Mark Ellis, International Bar Association: Putin is unlikely to appear in The Hague anytime soon.
Why the Special Tribunal against Russian aggression has yet to commence, why some countries oppose ignoring the immunity of the Russian "troika," and whether Putin will receive an arrest warrant from the ICC for war crimes, are discussed in an interview with RBC-Ukraine by Mark Ellis, Executive Director of the International Association of Lawyers and an expert in international law.
The Special Tribunal against Russian aggression is still not operational, even though it will soon be three years since its inception. Moreover, Ukrainian and Western experts suggest that it will not launch in 2025, although some progress can still be anticipated. Mark Ellis, the Executive Director of the International Association of Lawyers and an expert in international law, previously served as an advisor during the Tribunals for the former Yugoslavia and Rwanda and is also one of the initiators of the eyeWitness application. He now regularly visits Ukraine to assist in investigating Russia's war crimes.
Why do some countries oppose condemning Russia and specifically Vladimir Putin? Why has the Russian dictator still not received an arrest warrant from the ICC for war crimes? What consequences await Mongolia for failing to arrest Putin, and what dangerous trends are emerging regarding countries' attitudes towards international law? Mark Ellis addressed these issues in his interview with RBC-Ukraine.
– My first question pertains to the Special Tribunal against Russian aggression. Some believe that the tribunal will not begin its work in 2025. Why is it taking so long to organize a court against an aggressor that has attacked so openly?
– There are two main reasons why this process is taking time. Firstly, it is important to underscore the significant support that already exists on the ground. For instance, the establishment of a working group and support from the Council of Europe are important steps forward. However, creating a Special Tribunal to prosecute an individual like Vladimir Putin for the crime of aggression is an extremely complex task for the international community. While I firmly support these efforts, it is crucial to note that there are serious challenges.
Secondly, this is an unprecedented situation. This will be the first case where a tribunal focuses on a nuclear-armed country of such size and influence as Russia. Political will is a critical factor, and Russia's position complicates this context. Although I strongly believe that the crime of aggression is an international crime that demands punishment, not all countries are equally motivated to act.
For example, some countries from the Global South may view Russia's war against Ukraine as a European issue rather than a global one. They may also perceive hypocrisy, questioning why Russia is singled out when they believe there are leaders from other countries, including the U.S., who have committed similar acts. Furthermore, these countries are pursuing their economic goals, complicating the political situation even further.
Additionally, there are legal complexities that significantly impact the establishment of the tribunal. One of the main issues is the immunity of heads of state. Should the special tribunal recognize this immunity, or ignore it? Personally, I believe that head-of-state immunity should not be recognized. However, even within the G7, there are disagreements on this issue. Some fear that ignoring head-of-state immunity could set a precedent that might later affect their own leaders. This is one of the most contentious legal questions facing the tribunal.
– That was my second question.
– Yes, the issue of impunity is indeed very controversial. If the special tribunal recognizes head-of-state immunity, individuals like Vladimir Putin and others in his circle will remain untouchable while in office (although they will lose that protection once they leave office). On the other hand, insisting on a tribunal that does not recognize such immunity may lead to resistance from some countries. For instance, the United States and several other key countries may refuse to participate in the establishment of the tribunal.
Again, creating an international tribunal that overcomes the head-of-state immunity issue is a significant challenge. It is possible, especially with strong support from the Council of Europe and participation from other countries. However, I personally believe that a tribunal that recognizes head-of-state immunity may undermine its core purpose. We know who is most responsible for this crime of aggression - it is Vladimir Putin, who must be held accountable.
– I don’t understand the part about precedents. There have been precedents in world history. Not with nuclear countries, but still. For example, a special tribunal was established to condemn the actions of the leaders of the former Yugoslavia. There was also a tribunal for Rwanda after the Tutsi genocide. Regarding Russia, I understand its influence on other countries, but the leaders of this country are war criminals.
– You rightly point out these parallels. Leaders such as Slobodan Milošević, Radovan Karadžić, Charles Taylor, and Omar al-Bashir have faced or will face justice. However, the UN Security Council established the tribunals for the former Yugoslavia and Rwanda under its powers from Article VII of its Charter.
The Special Court for Sierra Leone, which dealt with the case of Charles Taylor, was created at the request of the Security Council to the UN Secretary-General to conclude an agreement with Sierra Leone. A special court for the crime of aggression against Russia cannot rely on the Security Council because Russia is a permanent member and would veto any such initiatives. Therefore, we need to create a new model.
– But that’s absurd. I mean, Russia's membership in the Security Council considering its invasion of another state.
– I agree. However, the UN Charter provides for five permanent members of the Security Council, each with veto power. An alternative model could be a resolution from the UN General Assembly supporting the establishment of a tribunal. This was the case with the creation of the special tribunal for war crimes in Cambodia (ECCC) through a General Assembly resolution. It was a hybrid tribunal, but it also received international recognition and authority.
However, there seems to be a lack of political will in the Assembly to do the same for Ukraine. The essence is that tribunals must be perceived as international. This is important because international tribunals, such as the International Criminal Court (ICC), do not recognize head-of-state immunity. Without such status, international law requires states to observe head-of-state immunity. This means that Ukraine would not be able to prosecute a sitting head of state on its own. These legal and political contradictions create significant difficulties for the proposed tribunal aimed at Russian leaders. However, the ultimate factor is political will. The international community must continue to demand accountability and justice.
– For us, it is extremely important to see Putin in prison. Or at least to bring him to trial.
– It is important to distinguish between legal actions against individuals like Putin and the process of his arrest. An arrest warrant for Putin issued by the ICC is a significant step in international law. It sends a strong signal about the importance of accountability, focusing on the law rather than the status of the individual. This is worth celebrating.
However, arresting Putin is a different matter entirely, dependent on political will. Putin is unlikely to appear in The Hague in the short or even medium term. But history shows that leaders who seem untouchable eventually face justice. Milošević, Karadžić, Charles Taylor, Saddam Hussein, and even Eichmann (Adolf Eichmann - a Nazi official known as the "architect of the Holocaust") were ultimately held accountable.
Crimes like those committed by Putin have no statute of limitations. Sometimes justice takes time, which can be frustrating, but persistence is key. Countries need to continue to emphasize the importance of international justice. This ensures that such crimes do not go unpunished.
– In fact, my third question was about arrest warrants. The International Criminal Court issued arrest warrants for Putin and Lvova-Belova. These warrants concern the illegal deportation of children. But there was another case where an arrest warrant was issued against Netanyahu for war crimes. Why hasn't a similar warrant been issued for Putin?
– I believe there are two main reasons for this. Firstly, the accusation of illegal deportation of children is particularly powerful. The horror of taking a thousand children and attempting to "Russify" them resonates on a global level. Even those who may disagree with charging Putin with the crime of aggression find this crime unacceptable. This resonates strongly even in the Global South.
Secondly, Putin and Lvova-Belova did not attempt to hide their actions. Moscow openly acknowledged the deportation of Ukrainian children as state policy. The ICC prosecutor did not have to dig deeply to build this case because it was already evident. This clarity made it an obvious first step.
There is also a historical aspect. Putin's actions reflect the policies of Nazi Germany during World War II. For instance, Himmler promoted the kidnapping of children to "Germanize" them. This historical parallel adds weight to the decision to pursue this charge in the first place. However, I am confident that this will not be the last charge against Putin. There is extremely compelling evidence that Putin has committed other crimes, both directly and through the concept of command responsibility.
– It is really hard to understand motives when we are experiencing tragedies like the strike on a children's hospital in Kyiv. ICC Prosecutor Karim Khan visited the site of the tragedy and spoke with doctors