Disclaimer: Please note that Dr. Guariglia’s responses to questions posed in this interview reflect his personal opinions and should not be attributed to International Development Law Organization (IDLO).

Prior to the escalation of the conflict between Russia and Ukraine in February 2022, what were the core projects and goals of IDLO regarding rule of law in Ukraine?

IDLO started working in Ukraine in 2015, not long after the Revolution of Dignity in Ukraine [in March 2014]. At that time, our work was focused primarily on reconciling, advocating, and supporting the anti-corruption and good governance reforms. We worked on improving governance mechanisms and conducting legislative and institutional reforms. This was done primarily through the creation of big institutional architecture to tackle corruption. Namely, the National Anti-Corruption Bureau, the Specialised Anti-Corruption Prosecutors Office, and the specialised High Anti-Corruption Court. In addition, a big decision was taken in the Office of the Prosecutor General (OPG): some 10,0000 prosecutors were subject to a mandatory re-attestation process, to determine the level of their professionalism and integrity. Almost 50 percent at the central level did not pass the evaluation. As a result, there was massive internal change in the OPG. This was launched at the top level and then replicated at the regional and local levels. In addition, for the first time in the recent history, open and merit-based competitions were held for the entry level (district) prosecutors. These were carried out by human resources commissions consisting of equal numbers of existing prosecutors and independent experts. All the reforms and systems I have just mentioned are still in place now.  

How did the work of IDLO change following Russia’s invasion of Ukraine in February 2022?

When the Russian invasion started, Ukraine’s Prosecutor General asked us to refocus our efforts to support what, at that point in time, were the nascent efforts to document international humanitarian law violations. We became a partner to the Atrocity Crimes Advisory Group (ACA), which is a consortium put together by the EU, US, and the UK to coordinate international efforts supporting the OPG in Ukraine. As part of this effort, we have provided immediate advice on conceptual issues, assisted in the production of guidelines [on war crimes prosecutions] and trained prosecutors on preparing cases with different theories of liability and handling evidence – including chain of custody and secure storage of terabytes of digital evidence. We have also provided advice and support in relation to the prosecution of environmental war crimes.

However, it’s important to emphasise that no one is taking over. Ownership lies squarely with Ukraine’s OPG – all the decisions as to what to charge and how to do things and so on are with them. As the name indicates, the ACA advises. That advice may or may not be followed. That said, by and large, it has, so far, been followed. In this regard, it’s not frequent, that you see a national office of the prosecutor that is so willing to admit its limitations in the certain areas of the law and in relation to certain investigative techniques or that is willing to engage with external experts.  

A huge number of war crimes have been documented in Ukraine. How is Ukraine’s justice system adapting to investigating, prosecuting, and adjudicating these? Is there capacity to handle this volume of cases?

Obviously, this is a huge challenge for any legal system. Until now, we’ve been working on the immediate needs of the criminal justice system in Ukraine. Providing the support that the OPG, investigators, and judges need to prosecute these crimes effectively – to prepare solid cases and adjudicate based on a good understanding of the law and the facts. The OPG is now moving into the next phase, developing policies and long-term strategies in consultation with its international partners.

Overall, I believe OPG should be praised for its agility and adaptability, its ability to learn on the job and its ingenuity in facing unprecedented challenges. They should also be praised for their openness to working with international advisors and technical staff. But there is a big question mark as to the sustainability of this effort. With each piece of territory regained by Ukraine evidence of new war crimes are unearthed. At the beginning, the OPG was overwhelmed. It was very difficult to see how it would be possible for investigators and the judiciary to cope. Many prosecutors were switched to working on war crimes almost overnight, regardless of what their area of specialisation was before. The OPG had to work with what they had. Basically, if you were an anti-fraud prosecutor on Friday, on Monday you were a war crimes prosecutor and you were sent to Bucha. There was truly no other option. Training had to be provided online and in a compressed manner because investigations were already underway and people were on the ground, so they couldn’t attend in-person training.

The one big advantage that the OPG had at that time was that the combination of the armed conflict, martial law and the curfew flattened the ordinary crime curve. However, as a sense of normality has come back, particularly in the big cities like Kyiv, ordinary crime rates are going up again. As a result, the OPG is overstretched and pulled in different directions. Of course, the work on war crimes must continue, but at the same time the problems of ordinary crime – corruption, trafficking persons or cars for example – are still there. So, I think, there is a real question as to how we, the international community, are going to support and fund the justice system in Ukraine in the long term. Because we are talking about a huge number of war crimes. Prosecuting them will not take one or even two years. Ten years down the line, we are still going to be dealing with these crimes.

How do we handle this? Now we have the ICC. We had the big news recently that the ICC issued an arrest warrant for Russia’s President Vladimir Putin and Child’s Rights Commissioner, Maria Lvova-Belova. This is a major development of course, but these warrants of arrest don’t detract from the reality that the ICC may only be able to prosecute a few crimes. The ICC also has several other situations, some of them with victims who have already been waiting for justice for too long – for example, Myanmar/Bangladesh, Venezuela, or Palestine – and therefore cannot become the International Criminal Court for Ukraine. So, then the question is: how do we facilitate the creation of a system that is effective and functioning in the medium to long-term without derailing Ukraine’s entire criminal justice system? And that is a big challenge, one that we must start thinking about. One option is to create a special wing within the national judicial system with a war crimes prosecution division that is properly staffed and with a war crimes chamber that does nothing other than war crimes. That could be part of the international reconstruction efforts. Of course, people have to be recruited and everything would need to be set-up. All of this takes time and money. The other option that has been proposed is the creation of a special tribunal for Ukraine. It is primarily presented as a tribunal devoted to the crime of aggression. But it is also possible that it could supplement the work of national jurisdictions. There are different options that are open. But for me the question of sustainability is a big one that must be addressed.  

Advocates for a special tribunal for the crime of aggression, which is a leadership crime, had argued that it might be one of the only ways to hold those in the upper echelons of Russia’s political and military leadership accountable for crimes committed in the Ukraine conflict. However, given that the ICC recently issued an arrest warrant for Russian President Vladimir Putin, can it still be reasoned that it would be an effective use of resources to create a special tribunal focused on aggression?

The crime of aggression is considered the crime of crimes in international law because it is the original crime in a conflict from which all others committed during it stem. The proposal to create a crime of aggression tribunal is there, in part, because there is an obvious, noticeable impunity gap. I think, as well, there is a generalised feeling that in this case the aggression has been something too huge, too shocking to be ignored. And while the ICC has demonstrated that it could reach the highest echelons of political responsibility via the ordinary war crimes route, it must also be admitted, first, that this very important development relates to a confined set of facts and unavoidably cannot reflect the much broader responsibility of the top political and military actors for the conduct and consequences of the armed conflict in Ukraine, starting with the very decision to invade Ukraine. And second, there are several key players who are closely linked to the ongoing aggression, but who stay at arm’s length from the conduct of hostilities and the commission of any violations of international humanitarian law and/or international human rights law and are consequently unreachable via the war crimes/crimes against humanity route.

Ukraine has jurisdiction over the crime of aggression. The ICC does not because of the overly restrictive jurisdictional regime of the court (the joke I always make is that unless somehow Lichtenstein decides to declare war on Luxembourg, we will never see a case of aggression before the ICC). Ukraine’s exercise of jurisdiction bounces up against the principle of personal immunity, which means that it cannot take judicial action involving those situated at the highest echelons of political-military responsibility. In short, the forum that can exercise jurisdiction has a problem with immunity (Ukrainian courts) and the forum that would not have a problem with immunity (the ICC) cannot exercise jurisdiction. It’s a Catch-22 – a paralysing situation.

So, there is a demand for some form of accountability [for the crime of aggression]. And, if that is the case, then basically the only solution is to create an international tribunal. There is, of course, still the immunity question as to whether that international tribunal could somehow trump the immunity card. The standard the ICC put forward in the Al-Bashir case is that under customary international law, personal immunities are not applicable for core crimes – war crimes, crimes against humanity and genocide – before a properly constituted international criminal tribunal. Now, what constitutes a properly constituted international tribunal remains to be seen. Obviously, the ICC considered itself one. The ICC is a treaty-based institution, but one could say that it has a sufficiently a broad base of international support to considers itself as within that format – because it has been used by the UN architecture and by the Security Council.

I would say that a tribunal put together by a handful of States would probably fall short of meeting that criteria. The suggestion of an ‘internationalised, national court’ grounded in Ukraine’s legal system, put forward by some States would also most likely not meet this threshold. But an international tribunal like the Special Court for Sierra Leone, created with the support of the General Assembly and with an agreement between the UN and Ukraine, may have sufficient legitimacy and international authority to claim that it meets the required criteria to overcome personal immunity. Of course, that’s assuming that the ICC caselaw is correct and applicable to the crime of aggression, which I’m not going to take a position on. But that’s the main authority that we have right now.

Regarding whether it is an effective use of resources, well, it depends. I always think that accountability is a worthwhile investment. I come from a country [Argentina], where accountability has been a key element of post-dictatorship culture. In a way, in my country at least, accountability has helped preserve the rule of law and allowed the country to survive several terrible financial crises – things that could have crashed the rule of law in other countries. I think that this is primarily so because, through the Junta trial, and other accountability mechanisms, it was shown what happens when you ignore the rule of law, when you violate human rights en masse. So, for me, the argument that this tribunal will cost a lot of money is certainly determinative. And, as I said before, I think you could create one tribunal that, yes, prosecutes aggression but also has other functions – to support the work of [Ukraine’s] national judicial system and to work in sync with the ICC. Basically, establishing a joint venture that distributes work evenly between courts that have different focuses.

That said, even if it was decided to create a special tribunal only for the crime of aggression, I don’t think it has to cost that much. Regarding physically holding the tribunal, there are places which could be used without having to create everything from scratch. For instance, the building of the former ICTY [International Criminal Tribunal for the Former Yugoslavia] has a lot of free space, has an adequate security system in place as well as evidence collection and evidence storage systems which could provide an adequate base at least for hitting the ground running. In addition, it is conveniently located opposite to Eurojust, where the largest collection of digital and open-source evidence pertaining to the Ukrainian armed conflict is stored. And there are ways to make efficiencies so that it isn’t necessary to break the piggy bank.

Moreover, the crime of aggression is, as we have already discussed, a leadership crime. A lot of evidence has already been gathered. You don’t have the challenges of going into the field and conducting massive forensic operations. What you need, primarily, is state-of-the-art analysis, capabilities and systems. You need people that can understand the leadership and military structures of the Russian Federation and Belarus.

Another side of this is that while you and I probably have the same view as to what happened in terms of the unlawfulness of Russian aggression, we should not commit the mistake of viewing everything through our Euro-Atlantic lenses. In other parts of the world, there’s a completely different narrative out there as to what happened – the myth of NATO provocation, arguments of humanitarian necessity and so on. I personally find this narrative untenable and profoundly troubling, but it won’t be debunked by you and I complaining about it. But maybe having an authoritative finding as to what happened and what did not happen by a judicial body vested with international legitimacy, can be an effective way of countering this competing narrative. I was never persuaded by the case for the Special Tribunal of Lebanon – I have enormous respect for the people who were in the Office of the Prosecutor and the huge effort they made, but I never thought that was a Tribunal worth creating. But, having said this, I have to recognise that, because of that Tribunal we now know how the killing of [Lebanese Prime Minister Rafik] Hariri happened. We know who was involved, what the mechanics of the criminal event were. We have an historical record, that we wouldn’t have had otherwise, and which for Lebanon, I believe, has a lot of value. And that was a product of a proper judicial process. So, I think there can be a lot of benefits in creating this type of tribunal. I’m not necessarily taking the position that it should happen. But I am saying that I understand the logic of those who are supporting it, as well as the Ukrainian insistence on its creation.

You mention a Euro-Atlantic centric perspective of the conflict. Is there a risk that if it is mostly Western States (which is currently the case) that support the creation of a tribunal for the crime of aggression in Ukraine that it would lack credibility in other regions of the world?

I’m not a political analyst, but yes, if a special tribunal is viewed as a creature of the Western powers, and other States are either indifferent to it or completely opposed, then I think you’re absolutely right. But this doesn’t have to be the case. It may be possible to rally and put together a broad coalition of States and, in the context of the UN, to push for a General Assembly Resolution. It is a different story if the emerging narrative is: ‘We need this, this is important, this should never happen again and we want to, as an international community, send that message very clear terms. And, by the way, you know, we need to also have a new conversation as to aggression and use of force more generally, right?’. I want to emphasise that, in my opinion, this last part is very important and would involve changing the overly restrictive jurisdictional regime of the ICC on [the crime of] aggression as well as an undertaking from all States, starting with the big powers, that they will not resort to the use of force outside the UN framework and other international law mechanisms.

When aggression was discussed in the Rome Conference [when the ICC’s Statute was drafted] a big group of States were thinking: ‘This is complicated, it’s politically very sensitive and if aggression was to be included in the jurisdiction of the Court, then it would be a Court of a very different nature.’ It was also thought that it was the role of the Security Council to decide what’s aggression and what isn’t. Then you have the Kampala Conference with, again, very different views around the table. In the end was possible to get aggression in with a good definition mirroring the preexisting definition from the General Assembly, but at the cost of a highly restrictive jurisdictional regime.

This is the moment where we must rethink our approach to aggression. It’s now very evident that it’s not the minor or sporadic thing that some States thought it was when they were trying to kick it out of the Rome Statute or to narrow much as possible the scope of the jurisdictional regime attached to it. We need to revisit the entire concept. The conflict in Ukraine has been a terrible development, with implications for the entire world – we’ve seen hunger in Africa and elsewhere, an energy crisis, a set-back in our ability to cut CO2 emissions. The ramifications are huge. So, I think this can be, in the words of Bruce Ackerman, our ‘constitutional moment’ – one that reshapes our understanding of our global social ties and how we want to live together. And, maybe, that’s a good thing.