Howard Morrison, British lawyer, Judge of the ICC from 2011 to 2021
Special tribunal can be set up to try people in absentia for Russia's crime of aggression
25.01.2023 14:00

Almost a year has passed since Russia launched a full-scale invasion of Ukraine. During this period, Ukrainian law enforcers have recorded more than 50,000 war crimes committed by Russians.

The recent Kh-22 missile strike on the apartment building in Dnipro, which claimed the lives of 46 civilians, is just one of the many examples of the cynical tactics employed by the Russians in this war. We have already seen no less atrocious acts in Irpin, Bucha, Izium, and Mariupol...

Throughout this time, Ukrainian and international investigators have been thoroughly documenting every piece of evidence to be used in future trials. It is expected that the majority of Russian war criminals will be convicted by Ukrainian courts. The highest-profile cases against the Russian military leadership will be heard by the International Criminal Court. There’s also an active discussion around the creation of a Special Tribunal to prosecute the crime of aggression by Vladimir Putin and his allies.

Ukrinform sat down with an expert in international war crimes, British lawyer, former judge with the International Criminal Court (2011-2021), Sir Howard Morrison, to discuss the prospects for future litigation. He has served as a judge with the International Criminal Tribunal for the former Yugoslavia and Rwanda, defending the former military and political elite. Those were the first tribunals set up after the well-known Nuremberg trials of the Nazis.

In March of last year, given Morrison's enormous experience, British Attorney General Suella Braverman appointed him as an adviser to the Prosecutor General of Ukraine on the investigation and trial of Russian war crimes. He has also been supervising the training of the Ukrainian judges in the United Kingdom. This is how we got to have this conversation.


-  Recently it became known that the United Kingdom organized a training for Ukrainian judges, preparing them to try Russian war criminals in Ukraine. Could you tell us what is included in this training program?  What will Ukrainian judges learn?

- So basically, the training will cover international criminal humanitarian law and international law on fair trial rights. This ensures that the same standards will be applied in all Ukrainian courts conducting such trials. Therefore, there will be a common approach. This ensures that more trials will be conducted, and that all technical aspects of the individual crimes falling into the category of war crimes will be dealt with. And war crimes cover a wide range of crimes including murder, looting, rape, torture, and some other crimes.

- Currently, some Russian war criminals are already being convicted in Ukraine. What are some new nuances about conducting war crime trials that Ukrainian judges, who are already involved in such court proceedings, will learn?

- Judges understand what kind of trials they are engaged in, and they true cases in the courts with the Ukrainian criminal law.

And that’s fine. I’m sure that the judges in Ukraine work according to high standards. But if you’re going to try international crimes, you must comply with international law, international treaties, such as the International Covenant on Civil and Political Rights, which ensures due process and

fair trial rights. And it’s better to apply the same standards in every court room. So the Ukrainian judges are being trained to get consistency across the board.

- We heard reports that the first group of 90 Ukrainian judges is currently undergoing this training in the United Kingdom. How many Ukrainian judges will be trained in total?

-  Well, at the moment the budget is allocated for training 90 judges. This number was chosen after consultation with the Ukrainian authorities. Most of those judges will be based in Eastern Ukraine. Therefore, the court rooms are closer to where the crimes were committed. Some of the judges are being trained to be trainers. After they return, they will be able to train other judges using the skills acquired during the training program. So ultimately, more than 90 judges will be trained.

- In my opinion, some judges may be too emotional, given all these terrible crimes. How do you know who is ready for the job?

- We are now talking about professional judges, who have tried difficult emotionally charged cases before. I’ve been trying war crimes for a long time. I’ve heard some terrible evidence and genocide cases. Thus, my advice is: you’ve just got to stick to the rules and be as unemotional, practical, and fair as you can be. And you also have to regard the people who are in front of you not as war criminals, but as suspected war criminals. Unless you’re doing that, you’ve already convicted them before the trial starts.


- Iryna Venediktova, previously a Prosecutor Feneral of Ukraine, said she had discussed with ICC Prosecutor Karim Khan distribution of cases between Ukrainian judges and the ICC. It is assumed that the vast majority of war crime trials are expected to be carried out by Ukrainian judges. The highest-profile cases related to the Russian military leadership will be heard in the ICC, which has been conducting its independent investigation on Ukraine since March 2.

Taking into account your experience at the ICC, in your opinion, how Russian war crime trials will be carried out by the ICC? Could you describe a possible scenario?

- Obviously, Russian soldiers have been captured in Ukraine, being suspected of war crimes, and they can be tried in Ukraine in person. But the ICC is not going to be involved with such low-level suspects or persons suspected of committing a couple of murders.

The ICC will only consider very serious crimes that reach the threshold of seriousness that the ICC requires.The ICC is only going to deal with the top personalities, including the top politicians suspected of war crimes and, again, with numerous evidence. But that can only happen once those people have been accused and arrested. And that’s a huge practical problem. The ICC cannot try people in absentia. The Ukrainian court under the Ukrainian Criminal Code can try people in absentia. And it can try people for the crime of aggression because that’s also in the Ukrainian Criminal Code. The ICC at the moment has no power to try the crime of aggression because Russia is not a member of the Assembly of States Parties of the ICC. But it can try Russians for war crimes, crimes against humanity, and potentially the crime of genocide.

- There are some rumors that this winter, the ICC might begin its first proceedings on war crimes of the Russian Federation in Ukraine. Are you aware of this?

- I’m in touch with Karim Khan about the number of issues but I don’t know what the time

scale is. And unless they actually got somebody in custody… You can’t actually have anyone tried until you’ve got them physically in custody in The Hague. And that’s an enduring problem.

- So at the moment, no one is in custody in the Hague?

- Not that I know of. If anyone is, then it’s been kept secret. I’m not saying there’s no one there, I’m just saying that I’m not aware of that.

- How long do such trials typically last?

- International criminal trials are never short. Because they are always dealing with large amounts of evidence in very serious cases. In domestic court, trials could last maybe a few weeks. In an international court they could last many months, sometimes years. So it’s difficult to answer that question. It all depends on the nature of the case, the amount of evidence gathered, as well as the nature of that evidence. If it’s individual witnesses, for instance, all of them have to be heard in court, which can take a very long time.

- Do you think it could take more than a decade?

- It’s impossible to say. I was a trial judge in the case against Radovan Karadžić, and that took us almost 5 years. But it was a huge case with a huge amount of evidence, and we could only sit for 4 days a week because Karadžić was representing himself and we needed some time to catch up with the proceedings before he could be expected to cross-examine witnesses. So each individual case is very special and discrete so its duration depends on the volume of evidence.

- Russian propagandists incite hatred and violence against Ukraine. We’ve seen some cases in history where such crimes came before the international tribunal. First of all, one can recall the case of propagandists who worked for the "Free Radio and Television of the Thousand Hills" in Rwanda. As you know, the chief of that radio station, Ferdinand Nahimana, was sentenced to 30 years' imprisonment by the International Tribunal after the appeal was granted. Some Russian propagandists have already been charged by law enforcement agencies of Ukraine of violating the territorial integrity of Ukraine and genocide. Is there a possibility that these crimes of Russian propagandists will catch the ICC’s attention?

- It’s theoretically possible. If people are targeted in probings as accomplices of crimes, they can be tried, but the same problem arises in terms of actually getting them physically before the court. As you noted yourself, the director of Radio Libre des Mille Collines (Thousand Hills) in Rwanda, Ferdinand Nahimana, was indeed prosecuted. It implies that, if you are engaged in propaganda, which encourages more crimes, you can certainly be charged and potentially convicted.


- In early March, the Foreign Ministry of Ukraine initiated the formation of a Special Tribunal to hold Putin and his political leadership accountable for the crime of aggression against Ukraine. Currently, there are a number of options for the formation of such a Special Tribunal that are being considered: in particular, based on the Ukraine-UN agreement the corresponding resolution may be adopted; or by concluding multilateral treaties between different states. Taking into account your experience as a judge at the UN International Criminal Tribunals for Rwanda and former Yugoslavia, how do you assess the prospects for the formation and functioning of the Special Tribunal on Russia's crime of aggression?

- If you are going to have a special ad hoc tribunal, it’s going to suffer from the same problems as the ICC, in terms of getting people before the court. Setting up a special tribunal is not going to wave a magic wand and instantly produce defendants before the court. We still have the problem of getting the defendants to the court room. So, in my opinion, there is only any real purpose in setting up a special tribunal if it can try people in absentia.

Generally speaking, international courts will not try people in absentia. But you can apply a method that was used by the special tribunal for Lebanon. It tried people in absentia because it utilized Lebanese law that allowed for trial in absentia. Also in Ukraine, you can try people in absentia for the crime of aggression because that already exists in the Ukrainian Criminal Code. So you could set up a special tribunal, a hybrid court, using the Ukrainian law and international law, perhaps involving international prosecutors and judges. In such a way you can try people in absentia for the crime of aggression because it is incorporated in the Criminal code of Ukraine. I know that Ukraine harbors a lot of hopes that there will be a special court. At the moment there’s some movement in this direction as the Dutch have offered the premises, and the EU is keen on it, as well as a number of states. But it’s going to require a great deal of political will and a significant budget. Although, it’s not going to solve the main problem of how you get a senior Russian before the court. Because they are not going to surrender. And this can last until the political structure and climate change, as it was in Serbia with the Milošević case because he was affectively handed to the court by Serbian authorities. I can’t predict whether that might happen with senior Russian officials. It’s not impossible, but you can’t rely upon it.

- Some experts are skeptical about the formation of the Special Tribunal right now, considering that the Nuremberg Tribunals, as well as the International Criminal Tribunals for the former Yugoslavia and Rwanda, were set up after the war ended...  What do you think about it?

- Setting up a court while hostilities are still going on makes it more difficult in all respects.  It makes it less likely that you are going to have senior officials arrested. By large, that only happens with the conclusion of the hostilities. So firstly, we have no idea for how long the conflict will go on; secondly, we don’t know what the political situation will be in Russia when it’s all over.  So I think the people who are advocating for setting up the tribunal after hostilities end have a very valid point. It’s going to be far easier to really set up such a court and have it working effectively once hostilities are over. The reason why I say is that while hostilities are still going on, crimes are still going to be committed and the evidence for prosecution can only expand amid these hostilities. All crimes will only be fully visible after the hostilities have been finished. So there is a good practical reason of not having a court set up before the end of hostilities.

- How can Putin and his allies end up in court?

- Well in practical terms, it’s extremely difficult to accomplish. First of all, we’ve got to have admissible evidence to accuse them and issue arrest warrants. Then you have to execute that arrest warrant and bring these people to court. The only way that you’re going to get senior military and political officials from any country that are being prosecuted for war crimes before any court is by either having them voluntarily agree to come to the court or having them extradited by their government. Also, they could travel to another country where they could be arrested under the international arrest warrant, as it happened for instance with those who led the Rwanda genocide. They went to Cameroon, where they were arrested under international arrest warrants before being transported to Arusha in Tanzania.

- In your opinion, will initiating condemnation of Putin and his political elite prevent implementing a possible peace agreement with Russia?

- Well that’s a diplomatic question. There is always a risk that people think that subjects of criminal proceedings are going to be less cooperative when it comes to negotiating a peace agreement, that’s a major concern. Putin is already, I suspect, under no illusions that the people are already talking about prosecutions. It’s already been in a public domain and in the press. But there are different forces of work. The question of a peace agreement depends upon political will, upon willingness of both sides to come to some form of effective compromise. It’s very rarely that it ends by a certain party surrendering, and I don’t see this happening in this case either. Another option is a sensible peace conference and a compromise, and that seems to me that it’s the most likely way of how the conflict will come to an end. That’s just my personal guess, looking at the war history of the world.

- On January 14, another terrorist attack took place in Ukraine. As a result of a Russian Kh-22 missile strike on the apartment building in Dnipro, 46 civilians were confirmed dead and 75 injured. The Security Service of Ukraine has already identified the 52nd Russian military unit of Heavy Bomber Aviation Regiment of the Russian Air Force that has been involved in this crime. Could you share your vision on the prospects for prosecuting and convicting these Russian servicemen?

- It’s better to prosecute those accused of war crimes in the Ukrainian court. The ICC can deal with such cases lumped together, but these cases will require an "in absentia" mandate for the arrest in order to act very quickly.


- Since March, you have been an Independent Adviser to the Ukrainian Prosecutor General. How often do you communicate with the Prosecutor General's Office? What issues are you asked to give advice on?

- I’m in weekly contact with the Prosecutor General or members of his staff. There’s a range of questions that we discuss, but I can’t tell you what the questions are because that’s sensitive information. But they are wide-ranging and most of them revolve around international law and best practices.

- You were a judge with the International Criminal Tribunals for the former Yugoslavia and Rwanda and obviously you’re more immune to manifestations of brutality. But was there anything in Ukraine that shocked even you?

- As a criminal judge in international cases you hear a great deal of terrible evidence and see terrible things. But I think what’s happening in Ukraine is especially difficult for anybody to comprehend.  We saw years of rising tension in Rwanda and years of rising tension in Balkans, and there is no obvious reason why the aggression by the Russians should have happened at this stage in Ukraine. Or why there should have been such a large number of civilian casualties. I’m not easily shocked but several things I’ve seen and read about Ukraine have indeed shocked me.

- What exactly shocked you?

- The number of civilian casualties. Everything indicates that the population is intended to be simply destroyed in whole. I mean if this is a question of military tactics pursued by the Russians – to destroy a town so no building is left standing, then it is going inevitably to imply a large number of civilian casualties. That’s s what is known as all-out war, or the war of aggression.


-  After Russia's invasion in Ukraine, some people keep suggesting that the existing system of maintaining international peace and security needs to be reformed because in the 21st century, it failed to protect people from the terrible crimes of war, and because it does not fulfill the purpose for which it was created. In your opinion, what needs to be done to start reforming the current system of international peace and security?

-There is no easy, simple answer to that. The short answer is I think we’re much better off having the UN, the UN Charter, the General Assembly, and the Security Council. If we did not have them, peace would depend upon with your state responsibility. And if you have a state that does not exercise mature responsibility and launches an aggressive act, whether it’s targeting Ukraine or any other territory, then of course the best the United Nations can do is bringing humanitarian aid or, in some cases, deploying the UN troops on the ground. The real question is how effective is the UN Security Council. And my personal view is that it’s never going to be fully effective as long as any one country has a right of veto.

- Do you share the opinion that Russia should be expelled from the UN Security Council?

- I don’t agree with expelling – this is my personal view. I think we are far better off having Russians inside and encouraging them to behave better. If they are expelled from the Security Council, they will simply see that as evidence of what they claim ‘the rest are against them and are out to destroy them full stop’.

There is no such interest or intention, to invade or destroy Russia, but there is a great deal of suspicion and paranoia on Russia’s part. And if you were to expel Russia or indeed any other country from the Security Council it would not actually achieve very much and it could cause even more conflicts. I think the best way to go is to keep them within the system but make it clear that their behavior is irresponsible. And we should do it in every possible way we can.

Iryna Drabok, Alla Shershen

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