We prosecute the crime of aggression so that the damage caused – which is considered legal in wartime under humanitarian law – does not go unpunished, says Milan Lipovský

On 24 February 2022, Russian troops invaded Ukraine. The so-called “special military operation” with the purpose of occupying Kyiv and imposing a pro-Russian government, was supposed to take only a few days, the Kremlin thought. However, thanks to the preparedness and determination of the Ukrainian army, it has still not come to an end to this day. Since the outbreak of the Russian invasion, thousands of violations of international law have been documented, including attacks against civilians, the torture and execution of prisoners, the deportation of Ukrainian children to Russia, and the targeting of energy infrastructure. To mark this sombre anniversary, we have decided to discuss the latest developments in the investigation into war crimes and the crime of aggression committed in Ukraine with Milan Lipovský, from the Department of International Law, who has been studying this area for many years. You can also listen to the interview in a podcast on Spotify. 

Could you describe the focus of your research?

Sure. But before I get to that, I would like to show my respect for all victims and those who are fighting for freedom – not only for Ukraine, but for the freedom of Europe. 
International criminal law is not my sole focus, I also study other areas, but speaking of international criminal law and Ukraine, I think I should mention two main areas that I have been researching in the past two years. Firstly, the establishment of the Special Tribunal for the Crime of Aggression Committed against Ukraine, in relation to which I focused, primarily, on trials in absentia, because the typical argument raised in the general debate is: “You can set up whatever you like, you can have whatever tribunal you want, but if you can’t bring the suspects before the court, it’s just a waste of money.” But this is not entirely true. At the same time, I have also looked into immunities, where a similar argument is made: “You won’t get those people there because there are immunities which legally prevent you from trying them before foreign criminal tribunals.” But it’s not quite that simple. 

Last week, peace talks on Ukraine were held in Geneva. European states were not present, it was effectively a meeting between the United States, Ukraine, and Russia. Unfortunately, these talks did not yield any specific results, as was the case previously. Do you think there is any chance of ending this conflict at the political level? 

Well, it needs to be said that I am not a politician, so naturally, my views are more of a legal nature, or based on what I know from the media. As for the absence of European states, I actually think – even though my colleagues specialising in European law might be more competent to answer the question – that Europe is harming itself by not having a unified foreign policy, it is fragmented. It is perhaps understandable that some states wish to retain their sovereignty in their foreign policy, but individually none is as strong as that of the European Union as a whole. It would have been much easier then – regardless of whether it would be with the United States, Russia, China, or anyone else, and I’m just giving examples here – for us to have a stronger position in negotiating about a matter which, without a doubt, is of direct concern to us, such as an armed conflict on the borders of the European Union. In that case, we would certainly be invited to the table, and if not, we would probably insist on being there. As for the question of whether this can bring any actual results or not, I honestly hope it can. But if I look back at the last four years and all the positive and negative outcomes on both sides, then despite of all of this, nothing has changed. And I will quote my grandfather, who, when asked about something completely different, said: “I try to be an optimist, but realistically, I’m an optimistic pessimist, or perhaps a pessimistic optimist.”

So maybe a pessimistic realist.

Maybe.

It is, in fact, not in Russia’s interest at all to end the conflict, because that could lead to a change of the regime. And it is most certainly not in Vladimir Putin’s interest to be tried before any international criminal court, even though the question remains whether he would ever be surrendered for trial. Another question is whether he could be prosecuted within the scope of the immunities he enjoys as a statesman, some of which he might retain even if he were no longer in office. Could he even be prosecuted if the war ended, which is not very likely in the foreseeable future? 

Before I answer your question, which is a really good one, I’d like to mention one thing that I have always found surprising. 24 February 2022 came as somewhat as a shock to me, just like to pretty much everyone else, even though there were some indications the day before, but we were still in shock. I was later shocked again by the strength of the Ukrainian defence. And I don’t mean to underestimate the Ukrainians, not in the least, but this state which does not have nuclear weapons was able to stand up, in an armed conflict, to a nuclear-armed state which has always built its rhetoric on its military strength! One the one hand, just consider the fact that the Russians had to retreat, and by how much. On the other hand, look at how the Russians used, for example, the Shahed drones, to drop bombs on various targets, including civilian ones. So, what I mean to say is that the development was so utterly shocking for me that I realise that I actually don’t have the faintest idea what will happen in a month or in a year. We don’t know whether Russia can survive this war economically or politically, whether it will have these or those consequences for them, or not. So, I don’t want to speculate. Whenever I read the paper saying that is evident that Russia can no longer carry on, well, Russia is carrying on and surviving – to a certain extent, or that the economy is in this or that condition… Clearly, it is probably not sustainable in the long run, but it might very well be sustainable for much longer than we would have liked.

But going back to what you were getting at. As for the heads of foreign states, they have what we call immunities from jurisdiction. If we focus only on criminal proceedings, we are talking about an immunity from the jurisdiction of a court of a foreign state. It does not apply to domestic courts, which is something international law is not concerned with at all. And as for the heads of states and some other top state officials, there is the so-called troika, which is a term also used in English that refers to the top three representatives of the state: the head of state, the prime minister, the minister of foreign affairs, and persons in similar positions. They enjoy what is known as personal immunities, which are very wide in their scope. When these persons leave their office, they have functional immunities, just like all other state officials. Both of these types of immunity protect them from being tried before a court, including in criminal cases. However, this raises another question, one which was already addressed during the famous Nuremberg Trials, held after the Second World War. A film about the trials was recently released in the cinemas. The question of the circumstances in which it is possible to not apply these immunities was examined in the course of the trial. I don’t want to limit the discussion to Ukraine alone, because it is not just about Ukraine. It could then look as though we’re discussing a single case, which might bring about concerns about the selectivity of international justice. So, speaking of these state officials, the question is in which cases these immunities do not apply. 

Going back to, for example, the senior officials of the Russian Federation, a group now referred to as the Core Group emerged relatively soon after the onset of the full-scale invasion. I was really proud at that time that the Czech Republic had joined in. The group discussed what is known as the jurisdictional gap in the jurisdiction of the International Criminal Court. The International Criminal Court is the first permanent international criminal court that can prosecute crimes under international law. It may exercise its jurisdiction in cases where the crime was either committed on the territory of a State Party or the suspect/perpetrator is a national of a State Party. However, when the Rome Statute of the ICC was being negotiated back in the 1990s, there was a heated debate over exactly whether or not to include the crime of aggression amongst those four crimes (genocide, crimes against humanity, war crimes, and the crime of aggression – editor’s note). In the end, an agreement was reached to include it, but jurisdiction could only be exercised after the States Parties agree on a definition. The crime of aggression was finally defined in 2010 after some very tough negotiations. And although there is much to be criticised, the definition was activated in 2018, meaning that it is now applicable. However, such addition at a later date triggered Article 121 (5), second sentence, which, in fact, changes what I just said.

One requirement is that the crime of aggression must have been committed on the territory of a State Party or the perpetrator must be a national of a State Party. But that’s not all – the conjunction “and” is used, which means that both of the states concerned must be States Parties. Not only do they need to be States Parties to the Rome Statute, but they must be States Parties to the Rome Statute as amended to include the definition of the crime of aggression. I believe there are – and please don’t quote me on this – only 46 of them. Ukraine became a State Party to the Rome Statute last year but Russia, unsurprisingly, is not a State Party. And this is the jurisdictional gap where the International Criminal Court may not exercise its jurisdiction, except where the Security Council would act. So, the Security Council could circumvent this rule. However, Russia is among the members of the Council who have veto power. This has led to a new debate which we thought would no longer be necessary – on the creation of a new ad hoc tribunal which would work until this jurisdictional gap is resolved. This will take an awfully long time, because amendments to the Rome Statute other than amendments to the definitions require ratification by – and you should now brace yourselves – at least seven-eighths of the State Parties. The process will be really slow, if it ever succeeds at all. It is also highly complex, which is why we need this ad hoc tribunal for the crime of aggression committed against Ukraine.

I should add that the International Criminal Court in The Hague does have jurisdiction to try the other crimes such as genocide or war crimes…

Right, and these are, indeed, being investigated. Warrants of arrest have been issued against Mr Vladimir Putin, Ms Maria Alekseyevna Lvova-Belova, and others. So, there will be a separate ad hoc tribunal only for the crime of aggression. But as for the other three crimes, the International Criminal Court can theoretically conduct proceedings, and in some cases it is already doing so. 

As for the crime of aggression, where is the process of the establishment of the Special Tribunal for the Crime Aggression Committed against Ukraine currently at? It has not yet started working, everyone is still just talking about it...

Agreements have already been negotiated and not just one, but several agreements. The principal one provides the Statute of the court and then there are additional technical agreements which will govern the functioning of the Tribunal. But it has not yet been established. The technical aspects of the establishment are still being discussed. The Council of Europe, the regional organisation, has already entered into an agreement with Ukraine. Originally, there was a discussion about whether the UN would become a partner, but that idea was, unfortunately, ultimately dropped. We can come back to that, as there are some important implications. In any case, a ‘hybrid tribunal’ will be established, which means that it will be based on Ukrainian jurisdiction, but with international elements. 

Because such a tribunal cannot be established in Ukraine. The Ukrainian constitution does not allow it, right?

The processes involved are complicated there. If I remember correctly, even the ratification of the Rome Statute was a problem. I’m no expert in Ukrainian law, but they were able to deal with these issues in the end. The reasons why the Tribunal is going to be based in The Hague are different – among other things, it's neutral ground. 

Were there any actual changes for Ukraine when it became a Party to the Rome Statute last year?

Even before it became a Party, it could accept the Court’s jurisdiction under the special provision in Article 12 (3). This is probably not the case for aggression because the process is more complicated there due to that later amendment. The Court could therefore investigate events, I believe, from 2013 onwards. But as far as I know, Ukraine was pressured in the sense that if you want a special tribunal to be established, you must become a Party to the Statute, so that you’re not just the protected party that only benefits from the Court’s jurisdiction, but also, for example, you contribute to the budget and are involved in the technical aspects of the functioning of the Court, so that it is simply your court as well, and you contribute to international justice in this way. So, it was more of a formal, technical change rather than a change in the scope of the jurisdiction. 

Russian war crimes in Ukraine are investigated at several levels. I am now referring to all these crimes collectively, not war crimes specifically. They are being investigated at the international level, by Ukraine, and also in individual states, including the Czech Republic, where the police are also collecting testimonies from Ukrainian refugees. Are these separate processes, or do the individual courts and authorities cooperate and share their findings? 

That’s an excellent question. They certainly do cooperate. In fact, Joint Investigation Teams, known as JITs, have been set up by Eurojust. But let’s first go back to your question: investigations and proceedings are conducted at both the international and national levels. It may therefore lead to multiple authorities investigating the same matter. Different courts have taken different approaches to this issue in the past. For example, the former Yugoslavia Tribunal set a precedent in this respect. The International Criminal Court is built on the principle of complementarity. This means that the states have the first responsibility to investigate and prosecute the crimes. It makes sense since a single court can only do so much. The ICC steps in only if states are unable or unwilling to do so. In an ideal world, there would not actually be any cases heard before the Court because states would be fulfilling their responsibilities on their own. Either no crimes under international law would be committed, or states would investigate and prosecute them on their own. So, proceedings take place at both the international and national levels. And there is significant cooperation between the parties involved. Apart from gathering evidence and conducting investigations, I would also highlight that there is a large number of non-governmental organisations which are very engaged. However, we should also mention one drawback, which  complicates the whole situation. How should evidence be preserved? Because there will, of course, be a huge amount of evidence, and if it is preserved in digital form, how can we ensure authenticity? With the progress of AI, the authenticity of evidence may be called into question by claims of tampering, especially if the evidence is used many years later. So, it’s great that evidence is being collected and it’s great that the investigations are moving as quickly as possible, precisely because it reduces this risk, amongst other things.

There are hundreds of pending trials in Ukraine itself, under the jurisdiction of Ukrainian courts. What would you say about the complementarity of those proceedings and future coordination with the newly established Special Tribunal or the International Criminal Court? 

As for the relationship with the International Criminal Court, domestic proceedings take a lot of the burden off of the Court by performing their role. When someone is convicted or acquitted in their proceedings, they basically lay the foundations that the ICC can build on during its own future proceedings. This can work both ways. Their decisions are not binding on one another, neither is bound by the other court’s case-law, but they are, in fact, complementary. This is the principle of complementarity in practise. It is not a random term, the courts do actually complement each other. 

Let us go back to the possibility of prosecuting top Russian leaders, including Vladimir Putin. I think we ought to explain this in a little more detail. As the situation currently stands, he will not travel anywhere where he could be made to stand trial. So, even if the regime changes and he is surrendered, Russia is still not a State Party to the Rome Statute in the form it is currently drafted. Moreover, that is where the issue of personal immunity comes into play: if I understand correctly, Russian leaders could be stripped of that immunity, but can they also be stripped of immunity ratione materiae? 

Let me explain this in more detail. Both of these issues are complicated and there is no consensus – even colleagues who work together disagree, which is the case in our department, even though we’ve discussed the issue on multiple occasions. As for the personal immunities of senior state officials, the International Court of Justice has already expressed its opinion in a judgment a long time ago, stating that the non-application of the immunities is certainly not an option for domestic courts. However, it also stated that, under certain circumstances, international courts may choose not to apply them. It also made a brief mention – as it was not necessary to go into great detail – of four scenarios in which they would not be applied. And one of them referred to the ICC. But no further commentary or explanation were provided. Some other courts later applied this rule, such as the Special Court for Sierra Leone, which prosecuted former President Charles Taylor – who, at the time the arrest warrant was issued, was still the sitting president. And this principle is clearly also applied by the International Criminal Court. That means that as an international court, established under a source of international law, which applies international law and is supported by a large majority – if not the whole – of the international community, it may choose not to apply personal immunities. So, this is the case of the heads of state or other troika officials who are still in office. But whether they can actually be brought before the Court is another matter. There are voices saying that it was just a rash comment made by the ICJ in a judgment on an arrest warrant, that the Court did not fully realise what the implications might be, and that it is controversial, just like the related case-law. Even the International Criminal Court has not been consistent in its case-law, for example, in relation to the now former – but at the time the ruling was issued, incumbent – President of Sudan, Omar al-Bashir. Sudan is not a Party to the Rome Statute, so the immunities were not waived, even though the Rome Statute provides for such waiver. So, it works differently for states which are not States Parties. Let’s take the recent example of Benjamin Netanyahu. He is also included in the troika and Israel is not a Party to the Rome Statute. Vladimir Putin is another troika member and Russia is not a State Party. And yet, the ICC still issues these arrest warrants. Expert opinions differ on this and I don’t even know whether they’re fifty-fifty, for and against, as to whether this is the right approach or not. 

There is slightly more agreement in the case of functional immunities. They are not even applied by domestic courts. Some national courts, for instance in Germany, try perpetrators of certain crimes committed, for example, in Syria during the Syrian civil war, who fled to Germany and were identified. Their cases are heard before German courts even though they are not German nationals and the crimes did not take place on German territory, but these people are on German territory, so universal jurisdiction is applied. By the way, the Criminal Code of the Czech Republic also provides for universal jurisdiction over certain crimes. The question of whether functional immunities do not apply to the crime of aggression either is currently being debated in the International Law Commission, which has been working on the immunities of foreign state officials before foreign courts. The Commission has proposed a list of crimes to which functional immunities do not apply. Initially, the crime of aggression was not included. There were some really strong reactions from certain states, arguing that it was wrong. For the time being, it appears that the Commission wants to put the crime of aggression back on the list. No decision has been made yet, but it is expected this year. International law is shaped by what states do and say. And if the states want, they will support the International Law Commission in including the crime of aggression. And I hope they will do so. To sum up, there are some critical issues in both areas, but they are far more critical in the case of the personal immunities of, for example, heads of state who are still in power. As for those who are no longer in office, there should be further debate, but it is not completely clear-cut either. However, as a hybrid court, the Special Tribunal for the Crime of Aggression against Ukraine itself may not remove personal immunities, but it does have the option of not applying functional immunities. The parties that established the Court, i.e., the Council of Europe and Ukraine (and others may join) – are, in fact supporting, this very argument through this: yes, functional immunities may be removed, or it is possible not to apply them even before domestic courts.

Since you mentioned Sudanese President al-Bashir, he could have been detained while travelling abroad, but he wasn’t, precisely because Sudan is not a Party to the Rome Statute. So even if Putin were to travel somewhere, it is unlikely anyone would arrest him anyway, because Russia is not a Party to the Rome Statute and has nuclear weapons. It just occurred to me, while you were talking, why does everything revolve around the crime of aggression? Why don’t we prosecute the three other crimes which can be prosecuted before the ICC in The Hague instead? Why is it so important to establish the Special Tribunal? Is it because those other crimes may be prosecuted before the International Criminal Court in The Hague in the absence of the perpetrators only to a certain extent? 

These are two separate issues, and they are both very important. First, as you mentioned, Omar al-Bashir was never arrested while travelling around Africa, and not just Africa. That’s true. He once came close to being arrested, but it did not happen. In each case, the ICC then initiated proceedings for a breach of obligations. The states argued that they had no obligation to arrest him precisely because Sudan is not a State Party. This remains in dispute to this day. But clearly the ICC stands by its position and will not budge, meaning that it can issue warrants of arrest even against heads of state and other troika members (including from countries which are not States Parties) who are in power and can choose not to apply personal immunities. After all, it has issued warrants against Putin and Netanyahu. There is no reasoning available, we only have the report saying that the judges issued the warrant of arrest. In reality, there is probably no other explanation than that the International Criminal Court maintains the position that they are the international criminal court referred to by the ICJ, so they may choose not to apply personal immunities. 

There is an additional political layer: whether the states had enough political courage and strength, or whether they agreed – legally, of course – with what we have been discussing, regarding whether to arrest and surrender the person concerned, or not. Some did disagree and said no, the International Criminal Court was wrong. But others may have been simply afraid. 

So, this is one aspect. The other is why focus on the crime of aggression when we can prosecute someone for other crimes anyway? Well, first of all, the outbreak of an armed conflict inherently almost always leads to those other crimes. War crimes almost always occur once an armed conflict has begun because, for some reason, people lose their inhibitions and go crazy. And secondly, and this is very important, war crimes constitute a violation of humanitarian law, which, however, does not consider the killing of combatants to be unlawful. This is the essence of an international armed conflict: that combatants may kill one another. It does not change anything about whether the reasons for starting the war were legitimate or not, but it does say that it is not against the law in a war. If we didn’t prosecute the crime of aggression, then no one would be held accountable for all of this “damage” – which in itself is not against humanitarian law. And I don’t even want to estimate the extent of this massive, legal damage right now, which is exactly what is punished by the crime of aggression. That is precisely why it was referred to by the prosecutors in the Nuremberg trials as the “supreme international crime”. It addresses this one element which the other crimes do not. And this something – international peace and security – is absolutely fundamental.

So why do so many states, especially the large ones, resist defining the crime of aggression? Or why have the United States and other superpowers not become Parties to the Rome Statute? 

During the negotiations, some of these states feared that it might be used against them, and  indeed, it could be. They were simply afraid that defining the crime of aggression could be problematic because certain uses of force, which are illegal under the current system or belong in a sort of grey area, could be prosecuted. I’m now alluding to, for example, humanitarian intervention. We have a good example in Kosovo in 1999. The current system prohibits the use of force and allows it only in exceptional cases, when it is authorised by the Security Council (which is, however, often in a deadlock), or in cases of self-defence. But there are many other situations which fall into this grey area, or they do not even fall in a grey area and the use of force is clearly illegal. Yet, those states feel they should have that freedom, regardless of whether we agree with them or not.

So, take, for example, Kosovo, where these factors had to be considered in an absolutely horrific situation. There is ethnic cleansing, but no authorisation from the Security Council and no self-defence because the conflict does not go beyond state borders, and therefore you may not legally use force. This is exactly why the final definition includes this tiny clause which says that that for an act to constitute a crime of aggression for the purposes of the Rome Statute, the state element of that act of aggression (the definition consists of an individual and a state element) must also constitute a manifest violation of the UN Charter. So, this means that not all acts of aggression are included, only manifest ones.

This raises the question – as there is no precedent – of what to do in those situations where states do not want to be limited, when they feel they must act and that it is legitimate to do so. We could now go back to the debate again on whether that would or would not be legitimate in specific situations. And this is precisely why a manifest violation is required, so that only those flagrant violations of the system might potentially constitute a crime of aggression, and other less obvious cases are not covered by the definition. Some states are nevertheless concerned that the wording is unclear and that it could be applied to certain grey areas. Still, the rationale behind was clear: the purpose was to cover such situations as Russia’s actions against Ukraine. This was clearly not self-defence or authorised by the Security Council – it was a manifest act of aggression, which was, after all, confirmed by the UN General Assembly by, I believe, a two-thirds majority. But it’s still a politically sensitive issue. 

Let’s go back to the Special Tribunal for the Crime of Aggression against Ukraine, which is still being discussed. In your last podcast, you and Nikola Klímová mentioned the creation of special investigative mechanisms, using the example of Myanmar and the Rohingya genocide, which basically collect evidence, and once the state officials responsible are apprehended and brought to trial, the court proceedings may commence. In the case of Ukraine, the Special Tribunal for the Crime of Aggression would be that investigative body, and if the Russian leaders were arrested and surrendered to the court, that’s when the trial itself could start, is that right? 

I think this brings us back to what I've mentioned and written about before, namely trial in absentia. And that actually might have been, even though this is speculation on my part, a certain concession in the debate on the Special Tribunal, whether it should be established, whether it should be an international court which could, theoretically, remove those personal immunities or not apply them, or a hybrid one, which would not have the option of not applying the immunities. Some states argued that it should be an international court, so that those who stay in power can also be held accountable, but that didn’t happen. Those who wanted a hybrid tribunal prevailed. And the fact that the trials may be held in absentia might have been some sort of a concession on their part. So, you’re right, once it starts working, it may use the mechanisms for gathering evidence. The question is, of course, whether it will actually make use of the evidence or not. The court will assess its credibility. But ultimately, the crimes will be investigated and prosecuted by the Tribunal. And if we do not manage to bring someone before the court, proceedings in absentia are also an option.

Does it apply to the entire proceedings?

It may. Unlike in the case of the ICC, I believe it can be applied even to the trial itself. Of course, if the given person is eventually brought to justice, he or she has the right to a retrial. The lawfulness of such procedure has been confirmed by the European Court of Human Rights as well as by, for example, the Human Rights Committee on multiple occasions. And this rule is enshrined in the Statute. 

Where is the discussion on the Special Tribunal for the Crime of Aggression Committed against Ukraine at now? Could it realistically start working this year?

To be honest, I have no idea, because the political situation keeps changing constantly. And I’m not a member of any delegation, so I have to admit that I really don’t know. I really don’t even know whether the possibility of not establishing the court after all might be on the table. I hope not, but in the current political climate – and I hesitate to say it out loud – I don’t think we can rule out anything. But I hope it will be established. 

So, what changed?

Political support.

Are there fewer states willing to finance the support for Ukraine, perhaps including the Czech Republic with its new government?

I don’t know if this is the case. Actually, I don’t think the Czech Republic has changed its position on this, but then again, I cannot speak on behalf of the Ministry of Foreign Affairs. But what I perhaps do take issue with is that the Core Group – even though I wasn’t at the meetings, so I don’t know what exactly went on and whether it was their fault or not – clearly failed in securing the support from African or Asian states. The fact that they have not officially supported the establishment of the Tribunal is, in my view, a major failure. 

Where does the funding of the ICC in the Hague actually come from and how would the Special Tribunal for Ukraine be financed?

The States Parties. There can also be some voluntary contributions, but the ICC is funded by the States Parties, and so would be the Special Tribunal.

Let’s talk about the UN Security Council. You addressed this topic in your last podcast with Nikola Klímová, saying that a feasible solution for the prosecution of crimes of aggression would be amending certain articles of the Rome Statute. Another important step could be changing or expanding the powers of the UN Security Council, including, for example, expanding the scope of the right of veto. Has there been any development in the debate on the UN Security Council since then?

Certainly in the debate on the doctrine, but I doubt there have been any actual developments. I don’t follow this area closely, but I don’t think so, because we still have that one fundamental problem, namely, that any amendment to the UN Charter must be ratified by all permanent members of the Security Council. This might have been in part – though of course I can’t know that for certain – Donald Trump’s motivation to establish the Board of Peace. Because he probably feels that there can be no change without all permanent members agreeing on a compromise. And we all know how easy it is to reach one. Not that the UN Charter has never been amended, it has, and even some non-permanent members have even been added. But the number of permanent members and the veto power have not. 

If, hypothetically speaking, the war ended, what model of post-war justice is most likely in your opinion?

That would be pure speculation. I certainly do have my ideal, fanciful scenario, but realistically, I can hardly know what will happen in six months’ time, whether it’d be in Russia or some other country, or even a different conflict. So, I really can’t say. Also, there are some major differences compared to the past in that some of the parties involved possess weapons never seen before in an armed conflict. And there is the terrifying possibility of what might happen to them if the conflict were to end in a way that would eventually lead to, let’s say, the collapse of the state. And I don’t even want to imagine non-state parties with ill intentions getting hold of these weapons. So, I do have my own, fanciful idea of what it might look like, but it’s purely my imagination and I don’t want to become too attached to it. 

But feel free to voice it, maybe that will somehow make it come true😊.

Imagine Russia becoming a democratic country, which would prosecute its own perpetrators, of course, in accordance with the principle of complementarity. Or it would continue to cooperate with the international community. After all, Russia did have a chance to do so in the 1990s. It was given opportunities and offers to cooperate with the West.
By the way, I would like to say that I have the utmost respect for the Russians who stood up in resistance. And not just Russians, but the Belarussians, and others, too. For those who stayed in Russia, but also for those who left. It came with a huge cost for some of them. These people have a level of moral integrity for which I have huge respect. 

Do you think it is feasible that the international community could reach some sort of a broader consensus on reparations or compensation? Is it realistic at all to demand Russia to pay anything, given its current economic situation? 

Well, we can certainly demand it. Reparation mechanisms are being set up, registers are being created: a register for recording the damage done and a direct mechanism for compensation have already been established. The question is, obviously, the implementation. Would it be legal to use those frozen Russian assets? International economic law isn’t really my area of expertise, but it’s definitely not that simple. And the damage has been caused on such a massive scale that there will probably be no choice but to come up with something like the Marshall Plan, which will help Ukraine get back on its feet and possibly integrate it into the European Union. After all, it is a part of Europe. Ukrainians live in Europe. They are our neighbours. So, I do hope that satisfactory reparations will be paid and that, at the same time, the West will take a stand on the matter, helping Ukraine to the extent that we can all live together in peace. It might sound slightly far-fetched, but how else to put it?

On the one hand, I definitely think that the West should play a key role because if Russia loses, they should certainly pay a price, no doubt about that. But on the other hand, if Russia is put in a tight spot economically – and this is a huge simplification – we don’t want to repeat the situation from after the First World War, when Germany lost and their economy was put in a really tight spot and and we all know how that went – radicalisation and the Second World War…

Obviously, Russia is inclined towards working with other regions now. But then again, if we continued cooperating with them economically, we would effectively be financing the war against Ukraine.

In fact, these economic sanctions are the only effective leverage over Russia right now. I’m not sure if this is your field, but how much effect do they have on Russia?

From what I know from the news, there’s actual damage being done, but I’d rather let an economist answer. But based on what I’ve read, even some Russian officials have already gathered the courage to say that the situation is unsustainable in the long run. 

So it is, in fact, the only tool with some real impact, more effective than those international peace conferences.

Another tool is, of course, armed conflict, but nobody wants to go down that road. But there is still another option, which was also one of the topics I focused on in my research. It was a moment when – after quite some time – I once again felt really proud to be Czech: after the invasion was launched on a full scale, our country along with some others began sending weapons, though of course not quite openly or publicly at the time. I don’t want to go into specifics, but sending weapons to Ukraine, which clearly helped them to get through that first stage before other Western states made up their minds, showed that if they had let themselves be persuaded by states like us, the Baltic States, Poland, and some other countries, which said: “Help them, they can handle it, they know how. Give them F-16s, etc.”, then the results might have been all the more effective. But the West wavered. They may have those F-16s now, but the fighting has changed quite a bit since then.

Let’s hope then that the economic sanctions, in combination with the arming of Ukraine, which hopefully will continue, will eventually lead to an end to the conflict and perhaps even to some form of punishment for the perpetrators of war crimes and crimes of aggression. Thank you very much for your time.

Thank you for having me.

Interview by: Markéta Černá, PF UK Communications Office.

This is an edited version of the podcast interview.

Edited by: Milan Lipovský