extermination of Bosnian Muslims took place. There was a genocide of the Tutsi people in Rwanda. Now they are talking about the events in Myanmar, where crimes against the Rohingya people are taking place. And also about the events in Ukraine against Ukrainians.
We can see some of the crimes of genocide in other African countries during their armed conflicts, but there has been no legal recognition.
I would like to point out that genocide is the crime of crimes, the gravest crime that can happen. But on the other hand, are crimes against humanity or war crimes "better"? Therefore, I advise you to constantly keep in mind the other crimes of the Russian Federation.
- Let's define these crimes.
- Genocide is a crime committed with the special intention to destroy in whole or in part a national, ethnic, racial, religious group. In our case, we are talking about the intention to exterminate the "national group" - the Ukrainian people.
War crimes are serious violations of international humanitarian law, ie the Geneva Conventions and their protocols and their additional protocols (for example, on the protection of victims of war). It is a list of more than 50 components of individual war crimes - deliberate attacks on civilians, rape of civilians, use of indiscriminate weapons in places where civilians gather and live, and the deportation of civilians from the occupied territories.
And crimes against humanity are crimes committed as part of a large-scale or systematic attack on the civilian population. The same action can be both a war crime and a crime against humanity.
We now see the Russian army committing both war crimes and crimes against humanity.
- Russia does not recognize what is happening in Ukraine as a war. Does this mitigate her responsibility in any way?
- No, absolutely not. Because the question of the existence of an armed conflict is a fact that does not require recognition of the warring states.
We currently have an international armed conflict between Russia and Ukraine, which is caused by Russia's armed aggression. I would like to emphasize that the phrase "international armed conflict" is the same as war. These are synonyms.
- Do we plan to prove responsibility for the genocide of the state of Russia, not just President Putin?
- So far, this is not in our lawsuit before the UN International Court of Justice under the Genicide Convention (which considers the responsibility of the state). We filed this lawsuit back in February.
Of course, we will talk about what happened in the occupied territories - both in Bucha and in Mariupol. As for the cities that we temporarily do not control, we do not yet have reliable information about what is happening there. When all this becomes known, it can horrify the whole world even more, possibly much more…
But I would like to emphasize an important fact: never in the history of international justice has the state been held responsible for the crime of genocide. It is important. This means that the level of proof of this is very high.
- How are those guilty of these crimes punished in The Hague?
- International criminal courts and tribunals do not use the death penalty. The maximum penalty is life imprisonment or imprisonment for up to 30 years.
Genocide is usually a life sentence.
For crimes against humanity, the tribunals usually give 20-25 years behind bars for those guilty; it can be 10-15 years for war crimes.
If the perpetrator provided information about the leaders or organizers, the perpetrator might get 5 years and 15 for the organizer, says ICTY experience.
In the practice of international courts and tribunals, those who plan and ideologically direct, supervise and control get harsher sentences.