Oleksandr Kachura, MP, member of presidential team on creating specialized tribunal on Russia’s crime of aggression against Ukraine

One of the key questions Ukrainians are asking themselves today is whether Russian men in power - Putin, Patrushev, Lavrov, Shoigu, Matvienko, Naryshkin and others - will be brought to justice and punished for their war in Ukraine. This issue is important globally, because the future international security architecture will depend on whether those individuals will be punished. If not, then whoever is stronger will rule. Whoever has a larger army will be able to easily capture the territory of a smaller neighbor. Everyone understands that this would open the gateway to chaos. To avoid future aggression, it is necessary to get punished the aggressors who unleased this war. It is for this purpose that there should be created a specialized international tribunal on Russia’s crime of aggression in Ukraine. Ukrinform talked to Oleksandr Kachura, Servant of the People MP, member of the presidential working group on the creation of a specialized international tribunal on Russia’s crime of aggression against Ukraine, about the prospects for and problems involved with the creation of such a tribunal.

- The Decree of the President of Ukraine on "Working group on the creation of a specialized international tribunal on the crime of aggression against Ukraine" nominates members of this working group. Your name in the list is marked with a bracketed note stating "by consent", along with the names of four other people's deputies. What motivated your decision to get involved with this matter?

- Officials seen on that list are all appointed government employees. Positions of people's deputies, after all, are elected positions. From a formal point of view, members of parliament can participate in that kind of activities by consent, they cannot be made obliged to participate in anything by an order or decree. Most of the people's deputies seen on that list are lawyers and international experts.

From the first days of the full-scale invasion, we have called for the need to record and document all the crimes being committed.

If we are talking about war crimes, crimes of genocide and crimes against humanity, they can be investigated by the International Criminal Court (ICC). But investigating the crime of aggression goes beyond the jurisdiction of the ICC. That is why I joined the initiative to create a new mechanism akin to the Nuremberg Tribunal, which will investigate the crime of aggression as such, the crime that gave root to other crimes and involves Russian Federation’s leaders.

This crime is being committed obviously and openly - Putin came out and gave the order to commit the crime of aggression against a sovereign country in violation of the UN Charter and all imaginable and unimaginable norms of international law.

 - But why was it important for you to join this initiative? Could you just continue working in Parliament without burdening yourself with additional tasks?

- At that time we all were looking for how to be useful to the State. I chose two directions for my effort. The first is helping my region, Sumy Oblast. My hometown of Konotop was under siege. In fact, there was no food, no hygiene products, nothing at all. There were empty shelves in stores. I remember that only black pepper packed in small bags remained there. This probably had never happened before in history of independent Ukraine. Then my team and I created a humanitarian headquarters in my office, we started bringing in food and aid through some detours. First in small vehicles, then bigger, and then still bigger ones. Later, inquiries for help began arriving from across the country. This is how Poryad (translated as “nearby” or “together”), the national information portal on self-help was born. Through this resource, tens of thousands of people have been receiving aid in selected categories: clothing, food, transport, consultations and others.

The second direction of the effort was aimed to get punished those who committed the crime of aggression. In this decision I was influenced by an advice from my friend, a military service member, one of those with whom I consulted, a person of authority to me, who is still defending our country.

We then set up cross-faction parliamentary group named “Tribunal for Russian Aggressor”. More than a hundred people's deputies have already entered this group. We passed the relevant resolution through the Verkhovna Rada, and even more, we drew up hundreds of appeals to the parliaments from across the globe, to international organizations, calling to support the creation of such a specialized tribunal.

At the same time, horizontal contacts with our international partners have been set up and worked: the  Verkhovna Rada Speaker was sending relevant appeals, we were communicating with legislators. The International Bar Association, which gathers over 80,000 lawyers from all over the world, helped us with this effort. I have signed a memorandum of cooperation with that association.

There were instances where, even at night hours when all of those horrors were happening, internal security and police officers were sending me photos, which I then sent to the Congress members and Western legislators I knew. This was helpful in changing the attitude towards Russia in the world. This effort must continue, because Russian propaganda in Europe is still very aggressive and effective.

We were actively convincing our Western partners, and this was probably what made it possible, over time, to remove all doubts regarding the need for such a tribunal. In the first weeks, this initiative was actually laughed at. Our partners were inquiring: how can anyone talk about tribunals where the very existence of your country is at stake? You are going to have a new government tomorrow, so what a tribunal, what are we talking about? Now we are already talking about the mechanisms, about the format for creating the tribunal, and about whether it will be created at all or not.

- Why a specialized international tribunal? Why can't we use our judicial system, for example?

- This is a parallel process. Our courts and law enforcement agencies are working, they have already made decisions regarding those crimes that have been committed. International organizations have got involved as well, the Prosecutor of the International Criminal Court, Karim A.A. Khan visited Ukraine several times. But here we are talking about the fact that the national legislation does not allow anyone to be convicted of the crime of aggression. This is one thing. Second, only an international tribunal that will have competency to make decisions in the name of the international community will be effective. Because if we take decision on our own based on our national legislation, then the Russian Federation, some Basmanny District Court, can also take whatever decision it wants. In the eyes of the international community, this will look like just an exchange of biased decisions by warring countries. But we need decisions that will be recognized and reaffirmed by the international community, such, for example, as the decision by the tribunal regarding former Yugoslavia. The President Zelensky's Peace Formula, in its seventh clause, provides for fair punishment for the invaders, which implies the creation of a specialized tribunal.

Let's be honest, before Ukraine began proving it is strong militarily, our partners were skeptical about the creation of a specialized tribunal, suggesting instead creating kind of a hybrid tribunal, which does not suit us at all.

 - Incidentally, this is a separate issue for a separate discussion. What is a hybrid tribunal and what makes it unsuitable for us?

- First, a hybrid tribunal works on the basis of national legislation, and Ukrainian legislation prohibits the creation of specialized courts. Secondly, a decision made in the name of Ukraine, even with the involvement of international judges, will have lesser legitimacy in the eyes of the world than a decision made by an international tribunal created by international organizations.

Therefore, when the full-scale invasion began, we believed that the specialized tribunal should be created through the following mechanism: the UN General Assembly should pass a resolution authorizing the UN Secretary General to sign an agreement with Ukraine on the establishment of the tribunal. But at that time, the UN Secretary General entered into talks with the Russian Federation about our troops withdrawal from Mariupol, for which we are very grateful to him. However, some were asking questions regarding the feasibility - how can someone who was in direct contact with the authorities of the Russian Federation sign an agreement on the creation of a specialized tribunal for members of these same authorities?

The second option provides that the tribunal should be created through a Council of Europe resolution with an annex containing the tribunal’s statute that will set out the procedures on how it will function.

The third option envisions signing an open-ended deal with, say, the Netherlands, home to the capital of justice and international law, The Hague, or with several countries on the creation of this specialized tribunal. And then other countries will be able to join this agreement. Then, once some of Russia’s top political leaders enter the territory of those countries, they will be detained and brought to the tribunal.

Whatever the option, it should include the creation of an international tribunal. Emotionally, it sounds very nice that the tribunal should be held in Mariupol, but it will not be entirely appropriate in terms of the international legitimacy of the proceedings.

- What is the prime challenge facing those working on the creation of a specialized tribunal?

- The key challenge for now is the immunity issue. The fact is that our partners are ready and willing to have such a tribunal in place, but they say that the trio -- the president, the prime minister and the minister of foreign affairs – are immune from prosecution under international law. This is unacceptable for us.

We are recommended to judge them after they step down from their positions, or where there is a new government in Russia that will allow them to be extradited.

But if justice is not served now, Russia will continue hatching new plans of aggression. If the European countries, all of the Western world delay the creation of specialized tribunal today, then respective tribunals will have to be created not to punish the crime of aggression in Ukraine, but to punish the crimes of aggression in Poland, the Czech Republic, or Lithuania. The Russians do not hide their plans and speak openly about them.

Now, I reiterate it, there is a political understanding in the West that a specialized tribunal should be created, but the question of immunity still remains on the table.

However, if we want a true specialized tribunal, rather than a nicely wrapped supplement, then we must make sure Russia’s top leaders are stripped of immunity from prosecution.  An option where a person accused of committing the crime of aggression will be judged by the tribunal after he becomes too old and dies, does not suit us.

- But if immunity from prosecution remains in place for the Russian Federation’s top leaders, then this specialized tribunal loses its meaning altogether…

- Our partners are saying that the tribunal will judge those guilty of the crime of aggression after they retire from their positions. For us, this option is unacceptable, because it does not allow for justice to be achieved. The tribunal should begin its work immediately, because the crime of aggression can be proven very easily and quickly - everything was taking place live, all crimes have been documented.

Putin had authorized the start of the war of aggression while at a meeting of his Security Council. Then he announced the beginning of what he referred to as “special military operation” and explained why he made this decision. That’s to say, the circle of persons involved is known, everything is very easy to investigate and prove.

But what is way more difficult, however, is to prove that, for example, a specific military serviceman or commander, following an order from Putin, was murdering and raping people in Irpin and Bucha. We, of course, know the identities of the Russian soldiers who invaded our soil, and they, too, will definitely be brought to justice for their committed crimes. But this is a matter of time and long investigations. Regarding the crime of aggression, there is little to investigate and prove.

- You have already mentioned the fact that approximately 40 countries have backed the initiative to ​​create the specialized tribunal. What are these countries: Western, Global South, Asian?

- These are different countries, but we cannot reveal their names because we have some agreements on that matter. For now, this is internal information. We will not make public a complete list of such countries, but I can say that these are the countries that have the greatest influence on the international political agenda.

- Are there any timelines set for establishing the tribunal?

- I think that what is needed in this case is not speed, but quality. Western bureaucratic procedures imply that a decision like this must, as they say, “lay still until fully matured”.

That said, we well understand that the specialized tribunal must be established in a reasonable time, even during the crime of aggression being committed. Because when the war ends, civilized countries can become less interested in Ukraine and its concerns.

Talking about potential peace negotiations, we are often asked: how can we negotiate with the people we are planning to judge? But everyone who tried negotiating with Russia’s top political leaders knows that they prefer speaking from a position of strength. From this perspective, the specialized tribunal will strengthen Ukraine's negotiating position.

For now, we don’t see any real steps made by the Russian Federation, indicating their readiness and willingness to talk about a just peace. Whereas they brought Yanukovych to us, suggest that we give up half of our country, force us into giving Russian the status of official language and into recognizing some kind of Novorossia, then this is not negotiations, this is a blackmail, a criminal blackmail.

Negotiation is there where you want to agree on terms that will benefit both parties. What will satisfy us is a just peace that will include, in particular, the restoration of our territorial integrity, the receipt of compensation for war damage, and that those who committed crimes be brought to justice and punished.

- Is the specialized tribunal needed only by Ukraine or is it needed by the whole world? What are your thoughts?

- The world needs it. All the dictators are now watching closely what will happen next.

If Ukraine fails to create this tribunal and those guilty are able not only to escape unpunished, but come out of this war with some bonuses for themselves and with the sanctions against them lifted, then it’s for sure that a crime of aggression will be also committed against other countries in the future.

Furthermore, this can potentially become a starting point for lots of similar conflicts around the world.

- As many as five people's deputies are among members of the working group on the creation of the specialized tribunal. What is the parliament’s role in this endeavor?

- The Verkhovna Rada’s role is very important in this regard, because we, unlike diplomats, can speak the truth about what is happening using tough, non-diplomatic language.  

Add to this, the creation of the specialized tribunal is primarily a political decision, just like joining NATO or the EU, for example. That’s to say, let me emphasize: this is a decision to be made by policy-makers. That’s where communication between Ukrainian people's deputies and their foreign counterparts will be very useful.

It is legislatures that can effectively pressurize governments into making appropriate decisions. So we must get the parliaments of civilized countries to pass resolutions, send signals to their respective political leaderships that this must be a specialized international tribunal that will remove immunity from prosecution from the top political leaders of the aggressor country.

Overall, many parliaments have responded and passed resolutions calling for the creation of the specialized tribunal. Now it is necessary that the parliaments also pass resolutions demanding that the international tribunal be held with the accused deprived of immunity from prosecution.

- Finally, tell us about your personal feelings: will we see Putin, Shoigu, Lavrov, Patrushev and others in the hall where the specialized tribunal will hold its sittings?

 - As my friend and a renowned expert in International Criminal Law, Mark Ellis says, "I believe that Putin will eventually end up in The Hague."

If it weren't for our people, our heroic guys and girls who are defending our country, we wouldn't be talking about anything at all. It’s they who make up the driving force behind achieving a just peace for Ukraine.

Interviewed by Tetyana Pasova

Photo credit of Oleksandr Kachura