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Top British barrister: Ukraine should hold Russian war criminals to account

September 1, 2022 6:25 pmby Asami Terajima and Igor Kossov and Alexander Khrebet
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Top British barrister: Ukraine should hold Russian war criminals to accountBritish barrister Sir Geoffrey Nice speaks in front of an audience in Kyiv on Aug. 18, 2022. (Courtesy)

Editor’s Note: This interview has been edited and condensed for clarity.

After visiting the war-torn areas near Kyiv, British barrister Sir Geoffrey Nice said he was disappointed with one Ukrainian decision.

Even as Ukraine focuses its main efforts on defending itself, it shouldn’t be relying on its international partners to deal with such important matters as holding Moscow to account, Nice said. Handing the job of the prosecution to “outsiders,” who might not understand the nuances, may act against Ukraine’s national interests, he emphasized.

“None of the international courts is free of political interference,” the 76-year-old told the Kyiv Independent. “They’ll take power, start running things.” 

Nice, who took part in the International Criminal Tribunal for the former Yugoslavia (ICTY) and led the trial of ex-Serbian President Slobodan Milosevic, said Ukrainians need to be the ones prosecuting Russians for the atrocities committed in their country, even though obstacles may arise on the way. 

“I'm saddened really to hear so often that you want to hand over the responsibility (instead) of doing this yourself,” the veteran human rights lawyer said. 

Ukraine had begun war crimes investigations after Russian soldiers’ mass killings of civilians in liberated towns of Kyiv Oblast came to light.

Russian forces have also effectively demolished cities in the Donbas, such as Mariupol and Volnovakha with the apparent use of widely banned munitions such as cluster bombs. 

As Ukraine continues the daunting work of documenting atrocities, the hunt for war crime perpetrators intensifies. The Prosecutor General’s Office says it has identified over 30,000 Russian war crimes as the full-scale war reached the six-month mark. 

Vadim Shishimarin, a 21-year-old who was later given life imprisonment for killing an elderly man in Sumy Oblast, became the first Russian soldier to be tried in mid-May. But Ukraine has made little progress prosecuting war crimes since then, and international legal bodies have been slow to get involved. 

During his working trip to Ukraine, the Kyiv Independent spoke with Nice about Russian war crimes and discussed the ongoing prosecution process on both international and domestic levels. 

Destroyed buildings are seen on March 3, 2022, in Irpin, Kyiv Oblast. (Photo by Chris McGrath/Getty Images)

The Kyiv Independent (KI): What does the Yugoslavia tribunal tell you about what we can expect to encounter in Ukraine?

Geoffrey Nice (GN):  It will be very different from this conflict where there are just two sides (three, if you include Belarus). In the Yugoslavia conflict where you had three, four, and five sides but you also had the intervention with the international community, direct intervention either as observers or eventually as invaders of Serbia and Kosovo. And the consequence of that was that the international players had interests that meant they wanted to suppress evidence, corrupt evidence, and change the view of what they were doing. So that was a special problem that we had there. You're less likely to have that problem here.

But we had other problems, which were quite interesting, often arising from the fact that we couldn't get documents, and you're going to have that problem as well because you won't be able to get any documents probably out of Russia until the regime changes, and even then you won't get them. 

Just generally, because states are retentive of secret information, they don't like handing it out. So that's a problem. You've got to be inventive in going after that material.  

The documents will be in Russia. Because what's a bad document for someone, it's usually a good document for someone else. A bad document for this person is a good document for this person who needs to show that he was acting in accordance with superior orders, whatever they are. So you need to ultimately get documents, but you're not going to get that with (Russian President Vladimir) Putin in charge. 

KI: What would you assess as the strongest and most powerful evidence of war crimes? 

GN: I would have thought and said that what you really need against Russia is evidence of the pattern of destruction of domestic buildings, and blocks of flats because there's no excuse for that. And if you see a pattern over it, it's beginning to look like a pattern of war crimes. 

You've obviously got to allow for the possibility that some of the damage in the areas of actual conflict is done by the Ukrainian forces. And that's something I was looking at this morning. But if you can exclude that, (…) because there's no presence of the Ukrainian forces, then damaged domestic, non-military buildings (of) one type or another, are obviously extremely important evidence.

KI: Russia has denied targeting civilians in Ukraine. How can Ukraine react to such claims from the Kremlin and what does it need to prove its point? 

GN: Just gotta look at all the evidence. And you gotta look at the eyewitnesses, documents, and statements from the other side, especially if the statements change over time to show that they're not being honest the first time, the second, or the third time, then look at it with expert evidence. Everything contributes, nothing is valueless.

KI: You were talking about objectivity. Do you think that Ukraine should be prosecuting its own aggressor? And what about objectivity? Ukrainian courts are not so well trusted in the world, so do you think a third party ought to get involved in the process? 

GN: It depends on why you aren't trusted. Be careful about handing over responsibility to other people. What would happen if you hand out responsibility to them? They'll do more than just take responsibility, they'll start to exercise power over what's happening in your court. 

Is the only reason that you're concerned about – the corruption for which your courts may be known? Get rid of the corruption! It's more important to be able to try cases in your own country than to hand them over to outsiders, to America, an empire in decline, to Great Britain, a past empire, to Australians, on the other side of the globe. 

It's your problem, your country. And it also should be dealt with in your language. Why do you want to try it in somebody else's language where they won't understand the nuances of your language? This is your problem. And I'm surprised, I'm saddened really to hear so often that you want to hand over the responsibility for doing this yourself. You should have the courage to get on with it. And if your courts are a bit dirty, then clean the court up first. 

And if you want to be objective, and you want to make being objective, your purpose in life, you can do it, it's not difficult. You've got a long culture and long history. You're extremely inventive, highly intelligent, and well-educated – why do you want to give this to someone else? They'll take power and start running things. None of the international courts is free of political interference. 

KI: How would you assess Ukraine’s tendency to go after lower-ranked soldiers instead of senior officials who are giving the orders? 

GN: In any conflict, you've got junior-level people who pull triggers. And you've got their commanders, and then you've got their commanders, and then you've got higher commanders, and then you've got politicians. It's easier sometimes, it is thought to look at the people at the bottom. But it's also much more important to look at the people at the top. 

I'm quite sure you should start at the top. Because that's the most important resolution for the people of Ukraine. Putin, and everybody at the very top, are the people who you really need to fix with criminal responsibility if it's possible to do so. 

And does that mean you shouldn't look at the people at the bottom? No, you should look at them, of course, and you must inevitably have some trials in the early stage of a process like this, of people at the bottom, because they're the ones you can find – you can arrest them, put them in custody. And that gives some comfort to the victims generally. 

KI: How do you think the process of collecting evidence of war crimes in places like Mariupol, long occupied by Russian forces and that is unlikely to be liberated anytime soon? 

GN: Investigations are often difficult and evidence is often suppressed by the other side. And you have to work with what you've got there. It's not enough to prove the case. But you'll probably find there's a great deal of evidence. I've seen quite a lot of footage, I think of films at the time, if I remember correctly. In years and years to come, for the purpose of the historical record, you will be able to get the records of the Russian Federation, maybe. 

But the answer is, you can't look at a problem with despair and say, "Oh, I'm never going to be able to prove that." Just keep trying. And you'd be surprised what you can find out. 

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