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Five Pillars of Accountability for Russian War Crimes in Ukraine

Breakfast Policy Briefing / BREAKFAST POLICY BRIEFING
Andriy Kostin

Date: 05/03/2024

Mr Kostin gave this speech at an EPC Breakfast Policy Briefing on 5 March 2024.

Dear Ms. Paul, Your Excellencies, Members of the European Policy Center, Dear Friends and Colleagues,

Thank you for this opportunity today  to discuss with you how Ukraine is pursuing justice and accountability for Russia’s war of aggression, and to discuss what is needed to obtain that justice and accountability.

Throughout Russia’s War of Aggression against Ukraine, we Ukrainians have known that we are frontline defenders of the rules-based international order, frontline defenders of the structure of international law that was built out of the ashes of WWII, frontline defenders of the free world that was built while we still lived behind an iron curtain.

We fight for what we think of as a Just Peace with Russia — but this peace must account for the atrocities we have witnessed everyday since February 2022.

This pursuit of true justice and accountability will be incomplete — the return of stolen Ukrainian children will be incomplete — the liberation and reconstruction of Ukraine will be incomplete — if these actions are not built from a foundation of Ukrainian victory.

And let me tell you why.

- Ukrainian residential areas, including millions of civilians, have been subjected to massive shelling and indiscriminate attacks far beyond the conflict line. Attacks against critical infrastructure amidst cold winters are part of Russia’s war tactics and strategy of organized terror;
- Occupied cities like Bucha, Sumy, Chernihiv, Izium, and Kherson became playgrounds for atrocities and massacres, leaving behind mass graves and long lists of victims and survivors whose stories we must document;
- Summary executions, torture, and conflict related sexual violence are committed against Ukrainian Prisoners of War and unlawfully detained civilians alike — including women, children, and the elderly — as part of Russia’s policy to intimidate, instill fear, punish, or extract information;
- Russia also strips us of our future by forcibly transferring tens of thousands of Ukrainian children to its territory, changing their identity and nationality, and then putting them up for adoption into Russian families. There is no denying that this is part of Russia’s planned policy to erase Ukrainian identity by robbing us of our next generation. They indoctrinate our children to prepare them to fight against us. This Russification policy has been heavily implemented in the occupied territories since 2014.

Russia is clear in its narrative and its policy: their unjustified war is designed to deny Ukraine its statehood, annex its territories, and erode Ukrainian nationality. The machinery of Russian occupation remains brutal and efficient, a sharper mirror to how Russia executes the war.

We have registered 123,000 incidents of war crimes. This is 123,000 stories that deserve to be recorded and known, unlike the millions of stories of the 20th century that never were. So we are investigating and prosecuting these international crimes committed by Russia in parallel to defending our people and our territory on the battlefield — the battlefield that Russia has turned Ukraine into. It is not simple but it is absolutely necessary.

We have been responsive and proactive, creative and imaginative with new initiatives to shape an intrinsic web of accountability that finally Moscow will not be able to escape. Our vision for justice and accountability in presented in Ukraine’s Peace Formula – point 7 is dedicated to Restoring Justice.

First, the aim is to ensure effective investigation of core international crimes on a national level. Ukraine recognizes that we have a primary obligation to end impunity, while ensuring cooperation and partnership with international and national stakeholders. We have already indicted 357 persons and convicted 81 persons, even as the war continues.

Russia must be defeated on the battlefield and in the courtroom, and right now this means our investigators and prosecutors must often work in areas of active hostilities, or in areas that are heavily mined, to preserve evidence of Russian crimes.

We understand that the task ahead of us will require not only years, but decades of commitment. For that reason, we have diversified our resources and efforts by setting up 9 regional War Crime units, along with specialized units at a central level to address Conflict Related Sexual Violence, War-related Environmental Damage, and the Deportation of Ukrainian Children.

We are also implementing a victim-centered approach for survivors of Russian atrocities through the newly established Victims and Witnesses Coordination Center.

The Second Pillar is Securing Accountability for the Crime of Aggression, the root of all these evils committed in Ukraine and the mother of all crimes. My office has opened an investigation into this crime, but the national justice system is procedurally barred from prosecuting Russia’s leadership in domestic courts, due to their personal immunity.

But international law must not be used to shield the very masterminds of Russia’s criminal regime for the act of aggression.

This gap in accountability needs to be properly addressed by establishing a Special Tribunal for the Crime of Aggression. We are glad to see that an increasing number of states are rightly supporting the establishment of the Special Tribunal. For the past year, the Core Group of forty states have been working on the architecture of the Special Tribunal.

By our understanding, the Special Tribunal must be international in nature to overcome jurisdictional barriers — focusing on the manifest case of the act of aggression that was followed by the annexation of parts of our territory. We hope to see the Special Tribunal offering proactive justice rather than be a passive court-in-waiting.

The International Center for Prosecution of the Crime of Aggression (the ICPA) is a first and crucial step towards accountability for the crime of aggression. The Center is a platform embedded in EUROJUST that aims to support national judicial investigations into the crime of aggression committed by Russia against Ukraine. It became operational in July last year.

It’s truly unique by nature: it is the first judicial hub on an international level since Nuremberg and Tokyo, with a specific mandate to secure crucial evidence related to the crime of aggression and facilitate the process of case-building at an early stage. Currently, the ICPA team is composed of Ukrainian, Lithuanian, Latvian, Estonian, Polish, and Romanian prosecutors. We are pleased that United States has also seconded a Special Prosecutor. In total, there are 16 prosecutors and 4 investigators, along with 7 participants from the International Criminal Court.

The Third Pillar is dedicated to strategic partnership with international justice mechanisms. We call it burden-sharing – an international arm of justice that assists Ukraine’s national machinery in securing accountability for core international crimes.

The International Criminal Court’s decision to initiate investigation and issue arrest warrants for President Putin and his so-called Child Commissioner for their role in stealing Ukrainian children has been momentous. We are grateful to all states for referral of the situation in Ukraine to the ICC, and for on-going support to the Court.

We are in close dialogue with other bodies, such as the UN Independent Inquiry Commission, which documents violations and allegations in an objective and impartial manner.

The Fourth Pillar is dedicated to fostering bilateral and multilateral inter-state partnership — and there are also exceptional efforts being undertaken at a national level by states, individually and jointly, in order to investigate and prosecute international crimes committed in Ukraine. National investigations have been opened by more than 20 states, plus by the Joint Investigation Team (JIT) — including Ukraine, Lithuania, Poland, Estonia, Latvia, Slovakia and Romania — under the auspices of EUROJUST, and with the ICC and the United States as participants. Just recently, we have prolonged the mandate of the JIT for another year.

We are already observing concrete results:
- United States, for the first time in history, pressed charges against four Russia-affiliated military personnel for war crimes relating to Russia’s invasion of Ukraine.
- Last week, Lithuania also announced first suspicion notices against three servicemen of Russia’s proxies for the murder of a Lithuanian national in Mariupol;
- We work with partner states and institutions to amplify these success stories of prosecutions by third states.

The last pillar of accountability aims to ensure the payment of reparations to Ukraine and the Ukrainian people by Russia, in line with international law.

During the past 2 years, we have witnessed unprecedented damage and destruction in Ukraine. The World Bank’s estimates for reconstruction and recovery in Ukraine was tallied at $411 billion for only the damages of the first full year of war. This includes the monetary costs of rebuilding infrastructure and people’s lives and livelihoods. But the World Bank’s estimate does not include costs for the territories remaining under Russia occupation, and it also does not forecast the long-term efforts required to rectify damage resulting from the destruction of the Kakhovka Dam, for example.

We need the international community’s assistance in establishing an International Compensation Mechanism via the United Nations General Assembly to satisfy reparation claims. The launching of a Register of Damage for gathering and preserving damages was an important starting point in 2023.

In parallel, the international community needs to continue the stringent sanctions regime against Russia and Belarus, as well as associated individuals and businesses. Efforts to consolidate the EU’s response and wider reaching changes to the EU architecture of sanctions are welcome. The unprecedented escalation in the deployment of financial and trade sanctions is a positive development. But to undermine Russia’s war effort, further sectorial sanctions are needed.

We are grateful to the EU for actively seeking legal and practical solutions for the use of revenue from frozen Russian assets for Ukraine's rebuilding and reconstruction. We are looking forward to this legislative initiative, and we must ensure that repurposed Russian assets can be used for the benefit of Ukraine.

As you can see, it is a complex and multi-layered web of accountability for Russia’s crime of aggression. It relies upon the resilience of Ukraine and the Ukrainian people, and our close cooperation and partnership with allies. We have been making significant progress together, and we must stay united.

I am grateful to everyone here today, to our European partners who are so dedicated to helping us ensure that Russia will, this time, face accountability for its crimes. But these stories will only be told, this accountability will only come, after Russia has been defeated in Ukraine. Ukraine needs partnership not only to document and prosecute Russian war crimes, but to end these war crimes — end the terrible tallying of crimes against our people — and to ensure that no future generations wait with trepidation for the next invasion.

The war must be won. Russia’s history must finally be confronted if the rules based order is to be revitalized and strengthened. If we all collectively fail in this task, the consequences will be swift and reach far beyond the borders of Ukraine.

Thank you for your attention.

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