Our guest is Dr. Anton Korynevych, Ambassador at Large of the Ministry of Foreign Affairs of Ukraine. As Russia’s full-scale invasion of Ukraine hits the two-year mark – 10 years since the invasion of the Crimean Peninsula –we discuss why it isn’t currently possible to prosecute a war of aggression committed by Russia's leadership before the ICC, the need for Vladimir Putin and his inner circle to be held accountable, and issue surrounding the legitimacy of a newly created court for that purpose.
As Russia’s full-scale invasion of Ukraine hits the two-year mark – 10 years since the invasion of the Crimean Peninsula – the situation is dire. The ground battle had become mostly deadlocked until Ukrainians retreated earlier this month from the town of Avdiivka. Support from Western democracies has been skittish of late. Republicans in the U.S. Congress have stalled sixty billion U.S. dollars' worth of defense aid for Ukraine. Still, there is some hope for the resistance: the unblocking of $ 54 billion in European Union aid; Sweden has announced it will give $682 million worth of military equipment. Canada is promising to donate $70 million worth of drones from already announced spending dating back to the summer.
The word we hear a lot these days is that the conflict in Ukraine is reaching an inflection point of sorts, though shifts in momentum are notoriously hard to read in times of war.
What hasn’t changed in all of this is that the invasion of Ukraine remains a war of aggression – in violation of the United Nations Charter and customary international law. It’s also an international crime under the Rome Statute. Over a fifth of Ukrainian territory is currently under occupation by Russian troops.
Arguably, it should be possible to prosecute a war of aggression committed by Russia's leadership before the ICC, as it should not be difficult to prove.
But that isn’t the case. Although the ICC can charge individuals for war crimes, it doesn’t have jurisdiction over Russian crimes of aggression. Our guest today will discuss why that is and what a core group of members of the international community and Ukraine are trying to do about it.
Dr. Anton Korynevych is the Ambassador at Large of the Ministry of Foreign Affairs of Ukraine. He’s a lawyer specializing in public international law, international humanitarian, and international criminal law. He’s the Agent of Ukraine before the International Court of Justice, where he has been arguing the case that Russian President Vladimir Putin abused the U.N. Genocide Convention by using an alleged genocide in eastern Ukraine as a pretext for invasion).
Dr. Korynevych is also in charge of gathering international support to establish a special tribune that could try Putin and his inner circle for the alleged crime of aggression — which no international court, including the International Criminal Court, has jurisdiction to do right now.
To contact us (please include in the subject line ''Podcast''): national@cba.org
Episode 36 Dr. Anton Korynevych on the effort to create a Special Tribunal on
Crimes of Aggression Against Ukraine.
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Yves Faguy: You’re listening to Modern Law, presented by the Canadian Bar Association’s National. I’m Yves Faguy.
As Russia’s full scale invasion of Ukraine hits the two year mark, ten years since the invasion of the Crimean Peninsula, the situation remains pretty dire. The ground battle had become mostly deadlocked until Ukrainians retreated earlier this month from the town of Avdiivka. Support from Western democracies has also been skittish of late. Republicans in the US Congress have stalled $60 billion US worth of defence aid for Ukraine.
Still, there is some hope for the resistance. There’s the unblocking of $54 billion in European Union aid. Sweden has announced it will give $682 million worth of military equipment. Canada is promising to donate $70 million worth of drones from already announced spending dating back to the summer.
The word that we hear a lot these days is that the conflict in Ukraine is reaching an inflection point of sorts, though shifts in momentum are notoriously hard to read in times of war. What hasn’t changed in all of this is that the invasion of Ukraine remains a war of aggression, in violation of the UN Charter and customary international law. It’s also an international crime under the Rome Statute. And over a fifth of Ukrainian territory is currently under occupation by Russian troops.
Arguably, it should be possible to prosecute a war of aggression committed by Russia’s leadership before the International Criminal Court, the ICC, as it should not be too difficult to prove. But that isn’t the case. Although the ICC can charge individuals for war crimes, it doesn’t have jurisdiction over Russian crimes of aggression.
And why that is is what our guest today will be explaining to us and what some members of the international community and Ukraine are trying to do about it. Dr. Anton Korynevych is the Ambassador at large of the Ministry of Foreign Affairs in Ukraine. He’s a lawyer specializing in public international law, international humanitarian and international criminal law. And he’s the agent of Ukraine before the International Court of Justice where he’s been arguing the case that Russian President, Vladmir Putin abused the UN Genocide Convention by using an alleged genocide in Eastern Ukraine as a pretext for invasion. Dr Korynevych is also in charge of gathering international support to establish a special tribunal that could try Putin and his inner circle for the alleged crime of aggression, which no international court, including the ICC, has jurisdiction to do right now.
Welcome Dr Anton Korynevych to Modern Law.
Anton Korynevych: Hi Yves, great to be with you today.
Yves: Thank you for coming and joining us on the show. First of all, tell us, where are you today?
Anton: I’m in Kyiv, living here and working here in the Ministry of Foreign Affairs of Ukraine on a daily basis.
Yves: And so what’s it like now? We’re speaking, it’s February 15th. How are things in Kyiv today?
Anton: Well actually, it’s the day, quite a normal day unfortunately with this new reality provoked by Russia and provoked aggression. Today we had an air raid siren during the working day, and also we had the air raid siren with Russian missiles flying and unfortunately striking some places in Western Ukraine in the very early morning.
So it’s another day of Russian aggression. And any day can be like that with Russian missiles, drones flying over our territory and hitting our civilian objects and killing civilians who are not part of this war.
Yves: So we’re going to talk today about the crimes of aggression and your efforts to have those prosecuted in an international forum. Tell us a little bit about yourself. How did you become an international lawyer? How did you come to this position? Perhaps give us the broad strokes of how you got here today.
Anton: So I’m a Ukrainian lawyer and I have a Ukrainian education in law, in international law in the Institute of International Relations of Taras Shevchenko National University of Kyiv. I also participated in many training programs and courses abroad. And I’m an international lawyer by training and I would say by my professional career. So I was and I still am teaching international law in the same university, in the same school, Institute of International Relations of Taras Shevchenko National University of Kyiv, though now of course part time.
I was working for almost three years as a President’s Representative for the Autonomous Republic of Crimea. So I worked on the issues of temporarily occupied territories, rights of our citizens residing there, keeping contacts with our citizens and working on the occupation and reintegration of our temporarily occupied territories. And since the outbreak of the full scale Russian invasion after 24th of February 2022, I moved to the Ministry of Foreign Affairs of Ukraine where I work now as ambassador-at-large on accountability issues. So I think for me as a lawyer it’s a very natural place to be now as a Ukrainian international lawyer to do whatever I can and to do my best to bring Russia to accountability. And I think the position which I currently am in is really a good one to do this job.
So my main two issues in my portfolio are actually the crime of aggression against Ukraine and the establishment of the relevant special tribunal. And also I’m representing Ukraine as an agent of Ukraine in the International Court of Justice in the Hague.
Yves: And so what are you doing as an ambassador? What does that entail? What is your mandate there?
Anton: My mandate is everything in the Ministry of Foreign Affairs which relates to accountability of the Russian Federation and its citizens for the crimes and for the internationally wrongful acts which Russia commits and Russian citizens commit. So I’m working on this project of establishing of the special tribunal. This is a daily work. And I’m also part of Ukraine’s legal team, leading this team as agent in International Court of Justice. In our case it’s against Russia, so interstate disputes.
Moreover I’m also agent in our cases, two cases against Russian Federation in disputes regarding the violations of United Nations Convention on the Law of the Sea. So to cut a long story short, I represent Ukraine’s government in interstate disputes against the Russian Federation in the International Court of Justice and in tribunals established under the United Nations Convention on the Law of the Sea, and also working on another track on the ensuring of accountability for the crime of Russia and establishing of the special tribunal.
Yves: Okay, so I want to get into that last point. And I’m hoping you can help our listeners understand a little bit how this operates, because the international legal system is a complex one and it mixes a little bit of law and a bit of politics and a bit of geopolitics and treaty negotiation. And we have the International Criminal Court, the ICC, which is competent to prosecute grave international crimes like genocide, crimes against humanity and war crimes, and even the crime of aggression.
However, at the moment the ICC can not prosecute Russia for the crime of aggression because Russia is not a state party to the ICC. So let’s unpack this a little bit if we can for our listeners. And so my first question really is, can you explain to us what the difference is between a crime of aggression and a war crime? Help us understand why it’s important to understand that distinction.
Anton: First of all, of course, nobody questions the importance and jurisdiction of the International Criminal Court. And listeners might know that Ukraine recognizes the jurisdiction of the International Criminal Court. And today, the International Criminal Court is conducting investigations over the situation in Ukraine in relation to the three grave international crimes which you named, in particular genocide, crimes against humanity and war crimes.
Moreover, we do have already two arrest warrants for alleged war crimes of illegal forced deportation of children, issued by the ICC in relation to Vladmir Putin and Maria Lvova-Belova, so the President of the Russian Federation and the Children’s Rights Commissioner of the Russian Federation. But it is really important to understand the difference between the crime of Russia which is a force for international crime. So genocide, crimes against humanity, war crimes and the crime of aggression. And why it is important for us to work on this crime and to have accountability for this crime.
So war crime is a crime committed during the armed conflict, which is a serious violation of international humanitarian law. Or how in Canada maybe it is more widely called Law of Armed Conflict, LOAC. So serious violation of Law of Armed Conflict, which brings the individual criminal responsibility of killing civilians, raping, pillaging, using the weapons of mass destruction, chemical weapons for instance, biological weapons. So this all can be a war crime. But this is a crime which is committed during the armed conflict in the battlefield or in the temporarily occupied territories by namely soldiers and officers and, I would say, civilian leaders who lead the territory in that particular moment in history.
But the crime of aggression is a root cause of all these war crimes and crimes against humanity committed, in particular in our situation. So the crime of aggression is the crime of starting the illegal, unprovoked war of aggression. So this is a crime of starting the illegal war. And it is important for us because before 2014, before the outbreak of the armed conflict and before the temporary occupation of part of our territories, we in Ukraine, we didn’t know what is an individual war crime. We didn’t have an individual war crime in our land.
And it was because of a crime of aggression. Why? All these thousands, or hundreds of thousands war crimes, crimes against humanity and genocide is committed now by the Russian Federation’s officials, soldiers and officers, military personnel in Ukraine. So we believe that it is important for us to try not only for crimes which are the consequences, but to try also for the root cause, which is a crime of aggression. And moreover the crime of aggression is a leadership crime. So it can bring us to the top of the tree, to the big fish, to those who are responsible for giving orders and instructions to start the illegal war.
So how we call it in Ukraine and how we call it in the consultations and negotiations with our international partners, if we want to have – and we are sure that we, Ukraine and our international partners – we all want to have the full comprehensive accountability for all the grave Russian crimes. We must have accountability for the crime of aggression also. We may not forget about it, especially also taking into account that this Russian war of aggression is the biggest war of aggression, at least in Europe, after 1945. It cannot be left without legal response.
Yves: It’s the understanding of a lot of people that war is essentially made illegal under the UN Charter with a couple of exceptions. The UN Charter will authorize the use of force if the security council authorizes it and in self-defence. My understanding is that in all of the circumstances war is illegal, essentially. Here, the Russian invasion in Ukraine is the largest, I guess, cross-border land war since 1945. Why is it that we need to set up a special tribunal, an international special tribunal on crimes of aggression against Ukraine?
Anton: Well, because I think it is important for us to understand, as I mentioned before, that this is the biggest and largest aggression in Europe, and you mentioned this yourself.
Yves: But why can’t it be prosecuted already?
Anton: Because there is no forum for this. Because there is no tribunal, no court, which has jurisdiction over this crime of aggression. So I think that this is a common interest of the international community. So if the crime of aggression in such a grave instance – when we have such a brutal war of aggression, which is illegal, which is not self-defence on the Russian side, which is really the war of mass atrocities and so on and so forth – so if the crime of aggression in this particular situation is not prosecuted, then the whole concept and the whole fundamental principle of international law of non-use of force, or non-threat of force, the whole concept of illegality of use of force in international law, which you mentioned, it will be damaged.
And this whole concept will be left just only in history, you know, for students to write papers on it how it was before and how we could not succeed in this story. So we believe that in this particular instance, accountability for the crime of aggression must be ensured. And why we need a special tribunal for that, because we do not have a forum, a court, a tribunal which can try Russian officials for this crime of aggression. And we'll talk later on, if you wish, why the international criminal court, for instance, cannot do this. So we have a gap.
Yves: Well, precisely why is there no forum, because the ICC does have jurisdiction over the crime of aggression?
Anton: Exactly. ICC does have jurisdiction over the crime of aggression.
Yves: But why is it then that we have to create another court? Because the Rome Statute created the ICC, and so where is the problem? Where is the crack?
Anton: So, the problem is that yes, in general, the ICC does have jurisdiction over the crime of aggression, but it cannot exercise this jurisdiction over this crime of Russian aggression against Ukraine. Why? Because for the crime of aggression, in order for the ICC to be able to exercise jurisdiction, there should be particular jurisdictional provisions. So jurisdiction of the ICC on the crime of aggression differs from the jurisdiction of the ICC over genocide, crimes against humanity and war crimes.
So we have actually two reasons, two situations, two circumstances when the ICC would have been able to exercise jurisdiction over the crime of aggression against Ukraine. First, when both states ratified their own statute of the ICC and the Kampala Amendments to the Rome Statute.
Yves: Which is 2010, right?
Anton: Yes, which is 2010. And this is not our case. And Russia will never ratify in this particular circumstance under this leadership, will not ratify the Rome Statute and the Kampala Amendments.
Yves: Now, just to be clear, a lot of countries have not ratified the Kampala Amendments, even.
Anton: Yes, a lot of them. I think it's something like 44 ratifications up to this moment, if I'm not mistaken.
Yves: Right. And Canada itself has not yet ratified it, just to be clear.
Anton: So this condition doesn't work. And the second condition for the ICC to be able to do that, that the United Nations Security Council adopts a resolution, was reached. It refers the situation to the International Criminal Court on this particular issue of the crime of Russia against Ukraine. But this will also not be done because of the Russian presence in the Security Council as a permanent member, and the veto right. So ICC is not able to exercise jurisdiction over the crime of Russia against Ukraine, and will not be able to exercise that jurisdiction. So in such an instance, in such a situation, we have a clear accountability gap. There is no forum for the crime of aggression against Ukraine. That is why we need to build it.
Yves: So my understanding is that essentially – so back to this Kampala Amendment to the Rome Statute – so the ICC in 2018 became the first international tribunal since Nuremburg where the legal charge was crime against peace. So the ICC now is the first one since Nuremburg to have jurisdiction over the crime of aggression, it's just that it doesn't apply in this particular situation because it has not been ratified, and in fact, Russia has pulled out of it. And so I believe Canada now is part of a group of countries that is examining the idea of establishing a special tribunal on the crimes of aggression against Ukraine.
Anton: Exactly. So we do have a core group of states which meets quite often. We've had already seven meetings, we'll be having more, even this Spring. Canada is part of this core group. I would only add as of now it's not only examining the idea. I think that all the group, all the states which participate in this core group, they understand that the special tribunal should be established. We examined options for the establishment of this special tribunal, so how to do it in the most effective and legitimate way?
Yves: So how big is this group?
Anton: It's now 40 states plus several international organizations. So I would say it's a good number.
Yves: And how big does it need to be?
Anton: Well, the more the better. But I think 40 states, including all G7 states there, including pretty much all the European Union member states apart from one, now including biggest European regional international organizations. I think that this is a good group to work on this.
Yves: And so what does it take for this special tribunal to see the day and be birthed? What is needed for it to be created?
Anton: Well, first of all, of course, it's not easy to predict the exact dates and timings, because when we talk about establishing the new judicial body, of course we understand that it's not an easy task. But I think that what is needed is we need to find the option, the model for the establishment of the tribunal which would be okay for Ukraine and which would be okay for our key international partners and which will be able to be called effective, legitimate, and which could get the broad international support. I think it's doable, but to find this option is now really our main task and our main goal.
Yves: But what I'm trying to get at is what is the mechanism? Is this a vote of the UN General Assembly? How concretely does it happen or are we still trying to figure this out?
Anton: So first of all I would mention that the core group, it's not a decision-making body. So it's an informal group of lawyers from these 40 states which discuss legal and technical issues on how to establish such a tribunal. And then hopefully this core group, these lawyers who participate in it, we can produce some variance, some options which we'll be able to take to our political masters, to our leadership, both here in Kyiv in Ukraine and to [capitals? 00:21:52], so our international partners in France, and then we'll be able to see which option might fly.
So as of now there are two options which were viably discussed in the core group. The first option is the option on the basis of a bilateral agreement between Ukraine and the United Nations, which would be supported by the UN General Assembly Resolution, which can actually require a request to the Secretary General of the United Nations to enter into an agreement with Ukraine, into such a bilateral agreement with Ukraine. And that's an option which is supported by some of our international partners, is the internationalised court or tribunal, which is based on the Ukraine’s judicial and legal system.
So both the first option and the second option is supported by some states. But we do see that it's not easy to navigate and it's not easy to understand how exactly to move forward with them, so we also try now to look for some kind of a third option which would enable us to establish a tribunal. Maybe a basis of international treaty can be the right example, or some other option. So we understand the options which were discussed around this almost two years, and we try now to see whether there may be some alternative options which are able to fly.
Yves: So just for the benefit of our listeners, we're talking about a few – so one option is creating an international tribunal that would be supported by a General Assembly resolution, which I imagine requires the support of a good amount of UN members. Another option would be perhaps to create a domestic Ukrainian tribunal, and I think a third option, also, there are hybrid options that are under consideration. One hybrid option that's been used in the past was used in Cambodia, for example, that was an international tribunal but dealing with crimes domestically. What are the advantages of, for example, an international tribunal versus a domestic Ukrainian tribunal?
Anton: Well, first of all I would mention that, of course, we’d prefer the establishment of the international tribunal, and a tribunal which would be as international as it can be, the more international, the better.
Yves: Why, because it has more authoritative weight?
Anton: I would say of course authority and international recognition. International legitimacy is a very important issue. This is maybe the first argument. The second argument is that such a tribunal would be able to render judgements and verdicts in the name of the international community. And we are sure that this is very important for us here in Kyiv because we do see this Russian war as not only an issue between two states, but an issue which really matters for international relations and the international community as a whole. So it is important for us that the court, the tribunal, future tribunal, will not render judgements only in the name of Ukraine.
And the third, and probably the most important argument, is that international tribunals can overcome personal immunities of the highest leadership of a state, the so-called Troika, who are the President, so the head of state, the Prime Minister, head of the government, and the Minister for Foreign Affairs. In relation to domestic courts or hybrid courts, because I think here we really might not need the difference, because one is a hybrid court, this is a domestic court, but which is internationalised through international elements.
So the international elements are included into domestic court, for instance, international prosecutors, international judges, cooperation agreement support. But the court, either domestic or a hybrid, is established in both situations by Ukrainian law, so by national law of the state. And here I would say we have three concerns in Kyiv in relation to this option. So first of all this is an issue of amendments to the constitution of Ukraine. So in order to establish such a tribunal as a domestic or a hybrid court, if we will have international elements in this court, in particular, judges, we will need to amend the constitution.
Yves: Why?
Anton: Because we cannot have international judges in Ukrainian courts under the constitution of Ukraine.
Yves: You cannot create an international tribunal under Ukrainian law?
Anton: Under Ukrainian constitution we cannot create a court where citizens not of Ukraine will be judges.
Yves: Understood.
Anton: So for this we need constitutional amendments, and as you may know, now in Ukraine the martial law is enacted. So during this martial law there may be no amendments to the constitution of Ukraine. And more generally speaking, changing constitution in times of war, this is a rather, I would say, sensitive issue. So the second thing is the thing which I mentioned before. So rendering judgements. If this is a court established under Ukrainian law, so by the Ukrainian legislative act, it will render judgements in the name of Ukraine.
This is something what we believe will be downgrading the court, will be downgrading its importance and its international legitimacy. And the third issue, again, one of the most important, the Ukrainian national court, domestic court, or hybrid internationalised court which is established on the basis of national law – will not be able to overcome the personal immunities of Troika.
Yves: Won't be able to overcome personal immunity?
Anton: Of Troika.
Yves: So this is a leadership immunity issue?
Anton: Of three persons. Because in international law we have two concepts for immunities, which are functional immunities in relation to concrete functions of a person inside the government. Immunities ratione materiae, they are called, and we have personal immunities, which three persons do have under international law, for the time when they are on their post, on their positions. So, again, head of state, head of government and minister for foreign affairs.
Yves: And by the way, would this apply to Belarus?
Anton: So this is another important question. We do believe that when we talk about the crime of aggression, first of all we talk about commission of the act of aggression. So the crime of aggression is the start of the legal war, and this is the commission of the act of aggression by a state. And there is a concrete list of acts of aggression in international law. In the United Nations General Assembly Resolution 3314 from 14th December 74 – it's available, everybody can look at it – one of the acts of aggression in that list is giving your territory for the third state to commit an act of aggression against another state. Whether Belarus committed [such an act? 00:29:49].
Yves: And part of the invasion was launched from Belarus back in 2022.
Anton: I think the answer is obvious.
Yves: So it's not three people, it would be six?
Anton: Well, it may be. A tribunal will decide whether to limit itself only on Russian nationals, but, yes, so there is at least another one state which committed an act of aggression against Ukraine.
Yves: And so, again, to this leadership immunity issue, this is barred if you're doing this at the domestic level. And so this is why you're saying that the crime of aggression is a leadership crime?
Anton: Yes. So you cannot try a soldier or a sergeant or a lieutenant for the crime of aggression. So a crime of aggression is not only for these three persons, it can be for five persons, ten persons, 20 persons, but not for soldiers. So it's important to prosecute crimes of aggression, of course, not only of those three persons, but also of number four, number five, number six. Especially in the situation of the Russian Federation, as we understand that they are the persons responsible for this crime. But it's important also to prosecute those three.
Yves: I'm sorry to ask this, but what if, say, President Putin – whoever else is targeted by the indictments, whether it's three, four or five persons, whoever else is targeted by the indictments, against whom you would presumably file those indictments – what if they're never apprehended? Then the question is, this is a lot of effort for a small group, and I understand they're leaders, but I want you to address that question.
Anton: So first of all I think it is important for the record that these persons might be indicted for the crime of aggression. For the second time in history, up to Nuremburg and Tokyo tribunals, the crime of aggression is in place in the international tribunals. So I think that for records to have arrest warrants for these persons is important. And maybe the second part of the answer may be that we may try – I know that it's not maybe very popular and very widely used in Canada – but we can try to build a tribunal in such a way that it will be able to work in absentia, either fully, for the full process, or to some stages. And then there may be legitimate judgements made in absentia for such a tribunal. And many European states help processes in absentia, in courts. So I think here we have opportunities how to try to make it the most effective option that we can do.
Yves: I want to address some issues around legitimacy, and I know this is obviously an important component for you, but some of the criticisms around creating this special tribunal – and we're talking about the international special tribunal – is that during those negotiations back in 2010 in Kampala there were certain countries who were perhaps a little worried that the charges of a crime of aggression would be deployed against them. We're talking about major countries like the United States who have been involved in conflicts in Iraq, Afghanistan, and their allies as well.
And there are criticisms that those countries have, at the time, undermined efforts to have the crime of aggression placed on an equal pedestal as, say, genocide, and where the same jurisdictional rules would've applied. And I'm wondering, the fact that we have a special tribunal on crimes of aggression against Ukraine, I understand it works for Ukraine, but does it not let those same powers off the hook, so to speak, and does that not itself undermine the legitimacy of a special tribunal? In other words, why don't we just create a special tribunal for the crimes of aggression that applies to all conflicts?
Anton: Well, for this last question I think we have an answer, because we have ICC. So it's okay for the ICC to prosecute other instances of the crime of aggression. There are also now diplomatic initiatives to make the jurisdiction of the ICC deal with the crime of aggression stronger. So it's okay, I think, as a lawyer, that this is maybe the way forward, but we understand that they will not cover our case.
So we are talking about our case as a very ad hoc case, as a case which currently isn't covered and which will not be able to be covered. And we cannot just be silent about that. We are not saying that we want to invent something for other situations, we want to create a tribunal which would be able to be working only in relation to the crime of aggression against Ukraine.
And I think that our main international partners understand, in particular through the participation in the core group – again, I would reiterate that all the G7 states participate there – that there should be a legal response to this crime. It cannot be left without it. So it's good that we share the value and the principle, I would say. So now, on the basis of this sharing of value and principle, we are trying to find the option which would be okay, again, for us, in order for the tribunal to be effective and legitimate. And which would be okay for our international partners and for us to be able to create a tribunal which would get international support.
Yves: Assuming this international tribunal will see the light of day, how do you see it fitting into the overall evolution of international courts prosecuting crimes of aggression, where does it go from there? Could it contribute one day to creating a more general application international court against crimes of aggression?
Anton: Well, I would reiterate what I said. I think that maybe this special court for all the crimes of aggression isn't needed because we have the ICC. So, again, we see this special tribunal as a very ad hoc tribunal which works only in relation to the crime of aggression.
Yves: Let me reframe the question, then. Is there potential for this court, should it be successful, to encourage the ICC, or encourage parties to the ICC, to augment or grow its powers in terms of what it can do to prosecute crimes of aggression?
Anton: I do think so, and moreover, I think that if this tribunal will not be established, then we can forget about the crime of aggression in international law. And, again, it would be a big danger for this fundamental principle of non-use of force, or threat or force. So I think the damages to international legal order which may be brought by not establishing this tribunal, can be huge. And I think that it's crucial also for the future of the ICC, because now we have the biggest aggression – again, we would say the same words after World War II, at least in Europe – if this aggression is left without legal response. So what should not be left without response? So I think it's very obvious. So if we do not succeed now, I think we will not – the international community, international lawyers – we will not succeed with the punishment and accountability for the crime of aggression in the future.
Yves: This is a delicate part of the conversation because there's this book that came out recently by Yaroslav Trofimov, he's a Wall Street journalist and he's published a book called Our Enemies will Vanish. It's very recently published, but one of the points he makes which I found was quite interesting, though, is he talks about the early days of – well, he talks about both invasions back in 2014 but also in 2022 – this notion that Russia and Putin made the case that Ukraine is not a real country. But what makes for a little bit uncomfortable reading in this book is that the reaction of much of the world, especially following the second invasion, well, the invasion in 2022, is that a lot of the world did not think that Ukraine would survive the invasion and almost perhaps maybe justify to itself that Ukraine is not a real country.
I think the world’s been proven wrong in that regard by the actions of Ukrainians, and I think this is essentially at the core of some of the issues that we're talking about here because a war of aggression is a war of aggression from one country into another territory. But how do you react to the current environment where there are concerns about support from the West in supporting the war effort in Ukraine? And we see some political troubles again in the United States at a domestic level, even here in Canada we've had some votes on the pre-trade agreement with Ukraine. What is your reaction to that?
Anton: Well, first of all, I'm a lawyer, so I'm working on this legal side, and this is my job. So in relation to whether Ukraine is a real country, it is, and it stood up against the Russian aggression, and all these prospects, they were not realised. Our people, our army, stood tall. And I think that the way, how we counteracted this Russian aggression, really may be very important for, in particular, the West, to understand how a state which fights for its sovereignty and territorial integrity can defeat the big power, I would say, if I may say so. And I'm a Ukrainian, I'm a real Ukrainian.
Yves: I do not doubt that you are.
Anton: Yes, I have two hands, two legs, so I exist. So I think this is another proof that we are a real country. And I think that now we don't need to prove this to anybody. And another issue which you mentioned – well, again, I don't work on this instance, on that issue – but I'm sure that everything will be fine with that support, to support Ukraine’s defence, because I think the West understands how important it is in terms of common values, common principles, common goals. And what a damage it may be to all of us, notwithstanding where we are situated, in Kyiv, Ottawa, Toronto, Montreal, whatever, but this cannot be the win of the aggressor. This should be the win of the truth, and I'm sure that everything should be fine. But, of course, the military support by our key international partners is very important for us.
Yves: And so is, I would imagine, as large as possible, an international acknowledgement that a crime of aggression has happened.
Anton: Exactly. So of course the main battle is in the battlefield, and the main heroes are the armed forces of Ukraine. But it is important for us in this whole court tribunals, within this legal procedure, to prove legally that this is aggression, that this is illegal, that persons responsible for this should be brought to justice. This is important for our generation, for future generations, for us to have international law in future. There is a brilliant book on international law which is called International Law, The Gentle Civilizer of Nations, by Martti Koskenniemi, The Rise and Fall of International Law. I think that we don't want to witness the fall of international law while we work in that sphere. So I think it's obvious.
Yves: There's a strange irony about this conflict, too, is Russia’s justification for its invasion of Ukraine was an accusation that Ukraine had been committing genocide in violation of the Genocide Convention. You are involved in having that dismissed?
Anton: Yes. I am the agent of Ukraine in that case in the International Court of Justice, the case on allegations of genocide. We have just returned from the Hague – not just, two weeks ago. On the 2nd of February we had a judgement on the jurisdiction of this case. It moves forward to the merit stage and, yes, it is important for us to clear our name and to prove that Russian false manipulative, speculative accusations and allegations of genocide are false and this is not true. So, yes, this is also an important part of Ukraine’s effort in that judicial fight against the Russian Federation, but in another court, in the International Court of Justice.
Yves: And can we approach the topic, a little bit, of reparations? Is this on your radar at all?
Anton: Radar, of course, because this issue is important for all the lawyers in Ukraine who work with these issues. But my colleagues in another ministry, in the Ministry of Justice, are the main stakeholders on that issue, so I think that they are the key focal points to get in contact with on this issue.
Yves: So how are you building the case? And I know there are a lot of things going on. I know that we live in an interesting time as well, because a collection of evidence is done in a manner that is more modern. We have telephones, we have everything, we can record the events and atrocities of war in a much easier way these days. How is the collection of evidence of war crimes being carried out in Ukraine at this particular time, and how is it being coordinated among – I understand that crimes are being prosecuted in Ukrainian courts, you're looking to have the establishment of an international tribunal, possibly, or a hybrid court, possibly, or an international domestic court possibly, depending on the options – but how involved are you in trying to coordinate the collection of evidence on these crimes?
Anton: Well, this work is done by our investigative authorities, namely the national police, the security service of Ukraine, and there is a procedural management of this issue by our prosecutors, including by the prosecutor general’s office. So this is a very important job and this is a hard job, and our investigators and prosecutors do a really great job in getting all those evidence and in getting all those investigations. Because, again, such a big amount of war crimes and other mass atrocity crimes cannot happen for many years, for decades, and it's really unprecedented and it's really a very big burden.
But our investigators and our prosecutors have assistance and support by our international partners. So, yes, these cases are heard in Ukrainian courts. We are trying to set up this special tribunal for the crimes of aggression. The results of the ICC and already two arrest warrants, we are of course looking for more. So we do think that we have places where this accountability for these mass atrocity crimes can happen. And, again, I would reiterate about the great job by our investigators and prosecutors and the importance of the international community, of our partners in France who assist our investigators and prosecutors in that job.
Yves: Do you worry that the international community will not find a way to set up a special tribunal?
Anton: I hope and I believe that we together will find a way. It is important, really, for all the international legal lawyers.
Yves: What is the biggest obstacle right now?
Anton: I think I wouldn't talk about obstacles, I think I would talk about challenge.
Yves: So what's the biggest challenge?
Anton: To find the option. This is the main challenge, this is the main task. Whenever we find the option which is okay for us, for Ukraine and for our international partners, I'm sure we will be moving very effectively.
Yves: But what is difficult about finding that option? Is it a question of support or is it question of finding the legal mechanism?
Anton: It's everything. It's finding the legal mechanism, it's having support, it's finding such a model, such an option which would be okay for us and for our key international partners. So everybody should be satisfied with the option. When I say everybody I mean of course mainly Ukraine and our key international partners, because this is very important for broad international support of this endeavour, of this effort.
Yves: It's fascinating and it's quite daunting. When you got into this at first did you think you would end up doing this? Back 20 years ago when you started off as an international lawyer?
Anton: Well, look, this is my task, and I need to perform and to do my best, whatever I can to make this happen.
Yves: But did you anticipate back then that this would be ... ?
Anton: As a Ukrainian I anticipated that there may be the case that the Russian Federation would attack us. Because this has happened throughout history so many times. I think I understood this from my high school times. And when I started international law, and then researched international law, making PhD, I think I understood that we need to be ready for that, that this war can come to us.
Yves: Well, best of luck.
Anton: Thank you.
Yves: You're doing important work and I hope you are successful, and I think you will be.
Anton: Thank you so much, and thank you for your attention and for spreading the news and information about the issue. It's really important, we appreciate this.
Yves: Dr Anton Korynevych, I want to thank you for taking the time to speak with us and for educating our listeners about this very important issue.
Anton: Thank you, it was a pleasure. Happy to do that.
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