"It will not take long from the time the special military tribunal is set up to the time the act of aggression is established”
On 11 April, the President’s Office said: "Our goal is to bring the russian occupiers to justice for crimes in Ukraine. We are currently developing an effective international mechanism to compensate for the damage caused to our country. This is a serious diplomatic and legal process.” Could you please tell us what the exact mechanism is meant here and how it all works?
Indeed, the Office of the President (the Office), together with the Ministry of Justice and the Ministry of Foreign Affairs, is working to find the most effective mechanisms to bring the aggressor country to justice in order to resolve the issue of compensation for damages. Regular meetings are held with central executive bodies and experts under the supervision of the Office. We are well on our way to practical implementation of two legal mechanisms.
The first is an international military criminal tribunal that could assess evidence of aggression and convict the top military and political leadership of the aggressor country.
The second is a special tribunal for compensation.
As for the first tribunal, we are involving allies that could, at the level of a declaration on the establishment of such an international criminal tribunal, set up an independent judiciary to assess the crimes of aggression against Ukraine. It would be best if this judiciary body works in Ukraine. We are now actively discussing the model and regulations of such a tribunal. Therefore, this issue, I hope, will be resolved soon.
As for the second tribunal, it can be called a commission, arbitration. It is a body that could solve the practical issue of compensation for damage to our civilian population, the country inflicted by russia. It could also provide prompt legal counsel on the documents submitted by the affected party, our citizens, and gain access to resources that are in most cases abroad. Here the frozen assets of the aggressor country are meant which could be further used to compensate for the damage inflicted to our people and country.
The process is ongoing day by day, involving the Ministry of Foreign Affairs, the Ministry of Justice, other central executive bodies, and the President’s Office. I’d like to think that we will see a draft declaration on the establishment of both tribunals in the next few weeks. We will head for practical implementation, ratification of this declaration at the level of partner countries and in our country as well.
You said that the tribunal should be set up at the national level. We know the precedents for the setting up such tribunals at the worldwide level: regarding Rwanda, the former Yugoslavia. Is their experience taken into account?
Of course, we have taken into account examples of such tribunals, but we have to consider certain factors without bias.
The first factor: the International Criminal Court.
The International Criminal Court has its own jurisdiction. It extensively investigates war crimes against our country, investigates genocide. Yet, we are talking about the establishment of a special military tribunal that could assess the acts of aggression. That is, it is an international special court established between Ukraine and allied countries, which – without hindering the investigation of the International Criminal Court – could assess exactly the act of aggression against our country while operating in Ukraine with the involvement of specialists from allied countries.
The aggression is so obvious that, I am convinced, it will not take long from the time the special military tribunal is set up to the time the very fact of aggression is established.
Therefore, of course, we have taken into account all the existing models that have emerged on the grounds of United Nations decisions and resolutions, and we believe that Ukraine should – and is justified in doing so – follow the model of establishing its tribunal with allies that could, I repeat, without prejudice to the investigation of the International Criminal Court, give its own assessment of the events taking place, namely the events of aggression.
As far as I understand, the International Criminal Court also will be able to rely on the position of the national tribunal and use its experience, won’t it?
Of course, it will be a precedent, and the decisions of the International Criminal Court and the decisions of this international special tribunal will be precedents for each other, they will be able to refer to these decisions in their investigations.
What is needed at the legislative level for partner countries to take part in this process? Just ratification by national parliaments or something else? Does international law allow working according to this formula? And what partner countries are we talking about?
International law, of course, allows working according to this formula. Our Ministry of Foreign Affairs already has a draft declaration with allied countries, which is subject to ratification in each of these countries. It doesn't take long.
The second stage is the development of the model and regulations of this special military tribunal. Therefore, basically nothing more is needed apart from a joint declaration with those countries with which Ukraine will wish to establish this special tribunal and further ratification of this international agreement in each of these countries.
Ukraine is ready to provide all the conditions necessary for the functioning of such a tribunal on the territory of Ukraine, in Kyiv. Maybe in some other city. We are considering various options. There are also other opinions discussed that it may make sense to think about the location for such a tribunal in the same Bucha or Irpin. This would certainly be very symbolic, but it is not a sure thing that it would be more efficient in terms of maintenance of the process.
The list of countries with which Ukraine will sign the declaration is currently being developed by the Ministry of Foreign Affairs and is being extensively discussed with partner countries, so I think it would be appropriate to send this request to them, they are forward on this issue.
You said that the first task of this court is to recognize russia’s aggression against Ukraine. Please explain in simple words what exactly is the point in recognizing the aggression.
The point in recognizing the aggression is that it gives a practical opportunity to convict specific high-ranking officials of the aggressor country in this crime, in the crime of aggression.
Another important point. The Verkhovna Rada made a political statement calling on other countries to recognize what happened in Bucha and other cities as an act of genocide., From the experience of international practice though, it is very difficult to establish genocide. It usually takes more than a decade. Is this the case in this situation, and if so, should the word ‘genocide’ be emphasized?
I don't think it can take 10 years to establish genocide, in the case of the ongoing war in Ukraine. The events, the horrors that Russia is committing against our country, against our people, are so obvious, and the number of documented facts by our investigative bodies and international partners, including the experts from Europe and other world countries, is so huge that I do not think – given the amount of data obtained – that it will take 10 years to consider these crimes as crimes of genocide.
This question belongs to the practice of the International Criminal Court’s investigation. They have a mandate to investigate the crimes of genocide. I am sure that our prosecutor’s office will be able to provide the ICC with access to the necessary evidence to prove this terrible crime. In general, I would be more optimistic about the timing of the examination and legal assessment of the issue at the international level.
Is it possible to legally prove the personal guilt of Vladimir Putin?
We return to the issue of condemning aggression. It is through the mechanism of evidence, aggression crimes and legal assessment of these crimes that the president of the russian federation can be brought to justice personally. It is possible. This is the key goal of the creation of the special military tribunal in question. It is this tribunal that will have the mandate to investigate the aggression crime. And the result of the trial may be the conviction of the person you mentioned.
When the UN International Court of Justice called on russia to stop aggression in Ukraine, a spokesman for the russian president, Mr. Peskov, said that the UN International Court of Justice carries no weight with russia and they would not comply with the ruling. The question arises: what if the International Court of Justice will make a decision, and Russia will say that it will not comply with it, what then?
Well, this is not strange behaviour of the russian federation, they have always had the same attitude to international decisions and agreements. But this does not cancel their responsibility or the very fact of liability arising for specific officials of the aggressor country. The decisions of the ICC or special tribunals will find them in any country in the world. If russia does not want to comply with the decision, then the decision will be compiled in other jurisdictions. When it comes to any of those people traveling around the world, there will be many surprises waiting for them. Moreover, we must not forget that such an attitude of the aggressor country to their non-compliance with the decisions of international courts completely deprives them of the right to substantiate their position. Although I can’t understand what one can substantiate there. But nevertheless they will have no right to send an assumed ‘skabeyeva’ with the whole rubbish of papers called ‘legal position’.
That is, if some assumed head of the Rosgvardiya goes abroad, he is immediately ‘accepted’ [meaning arrested]?
Once the international court has made the relevant decision regarding the person to whom it applies, this is absolutely true.
The Book of Executioners – an array of information about specific people who have either committed atrocities or murders in our country or gave criminal orders.
On 3 April, President Volodymyr Zelenskyy announced the creation of a special Book of Executioners. Is it any specific register? What is its legal status, how is it filled in, how is the information verified?
In cooperation with intelligence agencies, pre-trial investigation bodies, data and information on specific servicemen and the military command, which is involved in crimes committed throughout our country, are systematized.
It is about the complete data of a particular person and the plot of the crime in which the person is involved. I would like to point out that in the case of a military command, it is not necessary for it to be in the combat zone on the territory of our state at some specific time; it is enough that it gave criminal orders. Now this information is being systematized – its volume is just so huge. In the following month, a specific electronic matrix of this Book of Executioners will be presented, which will collect a huge array of information about specific people who have either committed atrocities or murders in our country or gave criminal orders.
Shelter Program provides reimbursement of expenses to citizens who have agreed to shelter temporarily displaced persons.
You mentioned that a body is being set up to focus on compensating people who have suffered from the war, lost property and so on. Let’s talk about it in more detail.
For convenience I would divide this block of questions into two parts.
The first part is not about the legal mechanisms for obtaining compensation, and part of it is perhaps crucial. It is, in fact, the vision of our government and the authorities on how to solve the urgent, most painful issue for those people who lost their homes due to hostilities, due to the war.
I think it would be appropriate to start with the latter. Here, too, we can divide it into three blocks: short-term program, medium-term program and conditionally target program, the main one.
If we talk about the short-term program, the government is addressing the allocation of places in social facilities: sanatoriums, schools, tourist homes, where you can immediately accommodate internally displaced people who fell victim to russian aggression and lost dwelling. Such accommodation is provided on a temporary basis – from one to three months.
In addition, the government has launched the Shelter Program, which reimburses citizens who have volunteered to shelter temporarily displaced persons.
And the third is the construction of temporary housing. These are modular structures that have already begun to be installed in Western Ukraine so that, again, in the short term, the issue of housing for internally displaced persons can be temporarily resolved.
The second block is a medium-term program. It provides for the purchase of built apartments from developers, co-financing of construction with a high degree of readiness to complete the houses as quickly as possible, for example, in six months. It is also a program to support the relevant industry to stimulate extensive housing construction.
And the main target is, of course, the reconstruction of housing in the areas where it was destroyed.
These are the three blocks in which the government, the President’s Office, and the President are directly involved. All these blocks are underway, in the stage of practical implementation, development of specific terms, deadlines, plans, financing, etc.
I would like to point out once again that we clearly understand that people who have lost their homes due to hostilities need to live somewhere right now. Therefore, this first block, a short-term one, which resolves the issue of temporary residence of people from one to three months, is already in a state of practical implementation. There are several locations where modular buildings are being built, the process is ongoing.
Maybe I get the wrong man with the following question, still you may have some information: what funding from the state budget is included to fund the first, second and third directions?
Unfortunately, you did get the wrong man with this question because I do not know these figures. It is better to ask the government.
We are talking about a bloc that does not contain a legal component, that is, it is the administration of specific, urgent problems through government decisions and government programs.
Now regarding the procedure for obtaining compensation with the involvement of legal mechanisms. I would like to point out that history has no precedent for the transfer of seized funds to the injured party without the consent of the party that caused the damage. All examples of reparations paid by the aggressor states after the First World War, after the Second World War were carried out with the participation and consent of the state that carried out the armed aggression. We understand that we should not count on any logical, humane attitude to compensation from russia. Accordingly, the question arises: what needs to be done to enable the transfer of frozen assets, including those that enjoy sovereign immunity, as compensation for losses suffered by individuals and companies.
The first thing to do is to make appropriate changes in the national legislation of the countries in which such assets are registered to allow for the confiscation of seized assets.
What amounts can we talk about?
As far as I know, according to the Bloomberg estimates, reparations can be estimated at about $ 350 billion. Where are these assets? Real estate and cash are mainly in the United States, Britain, France, Germany, Japan. Corporate rights are usually registered in offshore jurisdictions. The most popular of them include the British Virgin Islands, Cyprus, the Netherlands, Switzerland
What has been done by Ukraine and international partners in this regard? We have adopted the Law On Basic Principles of Compulsory Seizure of Property Rights of the Russian Federation and Residents in Ukraine.
We are currently working to improve this law in terms of the fastest possible practical implementation and achievement of the goal. However, let's be realistic – the amount of assets in Ukraine is negligible compared to the losses inflicted to Ukrainian citizens, private business, cities and villages, civil infrastructure, the state and state-owned companies.
What has been done by our international partners or is it being done right now?
In the United States, we know of at least four relevant bills. There is a bill by Senators Bennett and Portman, which provides for the use of seized russian assets for relief of Ukrainian citizens who have been forced to become refugees or have lost their property in Ukraine due to russia’s armed aggression.
Specifically, it means confiscation and sale of seized assets. Proceeds from the sale should be directed to the Ukrainian Rehabilitation Fund and will be used to support, restore, and rebuild Ukraine and support refugees.
The second bill by Senators Sheldon and Malinowski, which will seize the assets of certain russian persons who have come under US sanctions and transfer these assets to ensure the interests of Ukrainian citizens and ensure post-war reconstruction, humanitarian aid, military aid, weapons, and more.
I am aware of Senator Cassidy's bill, which will help to seize the assets of the russian federation and transfer the funds withdrawn from their sale to the Government of Ukraine.
Senator Dingel recently passed a bill that would amend the U.S. Code to provide access to U.S. courts to those who have suffered loss due to the armed aggression in Europe, so that they can receive compensation for the loss. This is, actually, a precedent. The history of our friendly partnership with the United States has never witnessed such precedents.
But these bills have yet to be passed, and we remember that the United States has a bicameral parliament.
There’s a bicameral parliament, right. But we know for sure that at least the bill I mentioned last, which sets a precedent and opens the possibility for Ukrainian citizens to file lawsuits to US courts, enjoys bipartisan support.
(Already after we recorded this interview, the US House of Representatives passed Bill HR 6930, which called on the US President to sell the frozen assets of Russian sanctioned legal entities and individuals to provide additional military and humanitarian assistance to Ukraine. – Sonya Koshkina)
Great Britain. To date, the British Parliament has not registered any bills that would address the issue of confiscation of seized russian assets. However, we know for sure that talks are being held between parliamentarians, and we are doing our best to get our point on the importance and necessity of such legislative initiatives across.
At the same time, the British government has developed the so-called Second Economic Crime Bill, which provides for the possibility of using seized russian assets as sources to compensate for losses inflicted by russian aggression. And this legislative initiative has already been submitted to the British Parliament for a vote and approval. Also in the UK, a new unit has been created within the National Crime Agency, it has a very interesting name: Russian kleptocracy hunt.
Is that what it’s called officially?
It's called the Combating Kleptocracy Cell.
Regarding Germany. At present, German law only provides for the possibility of confiscation and sale of assets in criminal proceedings. Germany has registered criminal proceedings, and as part of the proceedings under investigation, they may confiscate the assets of the russian federation. And then they will have to decide at the governmental level on allocation of funds received from the sale of these assets in favour of the Government of Ukraine.
Canada. Senator Omidvar has submitted a bill to the Senate of Canada to regulate the procedure for confiscating foreign assets obtained by criminal means and transferring the seized funds to those organizations that will help victims restore their rights.
In other words, each of our partner countries is quite active at its legislative and governmental level. We monitor all these legislative initiatives and get our point on their importance across to them.
Therefore, we hope that we will receive from our international partners fast, legally regulated mechanisms for obtaining compensation, obtaining funds from the sale of russian assets as compensation for the losses suffered by Ukraine in favour of our state.
You said that if the relevant bills are passed in the United States, the funds of russian oligarchs could be frozen, confiscated and transferred to Ukraine. How will this money reach the Ukrainian who lost their property? How will the government dispose of them? How will it distribute them? And will all the money really go to the government of Ukraine, and not, say, humanitarian programs of the UN, UNICEF, the Red Cross, etc. the benefit of which for us is, I beg your pardon, zero.
The government is already finalizing the establishment of a specialized government agency that will actually administer these resources. I can say one thing: there will be no story of uncontrolled compensation. Assistance will definitely come to every person, to every citizen of Ukraine who has suffered losses, damage as a result of armed aggression, as a result of war. Therefore, the only thing I would ask from the citizens of Ukraine who have lost their homes, who will need compensation, is to restore their certificates of title as soon as possible and try, as far as possible, to personally collect evidence of the damage caused by the destruction.
Regarding the compensation mechanisms: from destroyed housing to the loss of a breadwinner
Imagine that a person loses their home. Clearly, this needs to be proven somehow. The corresponding function is in Diya App.
That’s right, you can register information about damaged and destroyed property in the Diya application to obtain compensation for war damage. I know for sure that after registering such a notice, the person who provided the information will be notified of the start of the evaluation and compensation procedure.
But if a person is abroad and the news comes to them that a bomb was dropped on their house, and a person is a thousand kilometres away, it is impossible to go and see the site and add a photo to Diya. What should be the certification mechanism in this case?
Resolution no.326 of the Cabinet of Ministers of Ukraine of March 20 approved the procedure for determining the damage and loss inflicted to Ukraine as a result of the armed aggression of the russian federation. This decree establishes a procedure for determining the damage and loss inflicted to the state, and each ministry and agency was instructed to develop direct methods and documents that will determine the procedure and amount of payments in cash to compensate for such losses.
I would like to emphasize once again that we should not waste time and use all opportunities to obtain appropriate reimbursement, different areas have been identified in which the damage is determined for further compensation. First of all, we are talking about reimbursement for human losses and social benefits related to the death and injury of civilians resulting from the armed aggression of the russian federation. In particular, these are social benefits related to the death of a breadwinner, disability, illness, loss of residence, etc. In the future, the Ministry of Social Policy will develop a detailed procedure for such reimbursement and implementation of such payments.
We also expect to determine the damage and losses incurred in the event of loss of housing and housing and communal facilities, unfinished residential real estate, cottages, garden buildings, the actual cost of their restoration.
Of course, the areas in which losses are calculated include damage to infrastructure, transport, telecommunications network, destroyed or damaged roads or railways, transport interchanges, telecommunications networks, and other transport infrastructure. All this will also be calculated, reimbursed, and rebuilt.
Separately, the state plans to determine the amount of costs and compensation for losses of the land fund related to the damage inflicted to the owners of agricultural land, the cost of demining and restoration of reclamation areas.
See what I'm getting at? Each of the relevant ministries, the Ministry of Social Policy in particular, has been instructed to develop a clear step-by-step mechanism for the possibility of applying for compensation. In addition to the program in Diya application, the example you referred to when a person is a thousand kilometers away and has verified information about the damage to his home, is so convincing that I will contact the Ministry of Social Policy and specifically ask to provide them a clear vision of the mechanism of how a person will be able to obtain a specific result, compensation, if it is impossible to directly obtain and provide evidence of damage inflicted by the war.
The only thing I can say now is that the President is already insisting on clear deadlines for the government and ministries to develop and disclose to society in a reasonable time the mechanisms by which our citizens will be able to receive these compensations.
Did I get it right that people who have been injured, who have become ill, and who have lost a breadwinner or family member shall also be subject to receiving compensation?
This task was set by the Prime Minister and brought to the attention of the ministries. Yes, it is absolutely true.
About the Group For Life, For Peace: “It looks like agony – the creation of a group similar to the faction, whose activities have been terminated by the decision of the National Security and Defence Council”.
Let's proceed to the domestic component. OPZZh as a party was banned, but deputies of the former faction of the same name in the Verkhovna Rada found a loophole and created a new group with the cynical name For Peace, For Life. Yuriy Boyko became the leader. We know that there must be court proceedings to complete the decision of the National Security and Defence Council to ban pro-Russian parties in Ukraine. This decision has existed for several weeks, and as we can see, it has not been implemented too much yet. As a person in charge of the judiciary in the President’s Office, tell us what is being done or not being done in this direction?
In fact, much has been done. I can definitely tell you that the Ministry of Justice, as the central body of executive power, which is obliged to go to court (by law, it is the Ministry of Justice that has to appeal to the court to ban the activities of political parties), the lawsuit is prepared, it is being prepared to be submitted. But there is a purely technical issue, the essence of which is as follows: a bill was registered in parliament by a large group of MPs, and it contains a rule that can be considered a technical one, but its essence is that the issue of banning political parties in martial law should be considered by another court. Because, according to the logic of the judicial process and territorial jurisdiction, the issue of banning political parties should be considered by the District Administrative Court of Kyiv.
Which is currently not working.
Well, let's say it doesn't work to the full extent. There is no access to the court register, there are some warnings from both the citizens and the authorities about the activities of this court. Plus, I want to remind you that the bill on its liquidation was introduced in the parliament a year ago. And with the introduction of another bill that would change the territorial jurisdiction for the duration of martial law, the Ministry of Justice will get a possibility to consider banning political parties in another court or elsewhere. The Ministry is awaiting the bill to be adopted.
It may be adopted next week. But for sure it will be adopted soon because it has passed all the committee hearings, all the amendments have been discussed. I know for sure, there were no complaints about that technical amendment, but to prevent the Ministry of Justice from appealing to the Kyiv District Administrative Court, the parliament may pass a law entrusting or changing the territorial jurisdiction to consider this dispute in another court. We will just tread on our own feet. To avoid this, we will wait for the parliament to pass this law, and the Ministry of Justice will file a lawsuit the next day. The lawsuit is ready, as unbiased as possible, voluminous and supported by a bulk of evidence to confirm the fairness and legality of the decision of the National Security and Defence Council, which was enacted by presidential decree.
Oleksandr Kornienko announces the decision to suspend the activities of the OPZZh faction, deputies headed by Yuriy Boyko are creating a new group. And what will you do to them?
These are nothing more than political simulations. The logic is very simple: the deputies of this notorious party, even being in this faction before its actual dissolution, had the opportunity to create parliamentary groups at any time and with anyone. This right is provided by the Law On Regulations. Now it looks like agony: the creation of a group similar to the faction, whose activities have been terminated by the decision of the National Security and Defence Council. They do have such a right, according to the Law On Regulations. I do not see any sense in giving this phenomenon any special political significance.
There are problems with local councils in the east and south, where the majority are often members of banned parties. It is unclear what to do with this: if they self-dissolve or leave, the local council will become incapable, and we cannot hold elections during martial law.
I do not think there is a legal clinch. By a decision of the National Security and Defence Council, enacted by presidential decree, the activities of the political party were suspended, it was not banned. Let me remind you that a separate point in this decision is the obligation of the Ministry of Justice to apply to the court to ban the political party. So, while there is no court decision to ban a political party, I do not see a special case here at the level of local councils.
The local council itself at the level of the local session can determine the procedure for its work, the faction can conditionally cease to exist, the deputies will remain deputies. Therefore, I do not particularly dramatize this issue, I do not see any signs that this decision will somehow be able to affect the processes in local councils. If some regional or city councils decide to dissolve the party faction in their council at their sessions, this will be the decision.
The last important question concerns the russians' intentions to hold so-called referendums in the territories they have temporarily seized. In particular, such a referendum was announced in the Kherson region. In fact, this is a repetition of the Crimean scenario of 2014, a referendum under the barrels of machine guns. It is obvious that it is extremely difficult to do or prove anything in the occupied territories. Besides, has our legal system made any substantive conclusions from the experience of Crimea 2014, so that if we do not prevent such a referendum by force, which is now impossible, we shall somehow try to record this ‘referendum’ as fake?
You have already actually answered the question. Any manifestations, signs, facts, attempts to hold this illegal mayhem are documented. Every person who is involved, participates or in any other way will promote this mayhem is documented, and therefore legal conclusions are not just made, they are all compiled into separate criminal proceedings, documented, and evidence both at the international level and at the domestic level. Therefore, no one will escape responsibility for these things. The entire state legal machine, law enforcement agencies and prosecutors are actively involved in the process.