The first of a long series. On Wednesday, the trial of a Russian soldier for a war crime began in kyiv. Vadim Chichimarine, a 21-year-old non-commissioned officer, is accused of having shot dead a 62-year-old civilian who was riding his bicycle on February 28 in the region of Sumy, in the northeast. On the second day of the hearing, this Thursday, May 19, the prosecution requested life imprisonment against the accused, who had admitted the facts the day before. This trial, which is a test for the Ukrainian judicial system less than three months after the start of the conflict, should soon be followed by several others. For Emmanuel Daoud, lawyer at the Paris Bar and at the International Criminal Court (ICC), the pressure of Ukrainian public opinion will weigh heavily in each of these cases.
L’Express: Some observers warn against the risk of hasty judgments in the various war crimes trials that are opening in Ukraine. Do you share their fears?
Emmanuel Daoud: It seems to me legitimate to ask the question, the war continuing on a large part of Ukrainian territory with its share of bombardments, and various abuses by the Russian army. If we consider that the Ukrainian public opinion probably wants the harshest sentences to be pronounced against the Russian soldiers brought before the courts, it is natural to wonder about the capacity of the Ukrainian judges to dispense justice in an independent manner. , impartial and serene. However, in my opinion, a nuanced position must be expressed on this subject. Ukrainian justice has taken a significant risk by organizing these trials in time of war, insofar as this justice necessarily finds itself under the gaze of international public opinion, due to the strong media attention.
If, in the course of the trials to come, or in view of the sanctions that will be pronounced, the perception that prevails is that the courts have delivered expeditious justice, then Ukraine will lose a lot of its credibility, both in the eyes of the community and international organisations, than in the communication war which opposes it to Moscow. So I wouldn’t be as adamant as some commentators who feel that, given the context, it’s necessarily going to be rushed justice. My feeling is that the standards of international law will be applied. This presupposes that the rights of the defense are respected, such as the adversarial principle, of a fair trial, so that the Russian soldiers are assisted by a lawyer, and have had time to prepare their defence. For the moment, this first trial meets these standards.
kyiv therefore has every interest in giving pledges to the international community…
Ukrainian justice has accepted that foreign journalists accompany magistrates and police officers during the various investigations. This apparent transparency gives the impression that the authorities do not want there to be any doubt about the rigor and quality of the investigations and the judicial process. They probably took this position in an attempt to demonstrate that the judicial investigation process is conducted in a professional manner, with regard to international standards.
Nevertheless, isn’t there a risk that the pressure of Ukrainian public opinion will weigh in on the final decision of the judges?
Yes, there is a risk. The conflict is still ongoing, and more than 12,000 war crimes investigations have already been opened by Ukraine’s Prosecutor General Iryna Venediktova. But bombings of civilians and rapes of Ukrainian women are committed every day by Russian soldiers. This is why the pressure of the Ukrainian population on the judges is very strong. But it is up to the magistrates to demonstrate that they can disregard it. Will they get there? It’s hard to say, and I wouldn’t like to be in their shoes. However, we must remain cautious in our assessment, insofar as we do not know the specific files, and of course not to impugn the intentions of the magistrates concerned.
Was organizing a trial less than three months after the start of the conflict premature?
The only question, in my opinion, is whether in the current context, justice can be rendered calmly, independently and impartially. In France, there are immediate appearance hearings every day. That is to say that a person can potentially go to trial the day after his arrest. The reason is that the prosecutor believes that there is sufficient evidence and that the court must be seized immediately. The courts trying these cases can then decide to convict or acquit.
Let’s go back to the Ukrainian situation. The prosecution’s job is to investigate. If at the end of this investigation it considers that there are enough elements to send one or more people to trial for facts that are likely to receive a qualification, the prosecutors are in their role. It is true that we are facing an unprecedented situation, because it is the first time that we have collected so much real-time evidence on a conflict of such magnitude. But I am not offended, as a lawyer, by the fact that there are trials organized so quickly, since the prosecution considers that it has enough elements to open them.
How will these trials be articulated, and those that the International Criminal Court (ICC) could decide to open, which is also currently investigating crimes and wars and crimes against humanity in Ukraine?
This is a scenario that has already arisen in the past. In this case, there are three courts that can be seized for these facts: the first are the Ukrainian courts. The second are the courts of countries that recognize universal jurisdiction. To date, two investigations have thus been opened in France, unless I am mistaken, for war crimes allegedly committed in Ukraine. In one case, for example, the reason is that it was a journalist of Franco-Irish nationality who was killed. The prosecution therefore considered that an investigation could be opened in France. Similarly, German and Swedish courts have also been seized in other cases. Finally, the third jurisdiction to be able to deal with facts of this nature is the International Criminal Court.
These different jurisdictions work together and do not compete. If the national courts of the country where the facts take place are able to judge, the ICC does not necessarily need to intervene. In other cases, the ICC is the only competent jurisdiction, in particular when it comes to judging an active head of state. It is she who would intervene if Vladimir Putin were to be implicated. There is therefore a complementarity between these different jurisdictions.