Executive director of the IBA Dr. Mark Ellis:

«Ukrainian lawyers are facing the unchartered territory»

After Russia's full-scale invasion of Ukraine, the legal community around the world condemned the illegal actions of the aggressor country. The International Bar Association (IBA) launched programmes to help Ukraine and began searching for ways to bring war criminals to justice and compensate for damages. The IBA's activities in this area were headed by Executive Director Dr. Mark Ellis, who was on a working visit to Kyiv in late summer. We had the opportunity to ask him about the state of work and existing problems.

- Mr Ellis, this was your third visit to Ukraine this year. You must have already formed a certain opinion about our country and Ukrainians. What is the most striking, perhaps impressive, or surprising for you? 

- Since the war started, I have visited Ukraine three times. In prior years, I visited Ukraine several times after the collapse of the Soviet Union. My recent visits have focussed on establishing arrangements with Ukrainian government entities so that the IBA can provide effective and meaningful support to Ukraine. I remain so impressed with the strength, kindness, and perseverance of the Ukrainian people. The IBA will continue to be there in solidarity and support for Ukraine.

- After 24 February 2022, everyone has to consider the “Ukrainian aspect”. How has the focus of IBA's work shifted? What is on the agenda today?

- As an organisation at the forefront of promoting and protecting the rule of law and international justice, the IBA has a duty to support Ukraine and its legal profession, institutions, infrastructure, and citizens during this difficult time.

Since Russia’s invasion of Ukraine, we swiftly initiated the Association’s response to the crisis and set out a plan for delivering assistance to Ukraine.

The IBA is acting on a number of fronts to support Ukraine and ensure accountability for war crimes and other international crimes, including the crime of aggression:

The IBA has signed a memorandum of understanding with the prosecutor general of Ukraine, Andriy Kostin, and another with Ukraine’s Ministry of Justice and the Coordination Centre for Legal Aid Provision that sets out the terms of support for free legal aid provision.

An IBA-Ukraine Ministry of Defense MOU was drafted to improve the legislative framework to ensure proper defence in cases concerning military crimes. We are also assisting the MoD on several arbitration and mediation cases regarding suppliers in Europe and elsewhere.

Additionally, the IBA provides substantial humanitarian and technical support to the Ukrainian Bar Association and the Ukrainian National Bar Association.

A MOU was signed with the National School of Judges of Ukraine (NSJU) and we have agreed to provide support to the NSJU in its aim to ensure effective judicial procedures in cases concerning domestic war crimes trials.

The IBA Family Law Committee is providing legal assessment to the Ukraine Ombudsman on status of children in selected European countries. A new MOU will be signed with the Ombudsman.

Moreover, the IBA’S global network of lawyers has been offering support for Ukraine by providing pro bono advice in a range of areas including anti-trust, environmental damage, war crimes and asset recovery. Finally, the IBA has focussed on Ukraine during its 2022 and 2023 Annual Conferences, including having President Zelenskyy address our delegates.

- Crimes against humanity, war crimes, and crimes of aggression should be investigated by the International Criminal Court. But Russia does not recognise its jurisdiction. Ukraine, although it signed the Rome Statute in 2000, has not yet ratified it. So, are there any real ways to punish the Russian leadership for starting the war? Can you assess the prospects?

- Ukraine is not a party to the ICC Statute but has lodged two declarations accepting the jurisdiction of the Court for crimes commited on its territory from 21 November 2013 onwards. For war crimes and crimes against humanity, it is sufficient for the State on whose territory the alleged crime took place to have ratified the Statute or to have accepted the jurisdiction of the Court. However, the exercise of jurisdiction by the Court over the crime of aggression is subject to additional conditions: both the State in whose territory the act of aggression is commited and the State whose nationals are the authors of the aggression must be parties to the Statute and must also have ratified Statute amendment relating to the crime of aggression. Since Russia and Ukraine have not done so, the ICC does not have jurisdiction over the act of aggression commited by Russian nationals in Ukraine.

There are currently political and legal efforts underway to establish a tribunal that would be able to close that gap. It looks likely that there will be an International Tribunal for the Crime of Aggression, alongside the International Criminal Court.

However, let me say this: With or without a special tribunal for the crime of aggression, Putin’s arrest and surrender are not expected to occur soon - considering his firm grip on power. However, I have always said that “international justice plays the long game.” History shows that leaders accused of atrocity crimes do eventually face justice. The arrest warrant comes with a high price for Putin. It consigns him to the ranks of past heads of state turned war criminals, such as Slobodan Milošević, Charles Taylor, Muammar Gaddafi and Omar Al Bashir. There is no coming back from this arrest warrant. History will mark “war criminal ” as Putin’s last status. The warrant against Putin will also restrict his travel, since Putin risks being arrested and surrendered to the ICC each time he sets foot outside Russia. The 123 States Parties to the ICC Rome Statute are obliged to execute the warrant. Moreover, any state not party to the ICC may be asked by the Court to provide assistance based on an ad hoc arrangement. Lastly, For the international community, the arrest warrant reaffirms that justice and accountability are principles fundamental to the world legal order and worth supporting. The warrant against Putin is a crucial milestone in the path towards accountability for atrocity crimes. Furthermore, the warrant reinforces the tenet that no mater their influence, rank or position, even the most powerful must and can be held accountable.

- To collect evidence of international crimes, IBA has created the eyeWitness to Atrocities app. In 2022, you launched its Ukrainian-language version. Tell us about the practical importance and functionality of this app. Can Ukrainian advocates join the documentation of war crimes?

- Since the start of the war, Ukraine’s legal organisations and the Prosecutor General have encouraged the use of the IBA-founded eyeWitness to Atrocities app, which is being used to amass verified documentary evidence of war crimes in a way that is compliant with international legal standards.

The main feature of the app is that it collects evidence – through photography and videos – in a way that safeguards those from manipulation, sends them to teams at eyeWitness, and then stored by the international company LexisNexis. Once stored, the pictures and videos can be used in a court of law as verifiable and trustworthy evidence.

To date, more than 32,000 images and videos have been received, with several case files submited to the United Nations-mandated International Commission of Inquiry on Ukraine.

- Does the IBA monitor the problems of the legal profession that have been exacerbated in Ukraine during the war? Media constantly publishe facts of violations of the guarantees of the legal profession by law enforcement agencies: identification of an advocate with a client, violation of the attorney-client privilege, ignoring the requirements of the law during searches of advocates, and exerting pressure up to and including beatings. How should the legal profession respond to this if the state is unwilling to punish the offenders? The problem is complicated by the fact that Ukrainian society does not perceive the work of a lawyer in defending war criminals and their accomplices (collaborators). Citizens do not understand how legal aid can be provided to those who kill civilians and destroy homes. There are cases in Ukraine where advocates are forced to refuse to defend war criminals or their accomplices. Perhaps, in times of war, it is worth revising the legal standards of protection towards simplification?

- In an address to delegates of the IBA in October 2022, President Zelenskyy stated: “… lawyers will put an end to this war - after the military, after politicians. Exactly lawyers. Those who will ensure that all those guilty of terror are brought to justice and that all damages caused by Russia are compensated - at the expense of the assets of the aggressor state itself.”

With the first war crimes trials of captured Russian troops having garnered a lot of public atention, Ukrainian lawyers are facing the unchartered territory of international criminal trials.

It is crucial to understand that protecting the right to a fair trial is not just about ensuring that the processes protect an individual’s fundamental rights. It’s also about ensuring that Ukraine’s criminal legal system is viewed as fair and just. Ukraine has a crucial interest in demonstrating its trials are fair. This will be part of Ukraine’s legacy. Without fair trial, it would undermine the rule of law and would jeopardize the support of the international community towards Ukraine.

The message has to be: “Without fairness in these trials, we’re no beter than Russia.”

It is the IBA’s mission to promote and protect lawyers, bar associations and the rule of law worldwide.

In Prague 2005, the IBA Council passed a Rule of Law Resolution, reiterating the fundamental principles of what we understand with Rule of Law:

- an independent, impartial judiciary;

- the presumption of innocence;

- the right to a fair and public trial without undue delay;

- a rational and proportionate approach to punishment;

- a strong and independent legal profession;

- strict protection of confidential communications between lawyer and client;

- equality of all before the law.

- Should the criteria for effective war crimes proceedings be changed? This spring, the IBA signed a memorandum with the National School of Judges of Ukraine. What should Ukrainian judges proceed from during martial law?

- I’m impressed with the National School of Judges’ commitment to ensuring fair trials on the national level. I serve on the NSJ’s International Advisory Council, so I remain focussed on assisting the NSJ on training Ukrainian judges on ensuring effective and fair domestic trials.

- You also cooperate with the Ukrainian National Bar Association. What areas do you see as priorities?

- When the war started, the IBA and the Ukrainian National Bar Association partnered to host a series of online seminars to equip lawyers with the necessary tools to navigate the complexities of domestic war crimes trials.

It was our objective for legal professionals in Ukraine working on these complex trials to gain a better understanding of international law in respect to war crimes trials. This is essential to the credibility of Ukraine’s efforts to ensure justice for individuals accused of egregious criminal acts.

More recently, the IBA has assisted the UNBA financially in strengthening its own operations to support its members (and citizens in general) during these extraordinary difficult times. The assistance included ensuring that lawyers in the occupied territories were also supported.

- Did you manage to do everything you planned in Kyiv? What do you have in mind for the future, and when should we expect your next visit?

- Yes, I had very extensive meetings during my week’s visit. Each visit is focused on building on our previous work and ensuring that the IBA delivers the assistance we promised. Future trips will do the same, and also assess if there are other areas where the IBA can be of assistance. We remain steadfast in ensuring that Ukraine is helped during this unprovoked war by Russia.

For reference. Law & Business is Ukraine's weekly legal newspaper. It circulates to lawyers, judges, and general counsels from state offices. The paper reports legal information of national importance, including legal news for the business and private sectors, court decisions, verdicts, practitioners' columns, and coverage of legislative issues.

Закон і Бізнес