It is desirable that they meet the standards of the International Criminal Court.
Anna Mikitenko, a Ukrainian lawyer specializing in international humanitarian, criminal law, and protection of human rights, said this in an interview with Charter97.org.
Anna works in the international human rights group Global Rights Compliance, where, among other things, she advises Ukrainian state authorities on compliance with international humanitarian law, as well as on the investigation and prosecution of international crimes.
- Tell us what the International Criminal Court (ICC) in The Hague does, what is its profile, what kind of crimes does it consider?
- The International Criminal Court deals with four categories of crimes, which are spelled out in the Rome Statute - the fundamental document for the International Criminal Court. These crimes are genocide, crimes against humanity, war crimes, and, more recently, crimes of aggression.
- What is the difference between the ICC, the Hague Tribunal, and the International Court of Justice? What is the significance of the Rome Statute?
- We, in Ukraine, as well as in some other countries, still have references to some mythical "Hague Tribunal." As a rule, it hides either the International Criminal Court or the International Court of Justice. There are several arbitration courts, one of them in The Hague, but this is less relevant to the situation in Ukraine and Belarus. Since the arbitration court is more about business issues.
The difference between the International Criminal Court and the International Court of Justice of the United Nations is that the former deals with issues of individual criminal responsibility, while the latter deals with issues of state responsibility.
I will turn to the example of Ukraine: the International Court of Justice in our case is considering whether the Russian state has violated the UN Convention on the Prohibition of Racial Discrimination in Crimea and the Convention on the Prohibition of the Financing of Terrorism in Donbas. Here we are talking about the responsibility of the state as a whole. And the International Criminal Court is studying the issue of individuals: whether they have committed genocide, crimes against humanity, war crimes, crimes of aggression.
The Rome Statute is essentially an international treaty, it was signed in 1998. I must say right away that neither the Rome Statute nor the International Criminal Court is part of the UN. The Rome Statute is an agreement between states, at the moment, between 123 states.
The ICC was created by the Rome Statute, that is, the Statute was adopted in 1998, and the court was created in 2002 - as the first permanently functioning criminal court, which can potentially resolve the issue of any country that has ratified the Statute in relation to another country that also ratified the Statute.
The International Criminal Court (ICC) was created in response to the events of the 1990s: Yugoslavia, Rwanda, Sierra Leone. After all, after the Nuremberg trials, there was no other institution that could consider the issue of responsibility for, for example, war crimes or crimes against humanity, and the UN had to promptly set up “ad hoc” tribunals on a specific case. This is how the tribunal for Yugoslavia, the tribunal for Rwanda, and the special court for Sierra Leone arose.
To prevent this from happening in the future, it was decided to create an International Criminal Court - functioning permanently, and not in response to a specific point situation.
- What categories of crimes committed and being committed by the Belarusian authorities fall under the paragraphs of Article 7 of the Rome Statute “Crimes against Humanity”?
- Let's start with the fact that in Belarus the Rome Statute is applied through several steps (as a source of international criminal law standards), that is, it is not applied directly. Belarus is not a country that has ratified the statute, the court has no jurisdiction in your country. This is important to understand because many believe that the ICC is a panacea for all problems. No, you first need to ratify the Statute, or otherwise obtain jurisdiction. But if this happens, then, based on publicly available information, we can talk about torture of citizens of Belarus in the context of Article 7 of the Rome Statute, imprisonment or other cruel deprivation of liberty, possibly persecution.
Again, in each of these cases, you need to further analyze the information.
Also, in the media, there is information about rape (detainees in Belarus - ed.), especially in the context of detention, but, again, it is still impossible to say whether these actions reach the scale of a crime against humanity. It is possible to prove the facts of enforced disappearance, but more information is needed.
- Belarus has not signed the Rome Statute, therefore, we cannot file a claim with the ICC against Lukashenka. Rome Statute can be circumvented by a special session at the UN Security Council, however, we can expect a veto from Russia and China. What can Belarusians do in this case?
- In the case of a veto, probably nothing. In general, if we are talking about advocacy efforts, of course, it makes sense to conduct public awareness campaigns: what is the International Criminal Court, why cannot it consider the situation in Belarus right now, but maybe someday it will.
Ukraine also did not ratify the Rome Statute, but it submitted an application for recognition of its jurisdiction over two situations: Euromaidan and the situation in Crimea and Donbas. These applications were submitted by the current government; the Verkhovna Rada met and signed.
You, in Belarus, have held elections and the government could potentially change. If you "squeeze" Lukashenka, then the new government that will come after him may submit such an application and recognize the jurisdiction of the Rome Statute.
- Ukraine has not signed the Rome Statute either. Why did the country decide to apply to the ICC?
- Honestly, I am not speaking on behalf of Ukraine as a state; in my opinion, they understood already at that time that there would be no objective opportunity to resolve these issues independently.
Regarding Euromaidan, there was such an opportunity, but, probably, there was not such a well-functioning justice system. But in Crimea and Donbas, in order to bring war criminals to justice, you need to collect evidence and form a criminal case. Ukraine does not have such an opportunity because the territory of Crimea is controlled by the Russian Federation and the territory of Donbas is partially controlled by the so-called “Donetsk / Luhansk people's republics,” if not directly by Russia.
An investigator or prosecutor, even on the contact line, already has limited access to collecting information. If there is shelling, not every time the investigation team can come due to security reasons, as nobody knows when the next shelling will take place.
We are talking about the territory controlled by Ukraine; it is impossible in general to cross the line of demarcation and collect evidence there because no one can guarantee security.
- The Criminal Code of the Republic of Belarus contains Article 128. “Crimes against the security of mankind,” which contains the meaning of the word “torture.” It provides for imprisonment for a term of 7 to 25 years, or life imprisonment, or even the death penalty. Can this be used to punish those guilty of repressions against Belarusians? Is there a law on torture in Ukraine?
- In Ukraine, there is an article on torture, but this article is valid in ordinary situations, that is, not necessarily in connection, for example, with revolutionary events or an armed conflict. It's just something that can happen at any moment.
In Ukraine, on the other hand, there is Article 438, which deals with war crimes. It is it that Ukraine uses in those criminal proceedings where it makes no sense to appeal to the International Criminal Court since the cases are relatively "small."
And in the same way, Belarus can use the article of the Criminal Code at the national level to resolve those issues that cannot or does not make sense to send elsewhere.
Here you also need to read the text of the article itself and understand what it is, because the Ukrainian article on torture is far from the standard of international law. Your sanction sounds closer to the sanction envisaged by the ICC because there is a 30-year threshold for punishment, while in Ukraine, for example, the lower threshold for torture is about 5 years. Obviously, this is inadequate punishment for acts such as war crimes against humanity.
- Why is it so important not to wait until Belarus is able to ratify the Rome Statute and to start collecting materials on the crimes of the Lukashenka regime right now?
- Nobody knows what awaits us in the future. Look what happened in Georgia in 2008, when there was a conflict with Russia, and the territory was occupied and continues to be occupied. Many elderly witnesses who saw it all in 2008 have already died. There is still no decision of the International Criminal Court.
If Georgia had not interrogated witnesses on its own then and would have waited now for the International Criminal Court to arrive, the information would have been lost. And the same thing happens with non-elderly witnesses: people leave, family circumstances change, and it can the case that, after a while, a person will not want to talk about these memories and sensations. After a year, he may want to turn this page of life - and that's it, the information is lost.
The same thing happens with physical evidence: if it is not collected right now, it will be lost.
- Tell us about the mechanism of universal jurisdiction as an alternative way to bring criminals to justice.
- Universal jurisdiction is a legal instrument that allows the perpetrators of the most serious crimes to be brought to justice outside the territory where these crimes were committed. In simple words, there are a number of common crimes that are very violent and pose a threat to humanity. It is not only war crimes, genocide, or a crime against humanity. This is torture, slavery, piracy.
Many criminal codes of European countries provide for such a possibility: if a crime is committed outside their territory, outside their jurisdiction, then they can prosecute for it if a number of conditions are met.
But this is where the most interesting thing begins, because initially universal jurisdiction, as a concept, was broader. It allowed prosecuting almost without any conditions. The suspect simply enters the country - and he can already be arrested.
After a series of difficult political situations, when a wrong person was arrested, restrictions were adopted in many countries. Now, in order to arrest someone, you need to have a connection between this country and the crime or the person who committed this crime.
For example, a large number of victims are in the country that is prosecuting. Or there must be some kind of connection between the criminal and this state: that is, when there are reasonable grounds to believe that he will come to this country and stay there as long as he wants. For example, bank account, real estate, family. Many countries require compliance with two or three conditions, that is, now it becomes more difficult, but it is still possible.
Germany is holding accountable for crimes committed in Syria since there are many Syrian refugees in the country and many of them are testifying.
- We know that you are helping Ukrainian prosecutors start investigating crimes that have occurred in eastern Ukraine. What advice can you give Belarusians to start investigating the crimes of Lukashenka and his associates?
- Don't wait until tomorrow. It is clear that your law enforcement forces will not collect any evidence, but human rights defenders can do it. Start already now.
This should be in compliance with international legal standards, the standards of the same International Criminal Court, regardless of the fact that the Rome Statute has not been ratified.
By themselves, these standards are such that they function in other countries, and will be useful for universal jurisdiction. Therefore, the people who collect this information must be trained accordingly.
This, of course, also applies to the situation if the regime falls tomorrow and investigations begin by law enforcement agencies (accountable to the new government - ed.). But there are a number of subtleties here.
This is the understanding that the victims should be treated in a certain way, that is, not to harm them, not to subject them to interrogations for many hours.
Information also needs to be collected with the understanding that it needs to be stored correctly in order for it to have legal significance. You need to understand that the information must be under someone's control, that all the actions taken will need to be explained.
If we say, for example, that a cartridge case was found on the square (from shooting at peaceful demonstrators - ed.), then this cartridge case should always be kept in a certain place. And if someone moves it, then it should be fixed: who, where, and why - that is, up to such subtleties.