How can we judge the man who, from Mariupol to Boutcha, authorized the worst abuses in Ukraine? How can we make someone pay who, on the night of February 23 to 24, 2022, started a war which has already cost the lives of more than half a million soldiers and civilians? There is only one way, believes Andriy Kostine, Prosecutor General of Ukraine: to provide proof that Vladimir Putin committed the “crime of aggression” – that is to say the one which precedes all others. In kyiv and The Hague, lawyers and investigators are already working on it.
L’Express: Will we be able, one day, to judge Putin?
Andriy Kostin: Since the Nuremberg Trials against the Nazis, no one has been held accountable for what is known as the “crime of aggression.” But characterizing this crime is essential, because it precedes all others [NDLR : crime de guerre, crime contre l’humanité et génocide]. If there had not been aggression against Ukraine, there would never have been all these civilians tortured, these soldiers and these children killed… We must therefore prosecute those who ordered these abuses, and first place Vladimir Putin. For this, we have two tools. First, the national procedure, since the Ukrainian Court is competent to investigate this offense. Already, we have identified 680 people suspected of committing a crime of aggression against Ukraine, and 269 have been tried – mostly representatives of the Russian political and military elite. But we are not competent to prosecute those who benefit from immunity.
We cannot, therefore, legally condemn the one who started this war, namely Vladimir Putin, the leader of Russia and his army. For this, we must resort to an international mechanism. The International Criminal Court (ICC) is not, for legal reasons, competent to judge this crime of aggression, so we must create a special tribunal. It will have to focus on the most senior members of the Russian military and political chain. It is not only about doing justice but also showing any potential aggressor that the international community is united and strong enough to punish them for their actions. This court must play a preventive and dissuasive role. Let us remember that after Nuremberg, Europe experienced decades of lasting peace. We must ensure the same with Russia.
What would this special court look like? Could it be composed of Ukrainian and foreign judges, like the Special Court for Kosovo?
To form a mixed court, Ukraine must amend its constitution, which cannot be done in wartime. To judge Putin, we must therefore create a new instrument. Legal discussions on the modalities of this tribunal are underway between our lawyers and those of the Member States and prosecutors are already working on this file in The Hague.
How do your magistrates work with the ICC which, remember, issued an arrest warrant against Putin for “illegal deportation” of Ukrainian children in March 2023?
We have a unique level of cooperation with the ICC, which opened its largest external office in kyiv last September. The arrest warrant against Putin, which you mention, is a good example of our understanding. On many cases, we provide ICC magistrates with all the evidence we can, as quickly as possible. For its part, the ICC trains our prosecutors and investigators, because we must document war crimes to the same standards.
Do you intend your collaboration to other areas of investigation?
Yes, for example environmental crimes. Until now, these have never been considered war crimes. But this subject is being raised more and more often by the international community, because the consequences of such acts are terrible and lasting. We are in discussions with the ICC, which is competent in this matter, and we are also working with lawyers and international experts, because everyone understands that lakes and rivers have no borders and that ecocides committed in Ukraine have consequences in other countries. If, together, we create an effective mechanism to collect evidence and punish the perpetrators of ecocide, future criminals will think twice before committing such crimes. Next, cyberattacks – sophisticated crimes, very difficult to unravel. With the help of modern technologies, however, we will be able, in a few months, to show to what extent these attacks constitute weapons of war and terror.
To convince that Putin committed a crime of aggression, it is necessary to prove that he himself gave orders to this effect. Not easy, given the complexity of the chain of command…
In the case of the forced deportation of children, the ICC was able to establish that Putin was personally involved in these crimes. It is therefore possible to reconstruct the chains of command for other crimes! We work very closely with the military authorities and intelligence services of certain countries to collect evidence. So, the United States began to share information. This is a very important step.
Will Moscow one day pay to rebuild Ukraine?
The more convictions there are, the more indictments there will be, and the more it will allow us to make a decision regarding Russian sovereign assets. This is a question of justice: the aggressor must compensate for all the damage and harm caused to the victims and survivors of this war, to our country, to our businesses… The only way to achieve this is to strengthen the sanctions regime and, also, to confiscate Russian sovereign assets and transfer them to an international compensation mechanism. We have already created the first level, the International Damage Register – a project supported by all our partners, including France.
The second step will be the creation of the International Compensation Commission, which will decide on the compensation arrangements. Then comes the third floor: the victims’ compensation fund. But confiscating these sovereign assets requires political will, as well as specific legislation approved by the countries that hold these sovereign assets. It is a question of vision and political commitment. To renounce it would be to fuel the impunity of aggressor countries, such as Russia. And to deprive themselves of very useful funds to rebuild Ukraine.
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