Jaroslava Barbieri
Alright, welcome, everyone, to today’s event on transitional justice. And before we start, I’d like to remind everyone that today’s conversation is on the record and it’s being livestreamed. So, when we get to the Q&A session, I’ll be collecting questions both from the room and also online, so get them ready, please. And we have two speakers on stage, which I’ll be presenting shortly, and two speakers online, which I already see them connecting. Can you hear us well? Just a quick soundcheck.
Professor Klaus Kreẞ
Yes, we can.
Jaroslava Barbieri
That is great.
Professor Klaus Kreẞ
We can.
Jaroslava Barbieri
Wonderful. So, today’s event will be focused on transitional justice, which is a complex concept and a complex framework and there’ve been precedents in the past. We’ll be touching up on this later in the conversation. But I’d like to show you also this reports that the International Center for Transitional Justice has recently published, and there are copies printed on the table over there and also will be shortly available, also, online. And it’s quite important because it will also outline some of the myths around this concept, some of the misleading understanding. And I think that it will be also quite accurate if you’d like to – appropriate if you’d like to touch upon some of them today. So, please pick a copy on your way out, if you haven’t done already so.
So, I think it would be helpful to have, like, a just very brief outline on what transitional justice is generally understood as. Many of you will probably be already familiar with this concept, but for those that haven’t maybe heard of it, it is understanda – and it’s understood widely as a comprehensive framework that includes both judicial and non-judicial measures, ultimately aimed at helping a society redress severe human rights abuses and war crimes in a period of transition, that from war to peace, from severe authoritarian rule to democracy. But as we also will discuss during this conversation, this is, in a way, misleading to an extent, because the documentation, the review of evidence, is already happening right now.
So, this concept of transition is actually much more complex than the term itself might suggest and includes both domestic measures, but also international measures. There’s a transactional aspect to it that we’ll be discussing today as well, and ultimately, it is aimed at ensuring accountability for prosecuting perpetrators of war crimes, but it’s not reduced exclusively to that. A very important component of transitional justice is, of course, also reparations for victims, survivors of crimes. And so, this survivor centre approach is crucial for transitional justice, but also this pursuit of the right to truth. Think about Truth Commissions. And finally, of course, this much more complex and long-term process of fostering reconciliation and also, a number of institution reform to make sure that these crimes do not occur again.
And Ukraine, specifically, had started implementing this process before the full-scale invasion, but of course, 2022 presented a number of incommensurate challenges that really accelerated a number of measures that I’ll briefly mention some of them. And then, the speakers will be approaching some of these measures specifically, to smaller or bigger degree, but for example, you’ll have heard of the Special Tribunal, which is quite an extraordinary measure in and of itself. And it will have the mandate to prosecute high-level Russian leadership for initiating, planning, implementing the crime of aggression that is outside a jurisdictional scope of International Criminal Court, for example. So, all of these nuances, the complementary role of these institution, is also something we will be returning to.
But also the Register for Damage for Ukraine, right, this evidentiary basis for the future International Claims Commissions is also quite an interesting format. But also innumerable memorialisation processes happening inside Ukraine, specialised unit within the Special Prosecutor’s Office to document, investigate war crimes, really building this local capacity. So, you see this complementarity of domestic and international measures to really deliver on this concept of transitional justice.
Because ultimately, you’ll hear this idea that we all want to aspire for a last – for lasting and just peace in Ukraine, but very often, when we find ourself in discussion around, you know, peace talks, then this dimensional justice is completely excluded. And ultimately, I think an idea that will underline our conversation today is that peace cannot last if it’s not just, both in terms of setting an international precedent, but also how to sew – mend the wounds that this war has left inside Ukrainian society. So, this dimensional justice will be crucial.
So, without further ado, let me introduce you to our guests for today. Next to me we have Dr Kateryna Busol, who’s the Head of Ukraine Programme at the International Centre for Transitional Justice, that very generously has supported today’s event. And as I mentioned, she is the author of this report of “Myth and ways forward around transitional justice in Ukraine.” She is also an Associate Professor at the National Kyiv-Mohyla Academy in Kyiv and a British Academy Research Fellow at the British Institute of International and Comparative Law. She’s actually – and a practising Lawyer. She has worked with UN Women, Globals Right Compliance [means Global Rights Compliance], Truth Hounds, so a number also of Ukrainian civil society organisation involved in this effort, and she used to be a Fellow here at Chatham House. So, welcome back.
And also, further to my left, with have Dr Anna Myriam Roccatello, who is the Deputy Executive Director and Decu – and Director of Programmes at the International Center of Transitional Justice, which she joined back in 2013, after working in the UN for over 15 years. And here she has worked particularly at the UN Department of Peacekeeping Operations, where she gained extensive international experience, particularly in criminal prosecution, mutual legal assistance, judicial reform, strengthening judicial institutions. And she also served as a Senior Policy Officer at the Organisation for the Prohibition of Chemical Weapons. So, wide – very extensive international experience, which she’ll certainly build on when addressing some of the questions.
And then joining us online we have Veronika Plotnikova, who’s the Head of the Co-ordination Center for the Support of Victims and Witnesses of War and Other International Crimes at the Office of the Prosecutor General of Ukraine. Welcome. So, she leads this unit that was established back in 2023 to provide this comprehensive legal, psychological, social support for victims, survivors within these criminal proceedings. So, really, I imagine through her remarks, really, this victim centre approach really, really come to the fore. Welcome.
And last, but not least, we have Dr Klaus Kreẞ, who is a Professor of International Law and Criminal Law, and the Director of the Institute of International Peace and Security Law at the University of Cologne. And he’s a Special Adviser to the Prosecutor of the ICC on the Crime of Aggression and his prior practice was also in the German Federal Ministry of Justice and has also a very prolific scholarly work.
So, let me start with you, Dr Kreẞ. Of course, in these discussions around transitional justice quite prominently features the Special Tribunal, but help us understand, you know, the progress today, the operational progress today of the Special Tribunal. And especially, I imagine this is a question that many will ask you, but how do we manage public expectations around prosecuting high-level Russian leadership, as many believe that these will be individuals that might choose never to leave Russian territory? So, in other words, can this trial in absentia really deliver justice for survivors? Over to you.
Professor Klaus Kreẞ
Thank you very much, Madam Chairperson and thank you to both Chatham House and the International Center for Transitional Justice for convening this event on one of the most important topics that we are currently facing on the international legal landscape. Let me, before I turn to your two main questions, perhaps underline the sentence that you made before, how remarkable it is that we have come with respect to the road towards establishing this institution, the Special Tribunal for the Crime of the Aggression against Ukraine, to this point. Let us just consider how almost impossible the general context sounds, a war of aggression launched by a permanent member of the United Nations Security Council.
Second, the establishment of an institution, a judicial institution, on a crime for which there had been no precedent for a non-domestic criminal proceeding since decades. Nuremburg, Tokyo, being actually the only precedents, seriously speaking, with respect to the crime of aggression. And the resulting divide, even among supporters, fierce supporters of Ukraine, how this institutional design should look like, with all repercussions with respect to those non-involved to come on board. And what is so remarkable, and I guess we will have the opportunity to go a little bit more into detail later, that the compromise that was found is not just the result of diplomatic exercise to find a solution, but a genuine compromise, considering the widely diverging starting points, which goes beyond the smallest common denominator. This is something that I consider so significant, both for Ukraine but also for the international legal order, which is here fundamentally at stake.
Now, on the state of play, because that was your first question, the basic legal documents are in place. The bilateral agreement concluded between Ukraine, on the one hand, and the Council of Europe on the other, annexed to which is the statute containing the essential rules governing substance, procedure and institutional design. But this does not yet make the Special Tribunal operational.
The next, and in terms of operational functioning decisive step, will be the adoption of the so-called Enlarged Partial Agreement, EPA, and this is something that perhaps I should briefly explain, because it’s not probably familiar legal knowledge to everybody. This is a type of agreement to be concluded under the auspices of the Council of Europe, which has two distinctive features. It can be activated by only a part of the members of the Council of Europe. So, it does not need the support or the explicit agreement or engagement of all those members, and particularly importantly with respect to this institution, the Special Tribunal, it can also, depending on the political will, include non-Council of Europe members to give this institution a wider reach, a wider legitimacy.
Now, the text of this Enlarged Partial Agreement is in place, so considerable advance here, as well. The text is not yet public, but it is essentially agreed and now it needs to be adopted, and here again, significant advance over the recent – the most recent time, Council – Ministers, Foreign Ministers of Council of Europe members, will gather in May this year in Moldova to make a first important decision on the Enlarged Partial Agreement, to adopt it politically. There will be a two-step process, likely, so as – a legal, or an – adopting the text from a stregal – a strict legal perspective will be a second step. But this political – this decision to politically adopt the agreement will convey the message that the necessary support within the Council of Europe is present and that activities with a view to engage more states outside the Council of Europe, can continue. And a minimum number of 16 Council of Europe member states is required and this number of 16 states in support has already quite significantly be passed.
What remains to be clarified, and this, I understand, will be crucial for the final step, the adopting of the document in a legal sense, is the financial framework. Of course, budgetary issues here as well play a role, and because the entire enterprise is unprecedented, it entails some difficult predictions as regards the budget necessary, this is something that still needs to be worked out. And I guess this will also influence the final position taken by a number of states, of which one can only hope that they will be as many as possible in numbers.
An Advance Team, a Council of Europe Advance Team has been put into place with the support of the European Union. Here you see the two international organisations chiefly in place, European Union and the Council of Europe, in order to do preparatory work, probably also to help assess the financial implications. And I guess they will also be able to build on the work done, already done by the International Centre for the Prosecution of the Crime of Aggression Against Ukraine, which was, early on, as you will recall, established under the auspices of Eurojust.
Two sentences, three sentences on your point on expectation management. I believe it will be important to convey, in particular to the public, to the population in Ukraine that are so eagerly and understandably waiting for not just justice as a hope and expectation, but justice in terms of implementation, that there will be limitations and limitations that I fear Ukrainians will feel significant for the time being. I think the overarching context against these limitations should be measures – measured, understood and also explained, is the one I mentioned before. The crime of aggression has a specific history since Tokyo and Nuremburg, a specific history which is characterised by a reluctance of many states to get serious about the adjudication of this crime.
This has made the entire process so particularly difficult, with respect or in comparison with the other crimes. And yet, it has been possible with respect to the war of aggression against Ukraine, and this is thanks, not least, to the extremely impressive diplomatic effort by Ukraine’s Government, but I would add by the constant support of Ukraine’s civil society, that we have come to a point, after extremely tough negotiations – and I repeated that the first non-domestic criminal proceedings by an international institution, the Special Tribunal for the Crime of Aggression Against Ukraine, will be possible.
Now, the two major limitations will be first, it is unlikely for the immediate future, unlikely for the time where there will be no major change in Russian Government structure, that there will be trials, proceedings, being conducted until the end, criminal trials, in the presence of the accused persons. And this is not so for legal reasons, but this is the reflection of a political reality which is not unique to the situation of Ukraine, but which you would find in many proceedings before the International Criminal Court, as well, the surrender of persons to the actual place of a trial cannot be enforced without co-operation by states. And as long as those who are accused, and in the case of crime – of the crime of aggression, these are essentially the leaders of a state, remain under the political protection of a government in place, such a surrender will just politically not be possible.
And this is the reason why Ukraine has negotiated so hard, and in the end, successfully, to get included in the legal framework governing the work of the Special Tribunal, what you have already mentioned, Madam Chairperson, trials in absentia. This was not an easy compromise at all to be found, because first of all, for a number of domestic jurisdictions, this is just not an option available. So, many states who were part of the negotiation process do not know trials in absentia in their national legal system and are, for that reason, already reluctant, or were reluctant, to accept such a solution. And at the same time, or as a second reason, international criminal courts and tribunals have only very exceptionally included such a solution. And to the extent that this happened, Special Tribunal for Lebanon, the story is not one of unqualified success, to put it that way.
Still – and there you can see how much importance was given to Ukraine’s demand in this situation. Even those who were reluctant have ultimately accepted this option, and I would argue for at least very understandable reasons. Trials in absentia are not, by necessity, contrary to existing international law. It all depends on the procedural framework, the procedural fair trial guarantees given, and negotiators of the legal framework governing the Special Tribunal have really gone at great pains to include all those guarantees which make the option of fair – of trials in absentia a fair procedural avenue.
Last point…
Jaroslava Barbieri
Thank you very much for…
Professor Klaus Kreẞ
…and probably…
Jaroslava Barbieri
Okay.
Professor Klaus Kreẞ
…the worst, or the most painful compromise to accept for Ukraine, that there will not even be trials in absentia against the so-called troika, the President, Putin himself, Foreign Minister and Prime Minister. But that the proceedings before the Special Tribunal can only go up to the point, procedurally speaking, of an indictment and will then have to be suspended as long as those three suspects or if it comes to that point, accuseds, will remain in power.
Here the main obstacle was not a political one, but a legal one. Whether one likes it or not, those three categories of high state position holders, President, Prime Minister and Foreign Minister, they enjoy a spe – especially robust immunity protection under international law for reasons that by themselves, are very reasonable. Stability of international relations, necessary functions to be carry out, even and especially if a conflict is still ongoing. But reasons that, of course, enter into sharp conflict with the demands of victims for justice in such a case.
Jaroslava Barbieri
Dr Kreẞ…
Professor Klaus Kreẞ
Here again, to focus on the positive side of things, even from the perspective of Ukrainians, the fact that…
Jaroslava Barbieri
Hmmm, Dr Kreẞ…
Professor Klaus Kreẞ
…an agreement was…
Jaroslava Barbieri
Can you hear me…
Professor Klaus Kreẞ
…struck at…
Jaroslava Barbieri
…Dr Kreẞ?
Professor Klaus Kreẞ
…the end that it would be possible to come to the point of an indictment for the crime of aggression is unprecedented and therefore, I believe, despite the shortcomings, bis – despite the desire of many to go further, quite an achievement. Thank you very much…
Jaroslava Barbieri
Dr Kreẞ…
Professor Klaus Kreẞ
…for that moment in time.
Jaroslava Barbieri
…thank you very much for this extraordinarily helpful overview and also, for having contextualised, you know, the history and extraordinary moment that we’re facing with the Special Tribunal, because it’s something I’d like to return to later on. But you quite rightly pointed out, also, this link between the international and, like, the domestic dimensions. So, let me turn to you, Kateryna. I mean, so far, my understanding is that over 240,000 war crimes have been documented already, but of course, we have exceptionally hard cases document, for example, conflicts – cases related to conflict-related sexual violence, cases with the illegal deportation and so-called re-education of children. So, help us understand, also, some of the challenges that the Ukrainian judicial system faces in working with the Ukrainian victims of war crimes and also how international partners help Ukraine’s judicial system in this.
Dr Kateryna Busol
Thank you very much, and many thanks to Chatham House for always embracing the matters of justice as the matters of peaceful settlement for Ukraine and sustainable peace. I think it’s very important to give the tangible manifestations in relation to justice, to how we see Ukraine’s future.
Indeed, Ukraine having more than 200,000 criminal proceedings now, most of which are being investigated and prosecuted in absentia, has also a number of other challenges. The crimes which you have specifically outlined, Jaroslava, conflict-related sexual violence, environmental crimes, crimes affecting children, crimes concerning cultural heritage, are notoriously difficult to investigate and prosecute, both because of the legal intricacies engaged, but also because of the particular vulnerability of the people involved, women, young children, teenagers, oftentimes members of local communities, people with disabilities. I don’t want to overtake here Veronika’s platform, where obviously, she will say how her unit supports these survivors, but I just want to underline both the number of affected persons, the spectrum and the acuteness of criminality and again, the very targeted approaches which are needed in working with such a diverse room of survivors, first.
Second, naturally, the investigations and prosecutions of these crimes do take time. Therefore, Ukraine, as Professor Kreẞ has mentioned, as the state and as the civil society, has activated a two-pronged response to these atrocities. Meaning that parallel to investigations and prosecutions, which I will remind is not just Ukraine’s obligation, but also Russia’s and third countries, because there is a duty to investigate and prosecute international crimes which cannot be left in – aside or negotiated for amnesties or other things during the peace process, but parallel to this criminal proceeding trial, Ukraine has activated the discussion about urgent interim support to survivors.
What does it mean? It means that survivors should have support with their mental health, support with couple counselling, support with relocation, support with finding the schooling for their children. Obviously, in the context of such a huge country like Ukraine, in the context of having more than five million people who moved abroad as refugees and around the same number or more who are IDPs in the country, is not that easy. So, even with urgent interim reparations, so far, we have a pilot project specifically for survivors of conflict-related sexual violence. Again, a group of very vulnerable survivors who’ve received quite narrow, unfortunately, redress so far. It has been a one-time compensation of €3,000, which at least allows the people to cover the needs which are most urgent for them, be that medical issues or issues with their housing.
The next step with these urgent interim reparations is as follows. First, this pilot project needs to be expanded to all survivors of sexual violence, not just those who benefitted from the initial pilot scheme. Second, it needs to – this project – this urgent interim support, it needs to be expanded to all other victims of torture, of enforced disappearances. And I remind us all that the UN – the Human Rights Monitoring Mission, the UN Commission of Inquiry, the Special Rapporteur on Torture, have specifically said that Russia’s use of torture against civilians and PoWs, prisoners of war, is widespread and systematic. So, the number of people affected with acute – the same acute needs for their physical and mental recovery, is also high.
Why the human rights community in Ukraine is specifically in favour of this urgent interim scheme, not only because it’s urgent support to the most affected, but also because currently, this is the only big scheme which is available to all survivors affected by Russia’s crimes since 2014, not only since the full-scale invasion. And this is another matter which I would like to raise and which is – another matter which, you know, is specifically relevant for the international community support, that the Register of Damage and the Claims Commission have a more expanded mandate. Currently, they can accept claims of harm which was perpetrated in connection with Russia’s full-scale invasion, but not since 2014.
But returning to urgent interim reparations, currently, we have a major development with, you know, the changes political – of political landscape in Hungary, hopefully, the defreezing of certain aspects on Ukraine discussion within the EU, most notably on the Ukraine support loan. And there has been a civil society appeal in late 2025, International Center for Transitional Justice is a part of that appeal, which has called upon the Ukrainian Government and the EU to accord a portion of this Ukraine support loan to fund immediate reparation to survivors. Because again, while the vast majority of survivors do support, even in absentia criminal proceedings in Ukraine, in the Hague, in the third countries, they have acute urgent needs. And we have now a chance again to expand this urgent interim support beyond sexual violence survivors, to victims of other crimes.
Jaroslava Barbieri
Thank you so much, and I mean, you’ve touched upon both some of the challenges, but also the progress and the innovation that Ukraine has put in place. So, let me turn to you, Veronika. I mean, based also on all the extraordinary work that your unit does, can you expand a bit more what kind of progress and innovation Ukraine has done in terms of implementing this type of victim centre, survivor centre, investigative protocols, reparation mechanisms, any else that you’d like to add to what Kateryna has said?
Veronika Plotnikova
Yeah, dear colleagues, I’m fully delighted to be present on such a great event and to share some of our experiences with the audience. So, my colleague Kateryna, she already mentioned a lot of things we already have done, and I want to describe some specific, you know, activities and protocols we already developed.
But first of all, what I want to say, as I see it from my perspective, you know, as a professional, but also as a Ukrainian human being, the primary need of survivors is safety, so physical safety, informational and communicational and social. And let’s be fair and let’s be clear, criminal justice, it’s, you know, it’s not a Pleasantville. It’s not something very gentle or very comfortable, even sometimes for representative of criminal justice. And when we faced with such a great challenge as wartime, and when we faced with, you know, unbelievable amount and complicity of trauma and people who were injuried, who are still suffering, we saw that we couldn’t do some things as we did it earlier. And we need to change our approaches, we need to change our procedures, and we need to change our protocols.
First of all, we decided to find a way to show our Prosecutors how they need to act with victims and interact with victims. So, you know, Prosecutors and Investigators, they are mostly focused, and they have to be focused on evidences, and they have to be focused on results of the procedures. And we showed that sometimes you need to be focused also on the procedure, how do not do harm during this procedure. And you need to see your victim not, you know, as the source of evidence, not as a, you know, somehow participant of the procedure, but as an equal part of this procedure. And sometimes you need to take into account what they want to have and how it will be more comfortable for victims to be in this procedure.
‘Cause international crimes, yes, for sure we have our domestic proceedings, a lot of stage proceedings, and we could – you know, in some cases we have verdicts in one year or two year or three years. But again, we are thinking about it as a long-term perspective, and we need to have our victims and our vulnerable witnesses in these proceedings for years and maybe for tens of years, especially if we are talking about international justice processes.
So, we decided that we need to be sure that our victims are ready to participate in such proceedings, and first of all, we need to look at their urgent needs and their long-term needs. And for Prosecutors, it’s not so easy, you know, to change your style, to change your mind or to have some time in your schedule, ‘cause we still have only 24 hours, we still have only seven days in our week. And we decided to establish a special unit in prosecution, first of all, in our Central Office in the Prosecutor General Office of Ukraine, but then in the regional offices in the most war affected regions and also, in the occupied regions.
So, we established a special unit, a co-ordination centre and also special units in the regions, it’s standalone – as a standalone departments, who are dealing with victims, their needs and communication. So, survivors may face threats of intimidation, retaliation of stigmatisation, even, you know, in these times, which significantly limits their ability to engage with justice. So, now, Prosecutors, in co-operation with Victims’ Co-ordinators as representatives of such units, they conduct a risk assessment, initiates protective measures, control restrictions of access to personal data and create safe conditions for participation in procedural actions.
But also, Support Co-ordinator, Co-ordinator for victims, plays a crucial role in this mechanism, ‘cause he or she accompanying the survivor, ensuring secure communication chaln – channels and adapting the procedure to individual needs. War violence has multidimensional consequences. Survivors’ needs arise at the intersection of three main spheres, as I see it and could be sure on this field. It’s a social field, cycle – psychosocial or mental health and legal. This includes living conditions and access to basic services, overcoming the effect of trauma and restoring rights and access to protection procedures.
So, what we see, it’s important to have a voluntary consent and this was very hard to understand for us that everything from the side of the victim need to be voluntary. He or she need to be asked about their needs, need to be asked about their expectations and we need to have a consent for actions with victim and about victim. ‘Cause again, victims – so, now we see victim is not only a source of evidence and it’s – he or she is not a source, he or she is a subject. And I think it was a main mind-blowing change in protocols, in procedure, and in everything else.
But again, what we are talking about assistance and Victims Co-ordinators, so now assistance is provided on the basic of individuals’ needs assessment. So, we took into account EU directive, also, for victims’ rights, and we implemented on this field, and we made it more comprehensive and tai – you know, and tailored for our needs. So, we are talking about, you know, person-centred model, not even a victim-centred, but individual-centred model and the principle of preventing traumatisation. So, even now, if we are talking about procedural interviews, we are talking about this right to be asked, “Are you ready to be interviewed by a man or a woman? Are you ready to be interviewed in this premise or maybe you want to be in another place, maybe even in your housing?”
So, many of our situations, they are – involve health issues, loss of documents and income, risk of losing housing, psychological consequences, and also, very complicated family and social dynamics. For example, if we are talking about victims of seriously, if we are talking about our prisoners of war, our civilian hostages, we are talking not only about one person who was victimised. We are talking about a whole family, and we need to work with the whole family, you know, to integrate them and to help them, ‘cause when we are talking about justice, we are not talking about the procedural justice. We are talking about achieving justice in a, you know, more comprehensive way and sense.
Jaroslava Barbieri
Okay, Veronikia…
Veronika Plotnikova
Our Co-ordinators…
Jaroslava Barbieri
…but…
Veronika Plotnikova
…also conduct case management and this case management should personalise support and effective referral to appropriate services.
Jaroslava Barbieri
Yes.
Veronika Plotnikova
Just one last point about it. Yes, for sure, you know, a lot of expectations were put, you know, on international justice. I am talking about victims, and they are still looking at it, but their needs, they are urgent, and they need to be covered right now. So, you know, when someone has a, you know, mind combined trauma, he or she couldn’t wait for years and couldn’t wait for years for this surgery or something like that. But what we need to do, we need to care – we need to cover basic line, we – and basic needs. We need to help our victims, you know, to be ready to live their lives and we need to help them to go through all of these processes.
So, yes, we have protocols, but first of all – now, in my humble opinion, we have this change in mindsets and change in the role of the victim in this process. And as for me, it’s an essential part of accountability and it’s an essential part of transitional and reparative justice.
Jaroslava Barbieri
Thank you so much, Veronika, again, like, the extraordinary work that you and your unit does. I mean, throughout this conversation, we’re really seeing this interaction between the national, the domestic and the transnational dimension and I cannot think of anyone better to, sort of, bring us back to this, sort of, transnational dimension. And particularly because Ukraine is not the first country that has attempted to implement a comprehensive framework transitional justice. I’m thinking of Colombia, I’m thinking of the Balkans. Are there any valuable lessons that you can draw from these other countries, other precedents? Over to you.
Anna Myriam Roccatello
Thank you very much for the question and thank you very much. It’s really a pleasure for me to be here finally in person. Of the many events that we co-organised together, it’s the first time I finally see this beautiful venue. But yes, of course, the models and experiences of transitional justice, you know, are – some are actually dated centuries ago. But if we even consider just the contemporary history, there are several different countries that went in different historical moments and because of very different political developments, through what we define largely as transition.
Now, recent – the most recent history demonstrated that actually, the transitional processes actually start before and particularly when hostilities are still present, when the, let’s say if not ideal, but conducive conditions to start addressing massive violation of gross human rights, may not be all present. And it’s exactly because these processes, particularly the demands of victims and the assistance of civil society and academy, that these processes are prepared when the transition is yet to come, that then the process can really start up and be – and hopefully, be routed and endorsed by the society concerned.
But coming now to the most, let’s say the most – what comes, you know, immediately as a comparison and what Ukraine could look at. The – my first recommendation would be not to look at countries as a whole, but individual initiatives depending on the issue that Ukraine wants and wishes to address. Certainly, if we talk about the Balkans, I think the first lesson, being, by the way, a veteran of the Balkans, is that an overfocus on criminal accountability and particularly international criminal accountability, has very long-lasting negative implications if it’s not accompanied by societal processes that trickle down the truth and the experience of the victims in larger societies that remain manipulated or can, in any event, have a political interest in dispute, the truth. Even when established by the most formal legal proceedings, like an international tribunal.
So, this would be my first – you know, the reference to the Balkans. Of course, beside Bosnia Herzegovina, that is the context I’m asked very often to opine on in comparison to Ukraine. I would bring the example of Kosovo, a jurisdi – a country, at the time a territory when I started working there, where there was a clear victim, the Kosovars. And then, working in Kosovo, we realised that actually, violations were committed by multiple parties. That the issue of collaboration, for example, during the insurgency fight was a incredible difficult issue that still divides the Kosovo society to this day. And it was incredibly difficult, if not impossible, to tackle it only through a criminal prosecution lens. We all know how the criminal proceedings against the Former Prime Minister ended. The huge and incredibly hurting, personally, experience of losing witnesses every day because of intimidation, because of the stigma, because of the needs that these victims and witnesses had and we could not cater for.
So, certainly, a very important lesson there, but let’s go to Colombia now. Colombia, that we all – all practitioners of transitional justice look with wonder the most comprehensive and advanced model of transitional justice that we are currently exp – you know, putting in place altogether. I put myself into it because of the time and great honour I have in working in Colombia. Well, the immediate lessons, Colombia in 52 years of conflict, before reaching the 2016 Agreement, went through multiple attempts of transitional justice and many of which were focused on criminal accountability. And it’s only by trial and errors that finally, there was a more spread understanding that these nee – these processes needed to be complemented by taking care of the victims, a comprehensive administrative programme of reparation, which is extremely ambitious in Colombia.
Colombia also offers almost a unique perspective on how to integrate millions of IDP in the transitional justice process, something that Ukraine, regrettably, will need to factor very much and very early into a transitional justice policy. It offers the – and I was – you know, I always listen to Veronika with such an admiration and incredible affection for what she and her colleagues, also in other parts of the Special Prosecution Office, are doing. But if you take a look at particularly the recent literature on Colombia and now in the, for example, the policy of President Pedro to extend and change the political frame of transitional justice, making it a total plea – peace project, what is at the root of that?
One of the main, let’s call it problem, or let’s call it lesson, is that notwithstanding the very well-articulated, complementary system in Colombia, that sees a special par – a Special Jurisdiction for Peace, an Administrative Reparation Programme, a special unit for the search of the disappeared and very wide and incredibly robust institutional reforms, the overfocus remains on the Special Jurisdiction for Peace. And when listening to Veronika, my first instinct, as somebody that has spent 30 years in this field, is it will end up that victims have only that office and that effort to rely on.
And that is something that Ukraine cannot afford doing, because it cannot be only on the shoulders of judicial professionals to provide a comprehensive response jud – justice response to a conflict, particularly in a situation of foreign aggression. The entire population of Ukraine has been defined and officially established as a victim. The responses must be multifaceted and must include a diverse and multidisciplinary, even, and multi-institutional response. So, the immense respect for what they are already doing, they are the best demonstration that something different, more, and more accessible to more people is absolutely required.
Jaroslava Barbieri
Thank you so much, and actually, let’s stay on this dimensional, trying to contextualise some of these initiative, historically, as well. So, I’d like to have a second round of remarks from our speakers a bit quicker than the previous one, and so, start thinking of some of the questions that you’d like to pose to our speakers. But Dr Kreẞ, you also mention, you know, Nuremburg as the first, perhaps, precedent against – on the prosecution of the crime of aggression, that I remember, if I’m not mistaken, that time was crime against peace…
Member
Yeah.
Jaroslava Barbieri
…code. But, you know, that in a way was a agreement between victors over the defeated, from, you know, a judicial point of view, and if we look at more recent precedents for the International Criminal Tribunal over former Yugoslavia, Rwanda, those were UN mandated, in a way. So, I mean, we live in a very different international landscape in which, you know, many are arguing for reform of the UN Security Council, that feels paralysed, but of course, also looking at, you know, the context of the Russia-Ukraine war, we live in a context in which these kind of outright military victories feel elusive, in a way.
So, you know, thinking about the, as you mentioned, the Special Tribunal, is this Special Regional Agreement between the Council of Europe and Ukraine, the victim of aggression, with an ever-expanding, you know, Coalition of the Willing, in a way, of supporters of this new, kind of, model of justice around the Special Tribunal, which is – in a way, is a third way. But are we moving away from this idea of a universal enforcement, you know, mandated by the UN? You know, if we’re thinking about ensuring international – the international rules-based order, international law, in the future, is the only way moving towards these, whether legal or security Coalition of the Willing? We have a secur – a Coalition of the Willing supporting the establishment of the Special Tribunal. We have a Coalition of the Willing supporting Ukraine’s – in the military sense. So, is that the only way for then ensuring, you know, the upholding of the international rules-based order in the future? What’s your take?
Professor Klaus Kreẞ
The answer is yes and no, Madam Chairperson. Yes, in the sense that it cannot be denied that essentially, a Coalition of the Willing, if you wish to use this term, has been acting and instrumental and has made this very special, unprecedented institutional design now coming close to a reality. Why? Essentially, as you say, because there was no true or international, or let me say universal, pathway open, for many reasons you have mentioned, the most obvious one, the fact that the Security Council here is obviously blocked.
Now, is this, by itself, something to be criticised as a shortcoming, as a failure? I believe that’s not the case. I believe that especially when it comes to international criminal justice, flexibility, differences in institutional design have always been part of the architecture. There has never been a call that the implementation, that the actual adjudication must take one form, one institutional design. And this has been also the case since the International Criminal Court has come into existence. Think of the principle of complementarity which implies the idea that ultimately, it is a flexible strategy that should be used always with a view what is best and what is the most tailor-made solution to the individual situation at stake, with the demands, the lit – the legitimate demands of the immediate victims being an important consideration.
Now, when it comes to the specific case of the crime of aggression in this specific situation, there are many and I am among those many who would have thought that a truly international, a universal response, also reflected in the institutional design, would have been the most preferable solution. Why? Because there have been so little precedence so far that this specific crime, the crime of aggression that provides a sanction for the violation of the prohibition of the use of force, comes into existence. So, with respect to this peculiar history of what began as crimes against peace, you have mentioned and it’s now being called crimes again – crimes of aggression, a universal response would have been the most powerful message to articulate what is at stake here is of course, very much Ukraine’s suffering, but also the idea of an urgent need to strengthen the international legal order.
And final point, it would also have enhanced the legitimacy of the process, because let us face this, and this is nothing that Ukraine bears any responsibility for, we are faced with a peculiar problem of legitimacy when it comes to the crime of aggression. And this problem is rooted in the ICC statute, with its jurisdictional gap which is peculiar to the crime of aggression. And this has sparked scepticism, in particular outside Europe, in particular outside the Western world, about why this Coalition of the Willing is putting so much energy into the case of Ukraine. So…
Jaroslava Barbieri
Dr Kreẞ…
Professor Klaus Kreẞ
…what is the…?
Jaroslava Barbieri
…since you…
Professor Klaus Kreẞ
What is the…
Jaroslava Barbieri
One…
Professor Klaus Kreẞ
…remedy? Sorry?
Jaroslava Barbieri
Dr Kreẞ, one second. Since you brought up this issue of scepticism, let me maybe bring you quickly in, because we were discussing about this before. I mean, how can the framework of transitional justice also help Ukraine build international solidarity beyond this, kind of, Western bloc?
Anna Myriam Roccatello
Well, it’s undoubtable that certainly, the response – the international response, particularly since the full-time invasion – full-scale invasion in Ukraine, has been divisive in member states. Because at the same time, we had simi – not similar, but equally dramatic situations that were not equally – or the perception was that they were certainly not equally considered and didn’t trigger the same level of support and assistance. That is the truth.
Now, Ukraine, in all the diplomatic efforts that Klaus was mentioning, has also been – at the technical level, has also started to reach out to member states that have very relevant experiences on transitional justice. I’m talking about the search for the disappear and in particular, for all the co-ordinated effort for the abducted children that we will require a very sophisticated, a sui generis response, within the framework of enforced disappearances processes.
The other – the international prosecution, for example, it’s true, and Ukraine has been quite clear that while grateful for the international initiatives and the assistance to national authorities, they have the capacity and the interest and knowledge to lead these processes, including criminal accountability. And therefore, having a direct contact and enjoying and benefitting from the experiences of countries like Argentina, like Colombia and for example, 240,000 criminal cases, it’s unmanageable for any jurisdiction.
The ability to speak to practitioners and other – and authorities, prosecutorial authorities in Colombia, for example, that have made concerted decision on how to assemble cases and go, for example – and in – and go for macro cases and how they are dealing with all those cases that do not fall into the mac – this is – it’s golden as an experience. And – but certainly, the technical peer-to-peer relationship must be also elevated at the political level. And the real problem remains that Russia is still perceived by some non-aligned countries as a power that doesn’t fall into the inter-realistic, right, strategy. Which is, of course, for those of us that know Ukraine, or are Ukrainians, it’s very difficult to accept, but remains the real elephant in the room.
And therefore, there is a need for a very honest discussion on there are different form of imperialism and maybe you see us as lucky because we are close to Europe and because we have very strong ambition to become European, but we are aggressed. We were – you know, we are suffering a pure aggression.
Jaroslava Barbieri
No, thank you for this incredibly important point, and I wonder, is possibly a way to get around these historical sensitivities and discrep – and historical experiences, for Ukraine, also to build international knowledge around something that you’ve mentioned, also how harm to the environment…
Anna Myriam Roccatello
Right.
Jaroslava Barbieri
…systematic destruction of Ukraine’s cultural heritage during Russia’s full-scale invasion, could that help also build this international solidarity? And how do these perhaps less spoken elements fit within the broader transitional justice framework?
Dr Kateryna Busol
Thank you. Well, I think it’s generally an important point that certain crimes in the vast criminality of what Russia is perpetrating, certain crimes receive less attention. Definitely crimes affecting cultural heritage and the crimes against the environment. With cultural heritage, it’s so important to show how it’s weaponised, for instance, the narratives about history, how they’re weaponised in the school curricula. The UN Committee on the Rights of the Child specifically has noted that Russia weaponizes and militarises school curricula in occupation and in Russia itself to build the narrative around the war and to strip the Ukrainian youth of their identity, right?
We also speaking about the massive displacement and appropriation of cultural heritage and its misrepresentation according to Russia’s narratives. These practices are obviously very imperial and Ukraine should just communicate, and Ukraine does it, again, as a state and as a civil society. Last month we have a – we had a big gathering in Johannesburg with many African nations, specifically exchanging both on the legacies of our oppression and on the ways we’ve confronted them, and it’s so much to learn. Both South Africa and Colombia have engaged religious leaders in their transitional justice processes. They have accorded a particular strong element to truth-seeking in securing justice. We’ve also learned, in the case of South Africa, how the non-consideration of sexual violence and gender inequality and the lack of the unequal distribution of wealth in the country, has affected the more stable recovery afterwards. So, Ukraine is trying to communicate these messages.
The final point which I would like to make on the issue of the environment is that recently, the International Criminal Court presented its new draft policy on dealing with environmental crimes. And it has specifically stated that crimes – the specifically severe and widespread attacks on the natural environment are relevant for assessing the crime of aggression, because it’s about the possibility to maintain the natural habitat, to continue employment in a particular area. It’s about reproductive health and the ability of the nation to renew itself. So, I’m hoping, while we are building the Special Aggression Tribunal, eventually the proceedings there will also look at the cultural and environmental dimensions of the wider crime of aggression which Russia’s perpetrating.
Jaroslava Barbieri
Yeah, thank you for highlighting all – also these links. I think sometimes they fall under the radar. And last question before we open the floor to question. Veronika, briefly, if possible, but I mean, there’s one last exceptionally important angle that I think it’s worth bringing to the conversation and of course, actually, Myriam has already touched upon this, but how can Ukraine’s judicial system help distinguish between actual cases of collaborationism, particularly in the occupied territories, and people that ended up co-ordinating, collaborating with the occupation administration to survive?
Veronika Plotnikova
It’s one of the most sensitive and, you know, complex questions for us now, and in, you know, in perspective, ‘cause now we don’t have access to our occupied territories. Not only we don’t have access, but also international organisations, as you know, with some rare exceptions. And how we could receive an information in different ways from some people who are living in these territories or from, you know, open sources and publications? But again, we are talking, you know, about expectations of our society, what they’re focused on and they’re very focused on the punishment of collaborators. And we could see it from, you know, from different relations and, you know, different public speeches, but also, we could – you know, we could hear it even on streets and in some private communications.
But first of all, we need to see it in a legal perspective, and we need to put on our legal hats and Lawyers’ hats, but also, we need to put on our hats of, you know, of policymakers, you know. ‘Cause when we talk about reconciliation, we don’t talk about reconciliation between Ukrainians and Russians. We are talking about reconciliation with our – in future, the occupied territories, as a population on occupied territories. And what I see, again, from my perspective and from my humble opinion, what I see, what we need to be focusing – focused on, on the intent, agency and the severity of the act.
I’m sure that in the future and even now, ‘cause we already have these criminal proceedings, political and ideological collaboration should be, and will be, you know, in this frame is – you know, occupying leadership roles, spreading propaganda, joining the security forces of the occupier, it’s – you know, it should be universally prosecuted. But when we are talking about, you know, public utility workers, for example, or medical staff who stayed on those territories to help a population, you know, to provide some support and help, yes, they are not only survivors, but they helped to survive to others.
Jaroslava Barbieri
Thanks, Veroni…
Veronika Plotnikova
Again, what…
Jaroslava Barbieri
Thank you, Veronika. I mean, it’s impossible to capture the complexity of…
Veronika Plotnikova
Hmmm.
Jaroslava Barbieri
…these cases that you’re referring to, but it literally gives us a glimpse into the…
Veronika Plotnikova
Yeah.
Jaroslava Barbieri
…huge challenge that Ukraine has to face. But I’d like to now open the floor for questions. I’ll be taking three from different corners of the room, or blocks of three. So, gentleman here with the white jacket, please. Briefly introduce yourself.
John Cubbon
Yeah, okay. Hello, my name is John Cubbon. I’m a member of Guernica 37 Chambers, and I also work for Pravo-Justice in Ukraine. I know we’re – thank you very much the – for – to the panel and the organisers for a very helpful and inspiring discussion. I’d like to raise a – something that perhaps hasn’t been discussed very much, partly because there’s not much that can be said definitely about it, and that’s the – a peace that will eventually come between Ukraine and Russia. We don’t know when it will happen or how it will happen. We all hope it will and we all probably in this room can agree on what a just peace would look like. But my question is rather general and rather speculative, but I’d be very interested to know what the panel feel about the positive impact that transitional justice will have on that eventual peace. I realise that’s a big subject, but if some of them could just say a few words. Thank you.
Jaroslava Barbieri
Thank you. Another question from the middle, gentleman at the front here.
Stephen Diehl
[Pause] Stephen Diehl, a life-long Soviet, Russian and Ukraine follower and watcher. I thought 240,000 cases, well, I wonder when that figure was taken, because it seemed to me rather low, actually, for the number of criminal acts that Russia has committed in Ukraine. But I wondered whether the panel would like to comment on whether the situation now is made more complicated and more difficult by the fact that it could be argued that now two members of the Secur – UN Security Council have committed aggression. And added to what’s going on in the Middle East generally, which we know about, it seems to me, will that distract attention, rather like the news attention has been distracted from Ukraine since the 28th of February?
Jaroslava Barbieri
Yeah, thank you. Is there a third question, perhaps, from this side of the room? Lady at the back there, please.
Anna [Sayko]
[Pause] Thank you. My name is Anna, organisation Legal Action Worldwide. I have a question concerning victim participation. As Kateryna mentioned, in the report, it is really difficult to explain to people, to victims, what is transitional justice. So, mostly in any questionnaire, it is mentioned in different forms, rather like need of support or need of reparation. But – so, in the opinion of all speakers, I guess, how we can start to involve victims in this process, how can we communicate this process, like, of transitional justice in general? Because we saw an example of a criminal justice process in Ukraine, how it is important to communicate with victims to – for them to participate. And in this occasion, the participation of victims will be even on the greater stage.
Jaroslava Barbieri
Thank you very much. Let’s go in the opposite order of the speakers. Perhaps let’s start with you, if you’d like to pick on any questions in particular. I wonder perhaps the last one, something…
Anna Myriam Roccatello
Right.
Jaroslava Barbieri
…we were discussing in the other room.
Anna Myriam Roccatello
But I mean, provided that now the Government of Ukraine has made a commitment to actual develop a transitional justice policy or action map, and I speak under Kateryna’s direction, by November, so it is – there are here both a policy and the practical issues to ensure. Because if you do not ensure a wide and a representative participation of the different groups of the society, particularly victims that are the immediate beneficiary, then of course, this roadmap or whatever policy will not have that endorsement, legitimacy and stamina to be truly implemented and to have victims and civil society as the engine that dema – continues to demand implementation and participates and contribute to make these policy decisions executed on the ground.
So, from a practical point of view, there are a number of very in – experi – already experimented methodology where the already established civil societies in the urban centres are made responsible for outreach. There are a number of lessons and models that were adopted and obviously, need to be adapted to the geography of Ukraine. That enables a – certainly, a limited, because you cannot in – you know, have all speakers, but to ensure that those that you represent, victims’ perspectives are truly representatives. And there is a lot of work to be done, because clearly, the infrastructure is damaged and Ukraine presents a territory that is not always at – you know, not – like any other country, not everybody’s at the same level of access to information or ability to express opinions or articulation of their understanding.
But if I’m allowed, I would like to answer to John. So lovely to see you. I understand that we are entering into a theoretical question here, but regardless of whether Ukraine and the international community would be allowed, in this particular political climate, to have a right-based approach to a peace negotiations, which remains a big question mark. What I mostly care about is for Ukraine to endorse that whatever settlement they may be – I – they may agree to, internally they want to uphold the democratic, pluralistic and transparency pro – principles that actually trigger the war against them. And transitional justice, in my view, remains absolutely critical for that.
Jaroslava Barbieri
Thank you. Veronika, are there any questions in particular you’d like to react to?
Veronika Plotnikova
Yeah, just to – few words from my side about number of criminal case. So, now we have more than 240,000s of criminal proceedings. So, yes, when we are talking about this unbelievable amount, we are talking about really huge amount of criminal proceedings. So – and you could imagine, we just have an – one of our proceedings, we have more than 5,000s of victims, so now we are talking about millions of victims, even in procedural meaning, so, yeah.
And about transitional justice and peace negotiations and peace deal and other things. As for me, we are talking about transitional justice, and we have to talk about it in a wider perspective. We have to talk about it as a new social contract in Ukraine, not only a part of, you know, negotiations, ‘cause we are a state who lives and will live in a long-term perspective with a – in circumstances of this war. And we already have this bottom-up approach, ‘cause we started to do it, you know, to cut off our links with a Russian imperial legacy in 90s, and our transitional justice is wider that only this perspective. So, it’s about post-Soviet Union process, it’s about post-imperial process and now it’s about post-war process. So, yeah, let’s talk about transitional justice as a new social contract and it will be clear for our society, not, you know, as some mechanism, but as a big picture. Yeah, thanks.
Jaroslava Barbieri
Yeah, thanks so much. Kateryna.
Dr Kateryna Busol
I’ll take the questions in reverse. On the communication and engagement, you’re very right that the word ‘transitional’ raises concerns in Ukraine. It raises questions as to what are we transitioning from where to where, first? And second, sometimes it raises unhelpful comparisons. If we speak about Colombia or Argentina, those were internal matters of either a domestic armed conflict or a dictatorship. How is it applicable to Ukraine? So, the government and the civil society need to have a very clear communication strategy on transitional justice. They might even not use the term and speak about holistic justice to survivors of Russia’s aggression.
On the matter of engagement, there are two crucial points. First, to engage more regional and local NGOs, because the majority of us work in Kyiv and oftentimes, this discussion is deminate – dominated by Kyiv-based human rights NGOs. And second, to engage more NGOs led by survivors. Paradoxically, in Ukraine, survivors of conflict-related sexual violence are very proactive. Their NGOs of both women and men survivors, are very active, but that should be organisations of survivors of enforced disappearances, of deported children, to also make their voice heard.
On Middle East, naturally, it diverses attention and naturally, it raises scepticism regarding our call for justice and our support for the Special Tribunal. The leading human rights NGOs in Ukraine have been vocal on their support for the two-pronged approach, on the support for the Special Tribunal, but also on the wider reform of the International Criminal court to equalise its jurisdiction to prosecute aggressions perpetrated globally. And recently, last year, Germany, Costa Rica and several other states have actually proposed to the Assembly of States Parties of the International Criminal Court, to start the reform of the Quad’s jurisdiction on this crime.
It’s going to be a lengthy process, but again, in our strategic communication, as Ukrainian Lawyers, we’re trying to show that the Special Tribunal is a transitional – is first, an indication of the glaring gap in the justice framework, but also that it’s a transitional building block to reforming the ICC. And the US is not party the International Criminal Court. We’re hoping for the change there and we’re also hoping for the more principled leadership of the countries who are parties to the Rome Statute to agree upon each amendment.
And finally, on the matters of peace, it is a strong belief within Ukraine that without Ukraine’s holistic justice and the body of factual and legal evidence that it will generate regarding Russian crimes, both in the current aggression and lingering in – from the Soviet times, there will be no proper transition in Russia or Belarus. We have seen the indicators of change in Belarus in 2020, but that they haven’t matured enough. And what would indicate the transformation in Russia for me would be a gesture similar we have seen from Willy Brandt when he kneeled in front of the Warsaw Ghetto. When we would have the new Russian leadership to come and kneel in front of the people of Bucha and when we, as Ukrainians, will be able to visit [84:44 – Severomorsk] and other places of mass extermination of Ukrainian dissidents and creative persons who are – who were killed in Russia.
Until then and until the full reparations are given, I think we cannot speak about proper transformation in those countries. Thank you.
Jaroslava Barbieri
Thank you, Kateryna, and Dr Kreẞ, I’d like actually to bring you a question that we had from our online audience of how the ICC and the Special Tribunal can make sure that there’s no duplication of effort. So, better understanding the complementarity between these two institutions. Can you help us unpack that, please?
Professor Klaus Kreẞ
Yes, but I would like to echo, first, one point which I was about to say when you passed the floor further a moment ago, and just to echo one very important point that Kateryna has made a moment ago. The legitimacy question that was implicit in this question, what are the consequences about yet another aggression taking place? The solution cannot be to abandon or to weaken anything that has put into place in support of Ukraine’s case here, but the solution must be to close the jurisdictional gap in the ICC statute.
And Ukraine has behaved exemplary, I wish to emphasise, because even in their so challenging situation, they have invested diplomatic effort in order to support the diplomatic process in order to reform the ICC statute last year. And a very important step has been made, and this is partly thanks to this process with respect to the Special Tribunal. State parties to the International Criminal Court have agreed, there is consensus now that the jurisdiction over the crime of aggression under the ICC statute should be strengthened and a new target date 2029 has been set. This is where a lot of energy should now go, but that’s not primarily Ukraine’s responsibility. This is on those states who have been, and it’s a small minority, a small state – minority of states who have been reluctant so far, Britain, France, Australia, Canada, Japan. They should help us now and it is very much to be hoped that this will happen to make the international architecture fairer.
And with spect – with respect to the fear of double efforts and overlap, this is the very reason why the jurisdiction of the Special Tribunal is limited to the crime of aggression. The Special Tribunal would – will not deal with any other crime in order to make it really complementary to the efforts that are already ongoing. The idea is not to duplicate anything, but to remedy a particular but very, very important gap that is presently existing.
Jaroslava Barbieri
Thank you very much. We can squeeze in one or two very brief questions. Please, gentleman here in the middle. Anyone else in the room?
Sergio
So, my name is Sergio, Sergio [inaudible – 88:10] in Ukraine, and I’ve been covering Ukraine since 2014, Crimea, Donetsk, Kyiv, I’ve been ten times to the country and reported on many cases of aggression against the Ukrainian people. This last time, though, I came across a story, which is not an isolated story, unfortunately, of foreign fighters in Ukraine, one of them was executed after being tortured in a military base in Kyiv. And there are many, many witnesses about it and people are denouncing – these people are leaving Ukraine, moving to European Union countries, asking – claiming asylum because they don’t feel safe to go to Brazil because people are being threatened. Their families are being threatened, I was. The Journalist who worked with me and did a story from Kyiv, from The Kyiv Independent, was, as well. So, I wonder if this kind of justice can control these problems? I’m not comparing the scale of the problems, but it’s a sure problem. So, there are many mothers in Brazil, in Colombia, waiting for answers. So, that’s my question, thank you very much.
Jaroslava Barbieri
Perhaps I’ll leave this question to you and one, very briefly, final question there at the back.
Daniel Flynn
Thank you. Daniel Flynn, I work for Reuters in Kyiv. I wanted to ask about the impact of funding cuts by the US on the search for international justice in Ukraine. At a practical level, is that impacting evidence gathering in Ukraine? Yeah, what impact is that having?
Jaroslava Barbieri
Thank you…
Daniel Flynn
Thanks.
Jaroslava Barbieri
…very much. Perhaps I’ll direct this question to you, Kateryna, ‘cause you’ve worked on this issue, as well. Please.
Anna Myriam Roccatello
Well, I would say that the presence of foreign fighters in situation that then, you know, translate or transform into, or transition into transitional justice, is quite common. So, there is actually ample research and ample – and there is experiences on how to handle and to address correctly this situation. Not very successful, because similarly to international criminal accountability, the in – recruitment and sometime – very often forced recruitment and use of foreign fighters is a transnational crime that therefore, you know, we enter also, technically, into a slightly different stream of legal in – provisions.
Nonetheless, there are examples and I – you know, the bottom line is that in a conflict as clear as this one, having a country being occupied and then militarily aggressed and invaded, you can never – as – you know, the longer the conflict continues, the more the conditions emerge for violations also by the ‘victim’. It’s in – and this is exactly one of the importance of taking an holistic approach to justice. Let’s not even use the term ‘transitional’, that is misleading. A nuanced approach to justice. These phenomena have create so many – so much human suffering and have so many rippled effect on communities that you require solution, policies and action that are – that consider multiple factors.
So, we will not be, probably, in a position to redress fully the forced recruitment, which by the way, in Ukraine happen. It has gone on in the fe – Russian Federation since ever, and many countries, for example, in Africas, are now creating a coalition to raise the issue of forced recruitment by the Russian Federation. The most important is that through your work, through the work of civil society, Ukraine remains transparent in denouncing and providing forums of accountability to these events that we hope remain isolated, comparatively speaking.
Jaroslava Barbieri
Thank you so much. Last few words from you, Kateryna.
Dr Kateryna Busol
A very brief response. Yes, the withdrawal of the US funding has very critically affected the work, both of the documentation activities, the legal analysis, but also crucially, much of the mental health and wider support for the civilians, PoWs and returned children. So, I couldn’t call up on our international partners more to step in while – you have to fill in this niche which currently has – so far, has been left by the US. Thank you.
Jaroslava Barbieri
Thank you, and on this encouraging note, please join me in thanking our fantastic panel [applause]. Thank you [applause].
