Ukraine’s agent in the UN court Anton Korynevych: Russia speculates on the concepts of genocide and self-defense

14 March 2022

Putin and representatives of the Russian political and military leadership may appear on trial. It was stated in an interview with by the Permanent Representative of the President of Ukraine to the Autonomous Republic of Crimea, Agent of Ukraine in the UN Court Anton Korynevych.

– Let’s start with a question that probably interests almost every Ukrainian now. Will we see Putin and his aides on trial in The Hague?

– We must do everything to have the president and other representatives of the political and military leadership of the Russian Federation. This issue is under the jurisdiction of the International Criminal Court (ICC), one of the international judicial bodies based in The Hague, which deals with the individual criminal responsibility of individuals for committing the crime of genocide, war crimes, and crimes against humanity. And, yes, in fact, the ISS in its activities is not related to any issues of immunity of officials. Therefore, it is possible, and we know that the ISS has already entered the investigation phase. ISS Prosecutor Karim Khan himself came to this conclusion. Plus, 39 member states of the Rome Statute submitted a request to investigate the situation in Ukraine for war crimes and crimes against humanity and to bring to justice the individuals responsible for them. Therefore, yes, the ISS can be the mechanism that will help us bring to justice the citizens of the Russian Federation for the atrocities they are committing now in Ukraine.

– What does international experience tell us? Who has already been charged in this manner?

– Undoubtedly, this is Slobodan Milosevic (former Yugoslav president accused of war crimes) at the International Criminal Tribunal for the former Yugoslavia. We had the facts after WWII, at the military tribunals in Nuremberg and Tokyo. We’re talking about the political and military leadership of Germany and Japan at the time. Furthermore, we also had facts at the same International Criminal Tribunal for the Former Yugoslavia about self-proclaimed leaders, including Radovan Karadzic and Ratko Mladic; cases on the International Criminal Court issuing arrest warrants for incumbent heads of state, and there have already been lawsuits in this regard – the case of Muammar Gaddafi, warrants for the arrest of then-Sudanese President Omar al-Bashir. Therefore, in general, this practice exists. And from the point of view of international law, in principle, everything is ready for this.

– More than 50 Ukrainian NGOs have appealed to the UN to set up a special international tribunal over Putin and Russia’s top leadership. Is it real? Should this be our separate lawsuit against Russia before the International Criminal Court or within the framework of the current one?

– Here, it is necessary to look at what institution we speak. We currently have the ICC, which is investigating possible war crimes and crimes against humanity committed in Ukraine. We have the UN International Court of Justice, which considers the issue of Russia’s responsibility as a state. As you know, a significant initiative has recently emerged, supported by Ukrainian Foreign Minister Dmytro Kuleba, to set up a special international ad hoc tribunal to investigate the crime of aggression against Ukraine and prosecute Russia’s top leadership. Yes, these are different tracks, but each one is important.

And here, we just need to look at whether the UN can really be one of the key stakeholders in this work. We have our lawsuit against Russia in the UN International Court of Justice, the main judicial body of the UN system. The International Criminal Court operates independently of the UN system, is an independent international organization, although it has special relations with the UN by its statute, but it does not directly depend on it. That is, the question is whether this special ad hoc tribunal should be brought to the UN level, realizing that Russia has the status of a permanent member of the Security Council (and has a veto. – Ed.), Which gives it, unfortunately, the opportunity to speculate, manipulate and abuse this status and the corresponding consequences of this status. Therefore, yes, such a tribunal is necessary. The question is really how to set it up better.

– Ukraine has filed a lawsuit against Russia in the UN International Court of Justice for violations of the 1948 Genocide Convention. Many call it an innovative and creative approach.

– The position of Ukraine and the filing of this lawsuit is completely logical. Innovative – you can call it that. Ukraine uses all possible means of legal protection provided by international law in connection with the armed aggression of the Russian Federation against Ukraine. Here we really saw that the Russian Federation is very active in speculating, manipulating, misinterpreting the concept of genocide. The President, other officials, and representatives of the Russian Federation at various international organizations began to say that it was some imaginary, mythical “genocide” of the Ukrainian authorities against the “people of Donbass” that led the Russian Federation to decide on the so-called alleged recognition of some entities in Donetsk and Luhansk regions of Ukraine on February 21. And the reason for the beginning of the next stage of the Russian aggression against Ukraine on February 24 in the political statement of the Russian president was that this “genocide”, which continues against some imaginary people there, can no longer be tolerated.

Since the Russian aggression started from February 2014 to February 21 and 24, 2022, when these statements were made, the facts of “genocide” in Donbas or other regions of Ukraine were not recorded or documented. We understood that it was an absolute distortion of reality. And so we really went to court to show that Russia is violating the 1948 Genocide Convention because Russia misinterprets the crime of genocide, insults, distorts, manipulates, and speculates on it to justify the use of force in Ukraine.

Russia did not participate in the hearings on March 7-8 at the UN International Court of Justice. Instead, it sent a document stating that the Court had no jurisdiction to hear a case of violations of the 1948 Genocide Convention. What’s next?

– Russia did not participate in the hearings on March 7-8, which is why the hearings took place on the same day. On March 7, Ukraine’s position was heard. There were no hearings on March 8, as Russia officially informed the Court on March 5 that it would not appear. But on the evening of March 7, realizing the importance of the UN International Court of Justice as the main UN judicial body, Russia sent a document with its arguments, which you can now see on the court’s website, it is completely open and publicly available.

Even though Russia did not come, and even if it did not submit this document, the UN International Court of Justice would still go to decide on the adoption of an interim measure. That is, from a legal point of view, the absence of the Russian Federation in court does not affect anything. We are waiting for the UN International Court of Justice to inform us that one day, at a certain time, it will be ready to make and announce its decision on the interim measure. Therefore, from a legal point of view, everything is in force, we are waiting for the UN International Court of Justice to rule on such an order and when it will be ready to issue it.

– Actually, all Ukrainians are interested in the ultimate goal. When will the decision be made? What will it be?

– Now we are at the very first stage of this case – a decision on temporary measures. That is, it is not a decision on jurisdiction or the merits. This decision on interim measures is usually urgent. In fact, it is very similar to what is called a means of securing a lawsuit in Ukraine, until the court decides on the merits, the parties are obliged to comply with certain instructions, which the court will just announce and set out in this order of interim measures.

In fact, we can wait for several years. That’s how it works. But we are very much looking forward to the decision on temporary measures soon. Our request to the UN International Court of Justice for interim measures was that Russia ceases all hostilities on Ukrainian territory; that Russia does not take any action that could violate the 1948 Genocide Convention; that the Russian Federation and all organized armed groups under its control ensure that they do not carry out active hostilities or commit crimes; and that the Russian Federation report to the UN International Court of Justice regularly. So now we are waiting for the interim measures that the International Court of Justice will eventually adopt.

– Can we add materials to our claim for violations of the Genocide Convention? Because we see the situation in Mariupol, the towns near Kyiv, the ruthless executions of civilians…

– Yes, of course. Until the last moment, on the morning of March 7, my colleagues and our legal advisers and I added the latest information, facts, and topical issues to our position to announce them in the Court. And now online platforms have been created at the Office of the Prosecutor General, the Ministry of Justice, where you can provide relevant facts. The Office of the Prosecutor of the International Criminal Court in The Hague has now officially announced that it can directly report crimes and everything else in electronic form. This war of the Russian Federation against Ukraine proceeds, therefore all new facts need to be fixed, documented. And why do it? To be used in various jurisdictions, national courts and international courts.

– Does our claim include reparations?

– We definitely included this issue in our position on March 7 during the hearings. We have announced that this is an important point, and our position includes reparations, but this is a matter for a later stage, to resolve the matter on the merits. But we will not forget, we will not forget and we will definitely include it in our requirements.

– Can Ukraine count on frozen Russian gold and foreign exchange reserves to pay us reparations? How is this legally possible? As for reparations in general: if Russia refuses to pay us money, will Russia’s assets be seized abroad?

– When we talk about the jurisdictions of different states, it is rather a question of these states, these jurisdictions, whether they can conditionally freeze something there or transfer something to Ukraine, rather than the International Court of Justice. So, here I do not see any sense in waiting for the decision of the UN International Court of Justice on the merits, which, as I said, will obviously take some time. It is rather a question of diplomatic cooperation with these states and their actions.

Regarding reparations., of course, they can and will be in substantive claim. Russia can say anything, but we need to gather this portfolio, including decisions of international judicial bodies, which allege violations by Russia, serious violations of international law. Responsibility will surely come. The question for me is not “if” but “when.” And at the moment, we just have to have these decisions to show that this is the position not only of Ukraine, as a state that has suffered from this aggression, but also of the international community.

The same applies to the decision on the interim measures order, which we expect soon. Russia can also say that it will not do it or something. But the question is that this is a decision of the main judicial body of the UN. You (Russia – Ed.) – a member state of the Security Council. How can you not comply with the decision of the main judicial body of this system? Well, this is a very big argument in favor of Ukraine. We make this decision, we go to other states, international organizations, to specialized agencies of the UN system and show: you see what the Court said, what Russia should do; put pressure on Russia, let’s make Russia do these things together.

– Russia explains the full-scale attack on Ukraine on February 24 by “its right to self-defense” under Article 51 of the UN Charter. According to the same principle, Putin can then attack one of the NATO member states. You know, this is probably a more rhetorical question: what should the UN do here?

– You know, I probably can’t really comment on it because it’s a delusion.Article 51 of the UN Charter defines self-defense as follows: “some decisions, the state may take measures of individual or collective self-defense.” That is: the state can defend itself or enlist the assistance of allies-states.

In fact, no one has the authority to deny the state the right to self-defense. However, an armed attack is required for self-defense. It is necessary to defend oneself in the event of an attack. And the interpretation that the Russian Federation has now issued… I don’t know, it’s like punching someone in the face on the street in The Hague, then claiming that I knew he had to attack me and steal my wallet. That is, it is an outright insult, manipulation, and speculative exercise of the right to self-defense. With such an interpretation, it is possible to carry out an armed attack on anyone and then claim that it was in self-defense.

I think in this case, the possible action of the UN could be the submission by the General Assembly to the UN International Court of Justice on the advisory opinion of the Court (ie, not a legally binding decision for the parties to the dispute) as an authoritative opinion of the court. where are the limits of this self-defense, where are the limits of so-called preventive self-defense, and where, frankly speaking, the use of this concept turns into speculation and manipulation. Because, I say again: what Russia says has started another stage of armed aggression against Ukraine (because the aggression has been going on since February 2014, we must not forget about it, nothing has happened) on the basis of the right to self-defense is a complete delusion. Because there was no attack on the Russian Federation from Ukraine, there could not be, it was not planned and was not prepared. No one has ever threatened the existence of the Russian Federation, no one has ever threatened to carry out an armed attack against it – this is an absolute delusion. But we see that, indeed, with this notion of self-defense, essentially preventive self-defense, Russia speculates and uses it to cover up its most gross violations of international law.