As Russia’s invasion of Ukraine bleeds into its third year, JURIST spoke with Anton Korynevych, Ambassador-at-large for Ukraine’s Ministry of Foreign Affairs and an expert in international criminal law. In their discussion, Korynevych and JURIST Interviews Managing Editor James Joseph discussed the imperative of establishing a Special Tribunal for the Crime of Aggression against Ukraine, the importance of financial and military aid from the international community, as well as concerns about wavering support from the US Congress.
JURIST: Ambassador Korynevych, here in the US, we’re seeing congressional support for Ukraine wane. Why is it incumbent on the international community to continue to support Ukraine at this critical time?
Korynevych: Ukraine is fighting. We are fighting for our independence, our sovereignty, and our integrity. But we also need to take into account the size of the Armed Forces of the Russian Federation, and the capabilities they have, including their weaponry. This is why international support is so important in terms of weapons and financial support. We need to be able to effectively continue to struggle and to fight the aggression. We have hope and confidence that the US will be able to figure out a support package that will enable us to continue to defend ourselves. And no matter what happens, we will continue to defend ourselves.
JURIST: On that same note of support, over 60 countries are going to the polls in 2024. In many countries, we’re seeing tensions between a drive to support Ukraine and a push to focus on domestic issues and/or the war in Gaza. Why do you think it is critical for these countries to continue supporting Ukraine?
Korynevych: First and foremost, the Russian war against Ukraine is the biggest act of aggression in Europe since the end of World War II. There needs to be an appropriate response to this aggression. We are optimistic that the international community — and in particular, those nations who share our values with respect to sovereignty, territorial integrity, and the protection of human rights — will support us for as long as needed to counter Russian aggression. … I think this is a very important moment for international law.
Irrespective of ongoing events in other regions, I believe we are currently at a critical juncture regarding the practical application and effectiveness of the fundamental principles of the non-use and non-threat of force in international law. It’s essential to ascertain whether we can truly uphold this principle and whether the concepts related to the crime of aggression hold weight in international law. Without a response to establish a special tribunal in the case of Russian aggression against Ukraine, these crucial legal concepts risk fading into history, leaving a significant void in the international community. They may become mere topics for academic discourse, devoid of practical relevance. Therefore, despite other global circumstances, we must address this specific situation promptly. Failure to do so would be unacceptable. I am optimistic that, with the collaborative efforts of our international partners, we can indeed find a solution to this pressing issue.
JURIST: What will the core purpose of such a special tribunal, and why not prosecute through existing mechanisms like the International Criminal Court?
Korynevych: Let’s start by clarifying what we mean regarding the purpose and scope of the tribunal we intend to create. As we are aware, there are four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. These crimes may overlap and fall under various legal categories, such as genocide or crimes against humanity. Fortunately, mechanisms and institutions already exist to address most of these crimes, including national courts and the International Criminal Court (ICC), which has jurisdiction over three categories of international crimes and is currently investigating alleged crimes committed in Ukraine.
While existing mechanisms cover most international crimes, there remains a significant accountability gap for the crime of aggression. Domestic trials in Ukraine may not effectively address this crime, as it often involves leadership figures who give orders for aggressive warfare. Unlike other international crimes, the ICC cannot prosecute individuals for the crime of aggression. Thus, there is a clear need for a specialized tribunal to address this specific aspect.
Establishing such a tribunal would fill this accountability gap, focusing specifically on the leadership elements responsible for initiating aggressive acts. This would set it apart from the ICC and national courts, which handle a broader range of criminal cases. In the context of Russian aggression against Ukraine, the crime of aggression serves as the primary catalyst for subsequent war crimes, crimes against humanity, and potentially genocide. Investigating and prosecuting those responsible for this root cause is essential for addressing the entirety of the crimes committed.
The establishment of a tribunal focusing on the crime of aggression is thus crucial for ensuring accountability at all levels, including those who orchestrate acts of aggression. This comprehensive approach is necessary to address the complex legal and humanitarian issues arising from conflicts like the one in Ukraine.
JURIST: It’s important to note, as you mentioned, that this aggression didn’t start recently, but dates back to 2014 with the annexation of Crimea. Considering the magnitude of crimes being committed, could you provide some insights into the statistics shared by Ukraine’s Prosecutor’s Office? I understand if this is beyond your specific mandate, but it would shed light on the legal challenges the tribunal may confront.
Korynevych: Of course, for detailed statistics, it’s best to consult the Prosecutor General’s Office, as they oversee this area. However, I can highlight that there have been over a hundred thousand alleged war crimes and other offenses documented during the armed conflict. This staggering number is unprecedented and includes crimes investigated under Ukraine’s Criminal Code, such as border crimes. Additionally, there are ordinary crimes occurring within this conflict zone, alongside investigations into the Crime of Genocide and the outcomes of the crime of aggression. These investigations fall under the jurisdiction of the Ukrainian authorities, primarily managed by the Office of the Prosecutor General and its regional departments. Managing such a high volume of cases poses a significant challenge for investigators and prosecutors alike.
Furthermore, many of these crimes have occurred in temporarily occupied territories, making access and investigation even more challenging. But Ukrainian investigators and prosecutors have accumulated experience in dealing with such scenarios since 2014, particularly in Crimea and the Donetsk and Luhansk regions. Despite these challenges, international support in the form of experts, investigators, prosecutors, and collaborative efforts greatly enhances the effectiveness of these investigations and prosecutions. This support is invaluable in ensuring accountability and justice in the face of grave human rights violations.
JURIST: Russia’s influence extends significantly into the Global South, particularly in regions like South America, Africa, and the Middle East. Could you elaborate on the support for Ukraine within the Global South? Are there specific examples of countries offering support, and how are you actively engaging to mobilize this support?
Korynevych: We are making concerted efforts to engage countries beyond Europe, reaching out to countries in Africa, Asia, and Latin America, in our collective response to Russian aggression. This endeavor presents its challenges, but we are committed to maximizing our outreach. For instance, we have already seen participation from some Latin American states in discussions regarding the establishment of a specialized tribunal to address aggression against Ukraine. Similarly, countries from other regions contribute to meetings focused on implementing Ukraine’s strategies. While progress is under way, we value and seek continued support from our international partners in expanding participation from states across various regions. Collaborative efforts on a global scale are essential in confronting and countering the challenges posed by Russian aggression.
JURIST: How has Ukrainian civil society contributed to evidence collection and preservation?
Korynevych: Ukrainian civil society plays a pivotal role in investigating alleged war crimes and atrocities committed across our nation. Their collaboration with prosecutors and regional departments is invaluable, as they work hand in hand to ensure justice prevails. Unlike traditional watchdog roles, civil society organizations here in Ukraine are genuine partners with investigators and prosecutors, amplifying our collective efforts against Russian aggression. This unique partnership extends to joint submissions to the International Criminal Court, showcasing a remarkable unity in our fight for accountability.
JURIST: Any final thoughts you’d like to share regarding the necessity of a special tribunal and how the international community can best unite in this endeavor?
Korynevych: Moving forward, I want to underscore the critical importance of establishing a special tribunal for crimes committed by Russia. This is not merely a Ukrainian concern but a global imperative to uphold the illegality of using force in international law. Over 40 states and several international organizations are aligned in recognizing the necessity of such a tribunal. It’s crucial that we leverage this momentum to pave the way for legal and technical discussions on its establishment. Furthermore, the creation of the International Centre for the Prosecution of the Crime of Aggression (ICPA) in The Hague marks a significant milestone. This collaborative effort, supported by the European Union, signifies the first international endeavor to investigate aggression since World War II. However, ICPA is just the beginning. It lays the groundwork for the eventual establishment of the tribunal, highlighting the importance of continued international support in this endeavor. In essence, if we are to uphold the principles of international law and denounce aggression, we must act decisively now to establish a Special Tribunal. This is not just about Ukraine; it’s about ensuring accountability and justice on a global scale.
