Is there a chance for Ukraine to win the international court in Russia

26-27 May in Kiev will host the first international conference on post-conflict justice. At the conference organized by the Ukrainian Helsinki Human Rights Union (UHHRU), the European Society of International Law and the Ukrainian Association of International Law, will bring together leading experts in international law from twenty countries. Among the speakers – judges of the European Court of Human Rights, the International Tribunals for the consideration of military conflicts in Yugoslavia and Rwanda.

On the eve of the conference Ukrainian human rights activist, Doctor of Law, Head of the Analytical Center UHHRU Oleg Martynenko told how and who will judge the war criminals in Ukraine, if Ukraine will help the practice of international courts and whether there is a chance for Ukrainians to reconciliation.

– The conference declared a seminar entitled “Can the International Criminal Court to play a constructive role in the post-conflict settlement in Ukraine.” Extend the question – are there any international courts somehow influence our situation?

– A court, whether international criminal or International Court of Justice will not decide for us all our problems. They are globally condemn the actions of one state, for example, together with the actions of the largest odious figures who are found guilty of violating international humanitarian law standards. But then the court will say we have done the trick. We called the perpetrators “. But then the court will not judge the hundreds of thousands of combatants on the part of Russia, Ukraine, by the DNI, LC, which, for example, human rights violations – is just the competence of Ukraine. If we want, our judges in general can brush up for this in more detail trainings will be engaged in international and non-governmental organizations, foundations. But then we’ll have to judge for yourself. Therefore we expect from the international courts, that they get to the mediocre figures in “LC-DNR” is not worth it. It will not be.

– Is there a chance to win Ukraine’s international court in Russia?

– The odds are always available. These may be high, but they depend on the political situation.

– You want to say that the international court in making decisions based on political expediency?

– I guess they are afraid to come out with accusations without 100% certainty. And 100% confidence is not never. So, most likely, will gather evidence for a long time, it may take several years until the courts have something to say.

– Why could convict Milosevic and Putin is not?

-First of all, Milosevic was physically accessible to justice.

– There is also the practice of in absentia convictions?

– It needs proof. And they gathered Hague Tribunal in relation to Milosevic. But it was the last such practices. Tribunal for the former Yugoslavia of the United Nations budget, in my opinion, takes away almost the third of the organization’s budget – it is a very expensive project, which requires the cost of staff, on archiving documents on the protection of witnesses. After it was announced that the UN tribunal refuses to practice – the whole planet will not support a greater number of tribunals. Following that decision, went to the practice of the International Criminal Court: Now the court takes fundamental decisions, remotely, without many of the defendants, etc. So, of course, the prospects we have. But we must be prepared to ensure that the International Criminal Court, which may recognize the blame Russia for a number of things can plead guilty and Ukraine. If then it is proved, that the conflict was made possible thanks to the support and acquiescence of someone from business, from our politicians. And our politicians should be prepared to ensure that the ICC will point the finger of someone from their ranks, from their friends, or to them personally. Justice – it is the same for everyone. And so, if the theory is condemned Putin, then they should be condemned together with Putin. This perspective is very much like a number of Ukrainian politicians.

No matter what decision will make the ICC, we need to prepare their own versions of how we judge the perpetrators fault. Suppose we have the Criminal Code has a section on military crimes, but it is necessary to process the entire section, because it is registered quite sketchy. For example, the crime was committed “in a combat situation.” And what is a combat situation – is not defined. Only now, three years later, what is happening in the east of the country, is officially defined as “combat situation”. But again, the court must prove that at this moment and in this place there was a combat situation. A clear definition of this concept we have. And, among other things, military crimes we somehow spelled out, and where it is a violation of the rules of war, humanitarian law, that is, a crime against humanity – we have no practice. The scientific and practical commentary of the Criminal Code of Ukraine in this respect is based on very general comments, which is aggravated by the lack of judicial practice. And in order to earn it, you need to develop judicial methodology. Suppose we have detained and Motorola are willing to try him as a war criminal. But as? What are the questions we ask? How do we evaluate his answers? We need an investigation technique – and it does not exist. Because we had this type of crime is not encountered. So a lot of work to be lawyers. Motorola, we have detained and are ready to try him as a war criminal. But as? What are the questions we ask? How do we evaluate his answers? We need an investigation technique – and it does not exist. Because we had this type of crime is not encountered. So a lot of work to be lawyers. Motorola, we have detained and are ready to try him as a war criminal. But as? What are the questions we ask? How do we evaluate his answers? We need an investigation technique – and it does not exist. Because we had this type of crime is not encountered. So a lot of work to be lawyers.

– Within the framework of post-conflict justice is supposed to create military courts, which in Ukraine is not?

– They may be. The only question is that we have to somehow ensure the independence of military judges by their superiors. If a person wears epaulettes, he initially dependent and it is somehow possible to systematically push a military court. Our lawyers of UGSPL inclined to think that in principle it should be courts of general jurisdiction. In this case, the courts or the compile-time, to work on a specific case, or the court must work judges who have greater experience in investigating military crimes. If we assume that the decision will be made on the establishment of military courts – and they really should be very little – then try it again should the judge without shoulder straps, civilized judges. This design is also acceptable. They just need to understand that they were going to work in a military court, and spend it on, say, 15 years of his life. In such a case the judge must begin to read the practical materials, to delve into the life of soldiers in order to better understand their system of relations, as a man reacts in the same combat situation, how to evaluate his actions correctly. In other countries there are military courts, but there it is not a big problem because they are judged objectively. And we have even ordinary civil courts of general jurisdiction are often very dependent on everyone and everything.

– Maybe, Ukraine can help the same international courts and experienced judges are already working in these courts?

– Yes, in transitional justice is the practice of so-called mixed, hybrid courts. In this case, in our national courts, for example, two judges – Ukrainian, and one – a foreigner. To introduce the practice, of course, we need a change in the constitution, changes to the laws. Or can be foreign judges to appoint advisors, without entering them in court – but in this case they need to give such powers to Ukrainian judges do not have the right to make a decision without consulting with just such a foreign adviser. And here begins the battle of lawyers. And would not it be a pressure on the judge? What is a hybrid court, and where he is registered in our laws? Who invented this transitional justice? In general, “50 shades of gray legal.”

– That is all those people that Ukraine would condemn as war criminals will die a natural death and not having appeared in the dock?

– Unfortunately, they can. But if even after their death, their crimes will be investigated and made public – justice will still be accomplished, albeit after the fact.

– Prospects look sad.

– Unfortunately, the global process looks bleak because of its duration.

– Reconciliation – the ultimate goal of post-conflict justice. Which means in this case the “reconciliation” between the two sides?

– There is no any specific recommendations on how to be realized reconciliation. Fairly general promises: to learn to live in the world, not leading to a new conflict, need to be more tolerant, and for a while just to silence, not to bring up heytspich against each other. Because it is heytspich is starting mechanism for a new outbreak of the conflict. But this does not mean that the parties will all forgive each other and live “in the arms”. No one on this and not insist. It is impossible in principle.

Interview by Galina Sklyarevskaya

Sourse, 18/05/2017