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During a recent experts’ meeting on the issue of prosecuting individual actors for war crimes, the international media interviewed Milos Ivkovic, international arbitrator and adj. professor at Washington University School of Law. The coverage of that exchange is presented, below:
Professor Ivkovic has been regularly engaged in matters of confronting human rights violations and holding international powers accountable for their abuses of international law.
Q: We are just past the one-year anniversary of Russia's aggressive actions unfolding in Ukraine. You've contended, as the Chicago Tribune has previously covered, that it is possible to prosecute individual actors for war crimes not dissimilar to what we are seeing in and around Kyiv. But how does one go about this?
Milos Ivkovic: Aggression against any sovereign country is a crime under international law. It is regarded as one of the highest international crimes a country and its officials may commit. As of the first day of the war, all relevant elements of this crime were a part of the record and, hence, prosecutable. Regretfully, there was no proper legal response taken yet. In the meantime, we hear alarming examples of war crimes and crimes against humanity on a daily basis, such as forced displacement of civilians, utilization of mercenaries, indiscriminate civilian targeting or the destruction of settlements and energy sites used by and for civilian population. All of these actions should be prosecuted as war crimes. The same applies to cluster bombs and unguided missiles deliberately unleashed on residential areas, amounting to prohibited use of illegal weapons. Finally, there is sufficient evidence to prompt an international investigation of the crime of genocide, which could lead to the prosecution of those responsible. If the intention of the invasion is not to fully destroy the national group, but to remove them, then we talk about ethnic cleansing. So, back to your question as to whether there are international crimes on the public record on a substantive level – absolutely, yes.
On a procedural level, the crime of aggression, as well as most of the referenced crimes which followed, are unquestionably regarded as breaches of peremptory norms, defined as fundamental and binding principles accepted by the entire international community, from which no derogation up to any degree is permitted. No national or international law may exclude liability or responsibility for the crimes classified as breaches of peremptory norms. Meaning – not only that perpetrators of these crimes can be prosecuted, but they must be prosecuted. Addressing these crimes according to international law is the highest obligation of every international actor, of every state. Obstruction by UN bodies, such as at the level of the UN Security Council, does not affect or suspend the obligation to act. According to the International Court of Justice standing practice, when the UN Security Council acts in breach of peremptory norms, or by its actions even indirectly furthers such breaches, countries must disregard the UN Security Council and act to protect fundamental principles enshrined in the peremptory norms. Simply put, every single nation state may enact a bill and instruct its prosecutors to prosecute these war crimes, as each and every country on this planet may avail itself of the power to impose sanctions in order to stop these crimes from reoccurring in Ukraine.
On that note, some may think that sanctions are a powerful tool and, therefore, render persecution somewhat obsolete. Indeed, sanctions are an immensely important, powerful mechanism which ought to be implemented in the present circumstances. However, sanctions may be broadly understood as having the nature of injunctive relief, temporary measure. Their objective is to counter an illegal act and force it to stop. However, according to international law, sanctions can neither be punitive nor lead to punishment of perpetrators of these crimes. It is therefore that sanctions do not and cannot substitute prosecution.
Q: As an adjunct professor of law, what provoked you to call for action?
Milos Ivkovic: It is my strong belief that the call for action is perfectly aligned with the will and intention of the international community, prosecutors, judges, professors of law, who all in their respective fields are vocal about the need for prosecution for arguably most egregious violations of international law in decades, and that at hands of a nuclear power. Witnessing millions of civilians running for their lives, settlements destroyed, rules imposed by mercenaries and a truly devastating death toll pleads to us all who may have a voice to use it clearly. The world has gotten into a dangerous spiral of silence and inaction in response to the demolition of basic values and laws happening throughout the world, from the reappearance of concentration camps to child labor and effective slavery. If there is not a clear precedent that every time these crimes take place, they will be prosecuted, we are risking the world order, as we know it, to collapse. And that historically had disastrous consequences. I remain in hope that our representatives worldwide do understand the responsibility they carry.
Q: So, in your view, how has the imposition of economic sanctions on Russia failed the people of Ukraine?
Milos Ivkovic: No, I would not say that economic sanctions failed the people of Ukraine. Sanctions, in my view, were warranted, proper and necessary considering the gross violations of international law. They achieved a unified immediate response in confronting the aggression, blocked significant Russian capital both in Russia and worldwide, and triggered criminal consequences for those who attempted to avoid or circumvent sanctions. Even “neutral” states, such as Switzerland, act in accordance with the international sanctions. Sanctions are in summary achieving the best possible result, appreciating their rather limited nature. As stated before, sanctions will not bring anybody behind bars. Sanctions are equally not to be confused with indictments, hence without legal power to force prosecution or action of any court or tribunal. And that is, exactly, a problem. Crimes against humanity, war crimes, genocide, crime of aggression – they are requiring significant legal consequences. They warrant significant record, historical record, that this may not ever happen again. Sanctions themselves cannot achieve this result.
Q: Do you see this war escalating and how do you envision the practical application-oriented next steps regarding your thinking on personal prosecution?
Milos Ivkovic: In all honesty, the war in Ukraine has been escalating since its beginning in front of our eyes. Days ago, we received yet another threat of nuclear escalation. Millions of refugees from Ukraine have crossed borders into Europe. The human toll in Ukraine is reaching unprecedented levels. So, escalation is at our doorsteps, now. Whether criminal persecution may further escalate the current situation is, rather, a hypothetical – and a wrong one at that. Should we refuse to prosecute terrorists based on fear of further terrorist acts? No. The objective of criminal prosecution is not only to punish those engaged in criminal activities, but also the one of deterrence, i.e., sending a strong message to everybody else, not to dare engaging in similar illegal activities in the future. Additionally, if not even more important, prosecution gives some, admittedly remote, hope of justice for all those who lost their family members, loved ones, homes, past and future. I would hope that the nature of criminal law may deescalate the situation, especially if it is based on real evidence, which is available to the international community, as it should be, in all international proceedings.
Q: What would your call to action be to the US policy making community, to the West; what can be done to circumvent the ingrained bureaucracy of the United Nations (UN) and to allow there to be some sort of safeguard from this perpetuating month to month, into yet another year of encroachment?
Milos Ivkovic: The press coverage in the past year has been largely conveying the narrative of a lack of power to resolve the deadlock at the UN Security Council level, hence resulting in the perceived inability to form international tribunals and prosecute war crimes committed in Ukraine. According to the only reasonable interpretation of the standing international law, the two permanent members of the UN Security Council who object to any Resolution in this respect are acting in breach of peremptory norms, rendering the UN Security Council unable to conform with its duties and obliging the countries to act independent of UN Security Council in this respect. All countries who would refuse to act may be regarded as complicit and hence furthering the war crimes currently taking place. A “neutral” status of some countries is completely irrelevant in this respect as national determination of neutrality does not suspend or derogate the obligation to protect peremptory norms. In layman’s terms: Canadian prosecutors, French prosecutors, UK prosecutors, US prosecutors, may be granted power by local laws to prosecute these crimes. The only obstacle in the way of the prosecution is of domestic nature. If counties want to establish an ad hoc tribunal, they may do so – equally as they may commence criminal proceedings themselves in their independent capacity. So long as basic human rights and due process guarantees are recognized with respect to therewith indicted, the judgements established by these tribunals will be enforceable worldwide and will correspond to the historical record of what is happening now in Ukraine.
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