"Lemkin, Genocide and the Modern World" - Online seminar

good afternoon welcome to the second part of the Lamkin genocide and the modern world webinar organized jointly by the agilonian Law Society and the kashishka foundation my name is Marx kulibonski I'm the president and executive director of the Kosciusko foundation and it's my great pleasure and honor to welcome our distinguished guests speakers and all attendees who are joining us now since the start of the Russian invasion of Ukraine the Christian Foundation has been raising funds that were used to provide humanitarian assistance to Ukrainian refugees in Poland to support Ukrainian Scholars students and children through various educational projects among the foundation's key project is also the cooperation with the Smithsonian institution aiming to protect a Ukrainian National Heritage I'm pleased that thanks to the collaboration with the agilonia Law Society we can engage in yet another project relevant to the current situa situation in Ukraine we hope today's discussion will increase knowledge about polish Jewish lawyer Rafael lemkin and his contribution to international human rights law now it is my pleasure to introduce Dr Elizabeth zahanter president of the agilonian Law Society who will moderate the discussion Elizabeth the floor is yours thank you so much thank you Marek good morning good afternoon and good evening allow me to extend a very well welcome to everybody to all of us who joined us today we are delighted to have you across so many time zones and contents continents in www it is our great honor and privilege to welcome our very distinguished faculty and our distinguished keynote speaker Ambassador rat this is our part two of our lemkin genocide in the modern world webinar and the agilonian Law Society started this initiative of creating webinars dealing with central European contribution to international law unfortunately Central and Europe legal history or culture is kind of huge like knowledge among many in the West and even though for example legal culture and law of Nations international law and even human rights law goes back in Poland to late medieval early Renaissance times and it was incredibly Progressive for the times when it was created and I hope it is not presumptuous of me to say that this is kind of similar initiative to that of Professor Tim Timothy Snyder of Yale who is delivering for for the public fantastic public lectures about history of Ukraine trying to a close that knowledge God but also counteract the Russian propaganda about the existence of vegetarian cultures so we have three objective objectives today first of all we will showcase Lamkin College Jewish lawyer member of the Warsaw bar the man who coined the term genocide the men behind the U.N convention and twice nominated for Nobel Prize for his humanitarian work the second thing is we want to explain the concept of genocide it is a peculiar climb that entered the imagination in a popular culture that is deeply misunderstood and we will compare it with other atrocity crimes and we will use the example of the unjustified Russian invasion in his Ukraine to Showcase to you how even very obvious in egregious violation of international law how difficult it is to prosecute them using current laws so let me give you a one minute introduction to law because I know that there are some people among the audience who are not lawyers so before Ambassador speaks it gives us keynote speech let me just introduce you to the law first of all we have several major International treaties that deal with the atrocity crimes starting from U.N Charter Geneva and have conventions with Marine protocols the U.N genocide convention their own statue and so forth and so on and genocide is one of those very important atrocity crimes which is defined not only in the U.N convention but originally by lemkin which is a very different definition and we also have a concept of cultural genocide and we will also address that issue later on and then there are times of aggression for example violation of article 2.4 of the U.N Charter constitutes a kind of aggression which we are seeing right now and then there are two very important crimes categories of laws war crimes and times Against Humanity and there are many other laws used in Bellow and a conduct of war and crimes during occupation and so on let me just say one thing crime scene is Humanity laws respond different differently to atrocity situations than typical war crimes or and genocide behaves yet completely differently and the reason for it is that the crimes against humanity uniquely recognize the use of state or in the OR organizational policy to attack civilians which makes them critical from promoting accountability of senior leaders of you know directing the atrocities and yet I would suggest to you that we are facing an impunity cup even though both Russia and Ukraine are parties still for Geneva conventions and additional protocol and the hate convention number four and Annex regulations um despite all of that it is very difficult to prosecute Russia for the various crimes that are being committed why first of all genocide is a very difficult crime to prosecute because of the Stalin's revisions of the original draft of the definition of what genocide is and also there are no mechanisms to hold Russia or even below Russia accountable for the crime of aggression against Ukraine because they are not members they are not subject to the ICC jurisdiction now one word about aggression aggression is a leadership crime and it is very important that we will that will address and prosecute the leaders who are starting this home um War unfortunately most national laws Ukrainian law American law polish law provide personal immunity to heads of state which basically means that lots of actions against larger leadership through the local courts are bought and model that as I mentioned ICC is precluded from dealing with the kind of aggression because of Russia's status as a non-party to their own statute so would other tribunals do we have to address those three major kind of atrocity crimes well first of all we have a icj which is international culture Justice based in Hague principle organ of the United Nations um and in fact Ukraine filed the case fairly early on before icj under the genocide convention and one but it was a post-genocide cleansed by the Russians that Ukraine is committing crime of genocide in the eastern part of Ukraine against the Russian subject and they of course lost the second chord that is worth mentioning briefly for our non-lawyers audience is ICC which is international criminal records it's a much more modern chord created by Ron statue in 2002 and even though Russia is not a member as I said Ukraine made the Declaration on our article 12 of that statue saying that it would allow it should allow ICC to have jurisdiction over work times and times Against Humanity commented on the territory of Ukraine and in fact special prosecutor of ICC Karen Khan has opened an investigation in Ukraine um and then they are special tribunals we have a history of special tribunals for example constituted under auspices of U.N a special tribuna for Rwanda Sierra Leone Yugoslavian Cambodia any in Europe we have couple of courts that actually can deal with some of the crimes even though they are really not constituted for that purpose for example European human rights already addressed under the EU Convention of Human Rights certain crimes rather being committed in Russia and then um um European Union has recently agreed to establish new tribunal to prosecute kind of aggression um president Ursula from The Lion announced that yeu is supporting the jurisdiction of ICC in light of the Target that Russia is not accepting jurisdiction of ICC this this special Court called International Center critical solution rights of aggression against Ukraine icpa will be created and it's interesting it will be also based in Hague and within joint investigative team which was established in 1922 and I'm going to mention to you that Poland Lithuania Ukraine and the circle eurojust which is the European Agency for criminal justice will be members of that joint investigators team um and finally one more word they are also local courts when you can prosecute various war criminals for atrocity crimes using the second Universal jurisdiction and in fact entering part one of our seminars um some of our faculty describe how Poland prosecute not prosecuted Nazis uh after the second world war under the uh for genocide Sweden did the same and actually currently several other countries like Germany or Dutch courts are Prosecuting for example yazidi genocide using exactly those principles and finally it might come to you many it's a surprise to many of you that U.S has actually Pat you record in that area I will always assumed that we are a fantastic legal system and we do for the most part but when it comes to prosecution of atrocity crimes well we just have a very ancient alien tortact which will seriously lived by the Supreme Court we have a tortures victim protection act of 91 which needs Amendment but we have a one bright light President Biden just signed January this year and justice for victim of war crimes act which will kind of bring United States within the in compliance with the Geneva Convention so this was very cursory description of the layout of land and now let me introduce to you Ambassador Stephen rap and Mr Ambassador it's a true honor and pleasure to have you here with us I welcome you not on in my name again Association and all the wonderful organizations and universities that are co-sponsoring this event and well Mr Ambassador written an introduction let me just tell you a few things the few people and the key points of his amazing career Mr Ambassador served as a force U.S ambassador at large for Global criminal justice from 2009 to 2015. he was appointed by President Obama and as an ambassador at large he was responsible for hiding up office of global criminal justice in the U.S Department of State and in this position he was advising Secretary of State on issues related to war crimes kind of civilians Humanity genocide and American policy related to prevention and responding and securing accountability for Mass atrocities um he also coordinated American support for international criminal tribunals including ICC and he's widely credited as with arranging for the U.N commission for inquiry uh to gain access to the documents documenting torture by the Assad regime in addition from 2007 to 2009 Ambassador rap was a prosecutor in the special Court of Sierra Leone and he succeeded in the historical prosecution of the former Liberian presidential Taylor for war crime since Sierra Leone and it was first conviction as far as I know in history on crime savings Humanity in charges for sexual slavery course marriage attacking peacekeepers and child soldiers in violation of international law in addition from 2001 to 2007 he was one of the chief chief of prosecution and the international criminal entrepreneur for Rwanda where again his team achieved first conviction in history for the last media against leaders of the mass media from the crime of public incitement to commit to genocide and even when Ambassador rap was the United States Attorney in the northern industry of Iowa he actually won historic convictions using violence against women act and more recently Mr Ambassador has been serving in various advisory capacities to various institutions among thematic School of government and Oxford um special um advisory capacity to the center of prevention of genocide distinguished fellow at the Hague Institute of global Justice and this distinguished fellow from the prevention of genocide in the U.S Holocaust Memorial Museum so with that Mr Ambassador the floor is yours well thank you very much Elizabeth for that uh for that introduction and and also uh of myself but also the introduction to uh to to the field of international uh criminal law and and what we're facing in in Ukraine I I um I've been often in Poland recently but haven't spent as much time as I should I'm hoping to be in Warsaw perhaps later this month and I look forward to meeting people in person there some of whom are on the on the on the panel today I was most recently in uh in Krakow and on the train through premisel to leviv uh uh the weekend before last for the for the the conference uh on Justice in in in Ukraine uh which was I think a fantastic conference in terms of bringing experts together to discuss how we can achieve accountability for these massive crimes we have it as everyone knows a war in Europe like we have not seen for now 78 years we have strong evidence of the large-scale commission of international crimes overwhelmingly on the Russian side as you went through that list of course we have war crimes we have crimes against humanity and and knowing our subject is genocide and the pioneering work of Raphael lemkin we also have allegations of genocide uh in the certain conduct by Russian forces and by the Russian government fall within the defined acts set out in the genocide convention which will be 75 years old uh come December 10th or December 9th this year the day before the 75th anniversary of the universal Declaration of Human Rights quite a week of anniversaries uh the The Challenge on genocide which I'll discuss uh more deeply later is the high bar that courts have set as to to genocidal uh intent as to physical and and biological destruction of a of a substantial part of a population of course we also have the uh the crime of aggression the overarching crime the judges in Nuremberg said is the one that contains within it uh the accumulated evil of the whole as as we watch these crimes uh being committed before our eyes uh we have to recognize that they've been committed with the expectation of impunity on the Russian side and and we shouldn't minimize the failure of accountability the world's failure of accountability for the mass atrocities in Syria the role of that plague in reinforcing that that Russian expectation despite the horrors in Ukraine to date Syria does remain because of the numbers of death and their brutalities certainly north of a half a million dead the worst atrocity crime scene of the 21st century uh 90 of the crimes committed on the regime cry on the regime side of certainly significant and even genocidal crimes committed on the side of the jihadists particularly by ISIS uh but of course as far as the regime is concerns Russians have been quite complicit in helping the Assad's develop their machinery of disappearance detention torture and murder whether dad probably exceed now more than a hundred thousand individuals largely civilian uh opponents of of of the regime that we're hoping that Syria could become a normal country a democratic country and and that was a a threat that that Assad and his Russian allies could not abide but we also have the direct intervention of Russian forces under Putin's control since 2015 and their participation directly into targeting of hospitals and medical personnel and and humanitarian actors violating the oldest Norm in international humanitarian law that comes from to us in the first Geneva Convention of the 1860s and also they're flying in support of of of of Syrian aircraft that was dropping chemical weapons another Norm that's been with us for more than a century in almost universally observed used because it could make neighbors uh with Rebel presence uninhabitable for civilians because it would kill them when they sought Refuge underground where ballistics could not uh easily reach them but heavier than air gases could and of course in the context of Syria we've had no ICC jurisdiction that was attempted with a resolution in the security Council 13 countries of the 15 voted yes Russia China voted no those are vetoes so it didn't happen but no possibility of course of the Territorial state that's committing 90 percent of the crimes to prosecute itself or agreeing to a Hybrid Court to do so in partnership with it on the positive side we've seen the dramatic increase in the quality and quantity of documentation of the Crimes by Civil Society organizations and that includes not just the crimes but also the linkage evidence that those necessary to connect those crimes to the high-level individuals who responsible we also seen the historic creation of an investigative mechanism by the by the general assembly that consolidates that information from Civil Society organizations and and and other actors uh the widespread growth of acceptance of universal jurisdiction in third countries uh that is in many of those countries gaining greater resources also cooperating together informing joint investigative teams uh to to do a more strategic job of using the jurisdiction that they have available and that's led to some successful prosecutions of regime perpetrators the third of which occurred in Berlin in late February which is really remarkable in the sense that mostly universal jurisdiction has been used to prosecute people almost a generation after the crimes were committed these are being being prosecuted while the crimes will be still committed in in Syria now when we deal with Ukraine uh we are in a quite different place still gaps is Elizabeth indicated uh but uh we do have uh Judicial Systems that have the jurisdiction that have the legal right have the legitimacy to prosecute many but not necessarily all of the crimes that have been committed we have of course the international criminal courts and we have to absolutely make it clear that the international criminal court has territorial jurisdiction by reasons of the Declarations that Elizabeth mentioned I was twice the cave as Ambassador in 2014 and 2015 to encourage the government then to to make the particularly that second declaration that gives the ICC total jurisdiction to the extent that there are grave crimes and meet the ICC threshold of war crimes crimes against humanity and genocide committed on the territory of Ukraine and I want to make it absolutely clear because we're going to debate on the issue and unfortunately the U.S government hasn't been clear on this as clear as it needs to be but I hope that'll be clarified in the next few days uh if that's territorial jurisdiction and it and it applies to the Nationals of of third states that aren't in the ICC it's like if I come to Warsaw and I murder somebody it's up to the Polish authorities to determine where I'm going to be prosecuted and if you go to if you go to Ukraine and you murder somebody uh it's up to Ukrainian authorities to decide where you're going to be prosecuted and they decide is it if a crime of a particular threshold it should be the ICC and that is is their call so it has jurisdiction of those three crimes but not of genocide as Elizabeth has said we also have a very active prosecutor General's office with a great deal of international assistance being provided a police agencies the National Police the security police the sbu uh that are investigating these crimes and they have jurisdiction for war crimes uh but not for crimes against humanity that's not in their statute they do jurisdiction for genocide uh and they do have a jurisdiction under an older statute for the crime of aggression on the other hand they are limited to not being under international law they cannot prosecute the leadership of the Russian State particularly the Troika and by Troika I mean President Putin the Prime Minister whoever that is and the foreign secretary at lavrov can't be prosecuted that while they're in office by another state they can only be prosecuted by Russia if it were to do it on himself or by an international court and of course the ICC is such an international court and so for the crimes that are before the jury before the ICC war crimes crimes against humanity and genocide that Court can and I suspect will soon prosecute Putin uh for for war crimes and crimes against humanity and has the right to do so under article 27 of its statute and by a variety of international decisions particularly its decision in the Jordan case involving Sudan in 2019 it makes no difference whether Russia has waived that right or not it is the court that's been called into being by the International Community as a whole uh we also of course have a great deal of activity in third countries actually the formation of two jits uh following joint investigative teams following on the heels of the most famous Egypt yet which was the the jet with the Dutch and the belgians and the Australians and the Malaysians and Ukraine uh that uh that built the case that was prosecuted and obsentious equal airport uh court house there's one there in the airport that prosecuted the those responsible for the shooting down of mh17 over Ukrainian territory in in 2014 but we now have jets that are working on developing cases in European countries and and attorney general Mark Garland was with his little leave uh which was also I should note in the past Poland Laval and and before that is Austria uh Lemberg the hometown and the place where lemkin was was it was was educated and taught uh but uh the U.S has joined as well in that joint investigative effort for those Third Country prosecutions now just to talk about a moment and I want to focus and I don't want to take all the time here for my my remarks but uh on on on the different crimes and what's really necessary to to succeed on them and uh and and the challenges that are that are faced uh in in different court systems uh first of all of course we have war crimes and as I indicated uh certainly uh enormous evidence of massive war crimes committed I tend to view war crimes in conflict in sort of two forms one or the more individual acts of the kind of which we see uh evidence in in busha uh the the acts of shooting civilians down in the street of putting people into in into squalid detention places where they're they're tortured electrocuted sexually violated sometimes murdered uh and uh and those kinds of crimes are those kind of Acts are without doubt war crimes uh the challenge with those crimes is attributing them to the high level actors the ICC as the Yugoslavia tribunal other tribunals were I prosecuted has the benefit of international law that allows you to attribute responsibility up the chain of command if you can show that the people doing those crimes had the uh um you know were under the effective control of that leadership and the uh and and those leaders those military commanders but civilian leaders on the way all the way up to Putin had knowledge or should have known or had reason to know standards a little different but uh of those of that conduct uh that was being committed and then failed to take action to prevent or punish actually I think at the ICC the statute is I think pretty clear in this regard with some of these acts because uh despite the overwhelming evidence of what happened uh that's been broadcast and documented by journalists from around the world uh the Russians have totally denied it haven't done what many countries do which is to say well we'll deal with this we'll prosecute out of control soldiers there's always a few bad apples that's usually what countries say they haven't said that in fact they've honored the units that have committed these crimes and so I think actually we have a relatively strong case of command responsibility however under the laws of Ukraine which of course also has jurisdiction over everybody up to those top guys uh they don't have command responsibility in their law so they have to show more direct involvement in terms of ordering it or contributing with intent to uh to these to these crimes but there's a second kind of of war crimes that are being committed and those are those that appear to be uh part of the strategy of the Russian forces now of course you could say perhaps even this intimidation and Terror of the civilian population through this killing could be part of that strategy and if you can find those papers and and and develop it that would be that would make for a very strong case and sometimes you do have particularly in well among groups like Isis Etc horrible things that are done as part of of strategy like the destruction of the and the sexual slavery of the yazidis who reviewed his infidels they deserved it but uh but here that's more challenging but from a top-down level there's no question that the bombardment that's been carried on by by Russian uh airplanes uh by Russian sea launched missiles by Russian uh artillery uh has had a tremendous effect upon the civilian infrastructure uh I should note however that when you deal with bombing and bombardment and Tom and others can can talk about this it's very challenging to prove that these are war crimes because uh it is a war crime to intentionally attack civilians on the other hand you can attack civilian objects if they're being used for military purposes uh you can even attack them knowing that there may be civilian loss of life uh but because of the of the large-scale military advantage that can be gained and so and you always have to look at it from the perspective of the attacker and you hardly ever have the attacker's orders as as they do these things on the other hand indiscriminate attacks like the kind we've had in Mario opal where they seem to be carpet bombing the city you're using what you know from from Putin's origin is when he first led the Russian State uh grows new rules the sort of flattening of the capital of the of the um of the sub Republic of of chechnya in within the Russian Federation uh that those are that that kind of disproportion of that kind of indiscriminate in which they make no distinction between civilian and Military targets and just destroy everything uh that is is a crime and certainly we see that in mariopal on the other hand uh mariopal is still under the control of Russian Authority so actually proving it not impossible is more challenging on the other hand uh what we've seen with the attack on civilian energy infrastructure that began in an enormous way since October 10th and seems so clearly focused on freezing and starving the people of Ukraine uh and terrorizing them into submission uh and uh has been so widespread and so massive that one one could infer intent to attack and intimidate civilians but international law does give one also this it's challenging to use this idea of proportionality and the effects even though it can be said the civilian military or energy infrastructure can be hit as a military Target and can be as something that benefits the armies in the field and and the research supply of those armies the benefit of this attack on civilian infrastructure was so minimal uh in terms of what was happening in bakumu to what was happening here so on or other places where the war is actually being formed on one side and so massive in terms of its effect and threat against the civilian population that it was disproportionate and as such uh uh is is is a war crime that has not been success in the past on that kind of proportionality analysis but this is one where I think the case is very strong and if we were to see out of the iccs has been reported that there may be applications in front of the pre-trial chamber if we see charges against Putin in the near future I would think it would be on on that basis um let me go on just to mention crimes against humanity for a moment and of course as as Elizabeth said he's a part of organizational plan or policy certainly if you were attacking civilian infrastructure on a massive way in order to starve and freeze uh the civilian population that would be a plan that would be sufficiently widespread or systematic and be part of an attack on the civilian population and of course include uh extermination as part of his of his intention uh that could be a crime against humanity as as well and uh and so could be charged as such and significantly the United States in a statement by vice president Pamela Harris at the Munich security conference um last month you know made the Declaration from the state department that the United States has found based upon evidence that Russian forces are committing uh crimes against humanity let me deal now with the genocide and and uh this crime that many call the crime at times and it's a crime that I successfully prosecuted at the Rwanda tribunal and understand the Rwanda Tribune almost stands alone in being successful in achieving uh genocide convictions the exception was the Yugoslavia tribunal that succeeded with the with the mass killing of Muslim men and boys that Trevor nietzsa the murder of 8 000 in July of 1995. but all of its efforts to uh to deal with what was so clearly uh Crimes by bosnians served forces with a supportive Serb authorities to destroy uh or to wipe out or to displace uh the uh Bosnian Muslim and sometimes the Bosnian Co-op population the courts would not find that that was sufficiently genocidal that killing some people in order to get others to move isn't is isn't genocide and so and of course we've had litigation uh still pending in the international court of justice on on the case of of Myanmar where actions by the the authorities Myanmar is particularly the military against and killing maybe 10 000 civilians and driving 800 000 over the border into squalic camps and there wasn't even a certain expectation that they would even have camps to go to uh in particularly uh August and September of 2017 is allegedly a genocide that case is before the ICC not on genocide but because of forced deportation into uh uh into Bangladesh's uh um as a crime against humanity but it is challenging to prove genocide and and of course that's in large part because of Raphael lemkin did not fully succeed in his vision uh uh for a genocide convention and he'd seen genocide as being committed in three different ways physical destruction of the kind that we had in the in the Holocaust and in the Rwanda context uh 100 000 tootsies murdered because they were tootsies in Rwanda 70 of the population of tootsies in 100 days and 94 the crime that I dealt with which is so clearly based upon the destruction the physical murder of that group though it also included rape and other horrible things done to people uh that didn't involve death and one doesn't have to prove uh Dash in order to uh or murder in order to have physical destruction acts of rape that just can destroy the community as as well over time and and that as a serious injury can also be part of the actus race of of of of of genocide um I it also includes biological destruction as actus Reyes which include forcible sterilizations uh and uh limitations of birth by a group and obviously that might be done in a way in which nobody was killed but over the course of a couple Generations could effectively wipe out a group biologically and of course that's what's been alleged in xinjiang in Northwest China against the Muslim population there particularly the uyghurs and efforts to control their births and and to some extent to uh trans force people into marriages outside their their ethnicity and religion and creating a situation where indeed if this is carry forth over two generations that group could cease to exist it's a biological destruction the idea of cultural destruction attempt by an occupying power for instance to wipe out an identity wipe out a religion rustify everyone for instance uh or or uh uh germanized the population or whatever and Poland having them partitioned and in the past experienced conduct like this against the Polish nation that uh um you know in which potentially people would not die but they would force to become something else for us to speak a different language for us to follow different Customs for us to go to a different church or not to go into a church at all uh that that's another way in which you destroy a people and uh and that uh that particular effort was not successful in in the in the negotiations in New York that preceded the genocide uh the the promulgation of the genocide convention on December 9th 1948 and it being sent forth for ratifications around the world uh one interesting uh aspect of this and I owe it to my friend akivan the um the Canadian lawyer who was speaking in leviv nine days ago uh he discussed something about the history and uh and and one success that happened they did in a way uh really has to be looked at as perhaps something that really does open the door to cultural genocide and that was when the when the treaty was almost completed they had eliminated uh cultural genocide and they had eliminated a proposed section on transfer of children uh from the one group to another uh and in fact it was the Greek delegation that had just experienced the Greek Civil War which is the war and it largely fought on ideological basis uh communist group that attempted to take control of Greece It Was Defeated and generally withdrew into Bulgaria and elsewhere and and Greek children were in fact kidnapped and taken into Bulgaria and and into the Balkans and and raised there and the Greeks insisted uh that this provision be included in the genocide convention and so we now have that in the convention and of course uh in what the Russians have done as you know obviously the prosecutor General said we've had to transfer of some 16 000 children we've had the Russians acknowledge it praise the work of the woman who's heading on Maria lavova belova we've had uh Putin himself uh issue a decree which facilitated uh adoptions of of these children into into into Russian families uh you know in the in the west Canada at the U.S and elsewhere in Australia there's been a recognition that things like residential schools where children are torn away because their culture is not approved of in in say the indigenous reservations areas and taken to residential schools even with so-called good intent has led the Canadians to view that as genocide of course those children were allowed to go home in the end these children in fact will have been separated permanently and and gained uh new new families and so there's no question that what the Russians are alleged to have done I mean the prosecutor General said 16 thousand a Yale Report with data up until six months ago says six thousand and certainly we have a number of individual cases and Witnesses and some 307 that managed to to get out uh uh we know a fair amount about this crime uh this certainly is a war crime uh it is a war crime in the sense that that it is never legal I mean the Russian can say oh we wanted to get them out of the war zone the Geneva conventions and its additional protocol including one additional protocol one that the Russian sign said Thou shalt not move children from an occupied area to that to to the warring party's uh State even for reasons of security you can do it for reasons of Health temporarily but then only with the permission or attempt to gain consent of of the family and the ICC statute said an unlawful deportation is a crime and and it was the Geneva Convention makes it unlawful and the uh and the Rome statute makes it a crime it's pretty solid War crop that's one I think that we'll see charges on very very soon it's also a crime against Humanity's enforceable deportation is it is it a genocidal act yes it is the question is is it part of genocide and of course there's two aspects of every crime one is the as the physical element the actus Reyes so-called the other is the intent element and did the Russians intend invite to do this by doing this uh to destroy the Ukrainian nationality in whole or significant part and and obviously you can say well sixteen thousand even uh given 40 million ukrainians may not be viewed as sufficiently significant uh but on the other hand we haven't sharpeniza genocide with 8 000 killed in a particular area so it is it is is something that's close to the threshold now I don't want to uh there's also indication of of other acts uh that are being done uh and other propaganda for instance uh the ukrainians actually have an open and Absentia case against propagandists that have essentially put out all this loud Ukrainian uh you know anti-ukraine Nation doesn't you know we've heard some of it from Putin but some of this is is really outrageous and you know the only good Ukrainian is the Dead one almost in terms of some of these propagandists and uh and there's certainly the chance that we have uh even if we don't have genocide we may have incitement to genocide because you don't actually have to prove a genocide was committed you only have to prove that there was an intent and you were in a situation where where there was widespread violence and threat Etc and the real potential of the genocide and of course that's the conviction that my team won at the reward tribunal against against rtlm radio we didn't have to prove that it caused the Genesis I think they did in a lot of places we just had to prove that there was an intent through those broadcasts to do it and we were able to look at the effects and everything else and and all of the uh the context the broadcast in order to prove that intent um I will finally just say something about the the crime of aggression and I I the ICC can't do it uh specifically the ICC statute and said it does not apply to the Nationals of countries that have not ratified the Rome statues and the and the aggression amendments to prosecute it would take a special tribunal I'm one who believes that it would be possible for the U.N General Assembly to authorize the Secretary General of the U.N to negotiate with Ukraine the establishment of an international tribunal and to a large extent that was done with Sierra Leone the court where I was a prosecutor admittedly the recommendation there came from the security Council but it wasn't a chapter 7 resolution it was uh it was a recommendation and the general assembly can similarly make the recommendation and did in the case of the establishment of the Premier Rouge Cambodia Tribune so this precedent for that and if that Court was then established on that wide basis by a vote uh using uh uh so-called uniting for peace principle uh and precedent which have been used so far in these resolutions that have passed by votes of around 141 to five or six or seven uh by the general assembly if we had a vote that was at least two-thirds of those voting yes versus those voting no that could be the basis upon which one would establish a court of course uh it would be a leadership crime you'd only be charging leadership of Russia potentially also leadership of Belarus whose territory has been used to facilitate uh the The Invasion and of course with all of these situations it'll be difficult to get the perpetrators into custody why is it important to do that I think we only have to think back to 24 February last year and what really outraged the world we've had horrible things happen in a lot of places during the post-world War II period but outraged the world was here as a people um going about their business going to work going to school slowly but surely developing into it into a functioning democracy and because that democracy was a threatened to Putin not NATO not military force not an attack uh suddenly death starts raining from sky and and the whole nation is then called into the defense of Hearth and Home uh and and all sorts of people uh has seen their property and their lives destroyed uh war crimes are about you know crimes against generally against civilians or people that have surrendered civil uh you know crimes against humanity are all about civilians um but you know and and genocide destroying a civilian population but one of one of the young men called the France the bleeding and die they wouldn't be at the front they'd be in school maybe at work were it not for this crime one of the the homes the dreams the businesses everything else in this country all of that destruction why because of Putin's decision and all of those results all of that disruption all of that death is because of the crime of aggression some of it because of the war crimes some of its crimes against humanity but all of its aggression and so the need to reinforce that Norm um you know there have been other situations in the world that maybe there should have been a prosecution for aggression on uh but you know what we have here is something like we had in on the Polish border September 1st 1939 and uh if and that resulted in the conviction of of the Russian leadership at at excuse me the conviction with Russian cooperation and participation and with the participation of the allies and the war the so-called United Nations at that time which included Poland uh uh to try those individuals uh for that crime against peace the crime of aggression of the Nazi leadership and uh and this is the same kind of thing and if we don't enforce the norm in this situation whenever else would we do it so I I think that's the reason to take that step but we'll see the challenge I think the Ukraine faces that was it's evident uh that the that there's you know willingness in the general assemblies to denounce the Russian aggression the willingness of country is particularly from the global South but have maintained their neutrality at this stage to support a resolution in this case the sort of argument that there's other situations like Britain and and uh and in America in Iraq in 2003 that should have been prosecuted and this is double standards there's a lot of arguments on why this may not get the support that's needed and and I'm one who thinks it really needs to be done on a global basis in order to uh to not have problems with out of state immunity but uh but in any case that's that's something that people will talk about a great deal and we'll see if it happens but meanwhile we do have the prospect of cases being built at the ICC against very senior leaders of Russia and we have continued efforts at the Ukrainian level and in third countries to prosecute to other perpetrators for the involvement in in in the in the three international crimes of war crimes crimes against humanity and genocide so thank you very much I'm sorry I've gone on as long as I've had but I wanted to to cover uh to cover what's happening over a front of 2 000 kilometers over the last uh like a year and uh and underlie the importance of achieving accountability for it because impunity does breed impunity and if these crimes are not punished we can only look forward to them being committed in other places of the world and to none of us uh being safe in our homes uh in our communities in the future so thank you very much thank you Mr Ambassador for this amazing visceral and informed presentation um we will now open uh allow the audience and our speakers to to ask question of Mr Ambassador and allow me to ask the first question actually Mr Ambassador what do you think should United States pursue special tribunal like there was some talk about it and there are several Scholars from Georgetown and many others who are you know advocating for creating the special trade you know do we still need it in light of the European initiative of creating this special Tribunal for the crime of adoration or or do you feel that we should still proceed with this special tribunals by United States you know right now I mean I uh obviously I think the United States should join with Europe and with other countries there is now a core group that's supporting the creation of of a tribunal the only Global South Country in today's interestingly is Guatemala and uh but generally it's going to be necessary to build more countries into this sort of core group and the importance of that is to get a vote at the general assembly now it is possible for Europe to proceed through the European Union of course the European Union following the rule of a you know no of unanimity and and there may be uh uh countries of the of the 20 uh 27 that don't support it but uh there's also the possibility of establishing under the auspices of the Council of Europe which of course is a much broader constellation of countries um you know including even Turkey um you know from uh and including Russia until last September and so that that also could be an alternative but on the other hand a more narrowly based Court raises the question of well what's to keep the Russians from establishing court with Belarus and Iran and Cuba and Syria Etc and China and creating phony trials against or something I mean obviously there would be any legitimacy to that but but you want to do it on the broadest basis possible now I you know I I think the United States in leviv uh um my my successor as Ambassador at large but from Scott was present and she read out a statement which was uh favorable to the concept but still raised questions about uh the U.S uh position and where the U.S will land on this uh I I I tend to think eventually on the right side um you know you have countries like Britain that weren't very strong for it initially and now become e-members of the of the core group and so I think that that number will uh will build um it might be from a political standpoint that if the if the ICC proceeds with high-level cases against Putin on war crimes uh many will say I remember the Germans when they weren't supporting this in in March saying to me this is in May from the legal advisor he said well why do we need it the ice CC can get to the to get to the war crimes charge some of the same people shouldn't we put all our eggs in one basket certainly that's been the pitch of a prosecutor and so and and in America we prosecuted out the phone for for uh you know tax evasion not not mass killings uh and we got him you know Etc so I uh who needs to get the crime exactly so there's that kind of argument I don't know uh we we shall see uh on the other hand International structures and edifice and it's built through these successful cases and if you don't enforce the no one here when will you ever do it so I think there's a there's a reason to to do it uh I understand it doesn't have to be a big Court the case isn't very complicated I sat in a people's tribunal last week or two weeks ago in The Hague with a South African and Indian judge in which we heard a prosecution team present 16 Witnesses 12 live Witnesses from Ukraine experts like General Wesley Clark and others and and confirmed an indictment uh uh it's not as complicated as the war crimes uh issue um and of course it may not need judges for quite a while because we challenge in getting these leaders in custody so um but uh I think it's worth doing um uh but it at the moment really lies uh in the question of whether countries in the global South who view the world as having taken too much attention to Ukraine and not enough to them I get on board because their own sovereignty their own borders and uh are important to them and and they can see the principle here and this establishing a precedent that could benefit them in the future thank you Mr Ambassador if any other speakers would like to ask a question so please submute yourself and do so if not um then um you know you'll have a translator on but if not let us proceed with the presentations then thank you again Mr Ambassador we truly honor you for everything you have done for Humanity I'm speaking from my heart um now let me introduce to you the order of the presentations we will now move a little bit to lemkin we will have Professor with Salah who will talk about lemkin and his polish chapter after their after that Professor Dirk Moses will talk about access rules seminal book by Lumpkin and then we will move to um professor of doliak who will deal with cultural genocide and after that we will move to prosecutors who Professor prosecutor Thomas heinies who will tell us what are the Lessons Learned for the special tribunals and Nick Europe Ukrainian attorney who will tell us the Ukrainian perspective so with that let me introduce to you professor agnies she is a full professor of political science at the Warsaw University she was the vice director of the academic research and international cooperation at The Institute of international relationship at the University of Warsaw chair of the prevention of human Mass rights human rights violations by funded by the National Science Center among others she was the holder of the yamkowski Educational Foundation scholarship at the Georgetown leadership seminar in 2016 and the Florissant go ahead and mute yourself please and you can share your slides thank you very much I have prepared the presentation thank you very much for having me it's a huge privilege for me to participate in this panel and it's also a privilege for me to speak about Rafael lemkin because he is really my personal hero he inspired me a lot when I'm thinking about my my research and my life um and I'm not going uh to talk too much about his concept of genocide because I know that my colleagues will do it even better um but what is important to know that Rafael lemkin he was completely forgotten in Poland in communist Poland polish science was in a kind of isolation and the Soviet Union communist authorities in Poland didn't appreciate the concept of genocide and and his achievements so um I personally discovered that from Lampkin during my study time when I was I became interested in genocide questions and I was shocked that nobody so far had told me about his life as his and his achievements he was born in a Polish Jewish Family it was quite assimilated family three languages were spoken they're Polish Russian and Jewish and it was the time when Poland was under the partition so he was born on the territory um of let's say a Russian Empire um and Poland we gained independence in 1918. what was interesting that um his his family it was a farmer of the family of farmers um and um on the territory like nearby volkovisk and there was a very like Rich it was Multicultural territory inhabited by by different ethnic religious groups so for sure it influenced influenced Rafael lemkin when we talk about his education and the most important for him was his study time in leaf he studied law at the faculty of Law and political science it was University at that time and he obtained also a PhD um in in law it is important to know that at that time at the University it was like the best faculty of law a lot of renowned Scholars lawyers um provided the the courses and especially he participated in Professor Julius makare which seminars he was a renowned expert in criminal law um and probably you know uh stanislav rapper part louder also contributed a lot the concept of crimes against humanity but also the concept of human rights during the second world war and after and after that um then he moved from uh from um leave to Warsaw and now let me tell you viewers about his Inspirations why Rafael lemkin decided to to deal with the question of mass killings in his autobiography he he writes about the famous book for vadis who which was kind of which is a masterpiece of the Polish literature by henrikshankevich and it was and his mother and he was at the age of 11 his mother read him about suffering of Christians in Roman Empire and as Rafael Lampkin started asking questions why nobody helped Christians at the time where was the police what was the law and she said I don't have the answer for you you have to think more you have to find an answer then of course when he was a child um and they were a wave of programs of Jews around volkovisk so he of course was aware of anti-Semitism and it had to um had an impact on him and then the question of Armenian Genocide when he was a student who was the famous discussion which he wrote about it in in his autobiography he started asking questions uh why International Community didn't react to Armenian Genocide to Armenian massacres and he's a professor answered you know when there is a farmer and he has some kitchens one day he decides to kill those kitchens and other Farmers don't interfere so it perfectly showed what was the perception of the question of sovereignty in the world was shocked and he just answered you know people uh were not chickens so um you know it was something but inspired him uh in in the future when he was in Warsaw um he was very successful he he also studied uh participated in different projects translation project Etc when we talk about Criminal Law Courts of totalitarian state especially fascist Italy and the Soviet Union so it was something natural for him that he somehow decided to devote his life to criminal law in Warsaw he was a lawyer a urist prosecutor advocating the end a lecturer and he very often presented Poland in numerous International conferences so it was important that he knew really like the best polish lawyers but also he was like recognized he had this chance to to meet International lawyers and because at that time mass killings were not forbidden in international law he proposed he prepared the paper for the conference in Madrid with the proposal to Outlaw barbarism and vandalism Barber is more or less he understood as genocide and vandalism as a destruction of the property some Goods but to be honest he was not and understood and finally he decided to start his private practice in Universal um and then the war broke out so uh in September 1939 when Poland was attacked by by Germany he decided to to leave Poland at the very beginning he he wanted to participate the fighters but his train was bombed then he moved to to volkovic to his family and because he was aware of Nazi ideology and he expected future massacres he asked his family to escape with him um but nobody believed he meant his parents didn't believe him so alone he decided to go to to Vilnius to tourika to Stockholm and he was he was very smart he spoke like between 7 11 languages and in in Sweden after three months he started providing collectors in Swedish um and at the same time he asked the government of Sweden to help him to gather materials about German law and practice in occupied Europe so when he moved to the United States he was enrolled to Duke to University he was he was able to provide lectures about comparative flow and Roman law but at the same time he he had a lot of materials about German occupation and it was possible for him to write this breakthrough book access through in occupied Europe which was published in November 1944 and for the first time he used this word genocide and his concept at genocide which he provided in his famous chapter number nine then of course he was to be honest this concept was by some by some lawyers criticized by by some lawyers like accepted he started to provide lectures about about the concept to write articles and finally he he was able to become an advisor to the U.S Administration and especially to judge Robert Jackson which um and and he was able to observe also criminal criminal procedures in in Nuremberg but when he uh was in Europe he traveled to Europe in 1945 1946 he not only observed trials at the Nuremberg tribunal but also he convinced himself that Europe completely was changed in terms of ethnicity um in terms of ethnic structure and he was he was shocked and depressed because he found out that around 49 members of his family was killed also his parents he he met some survivors in in some camps and he was just you know depressed he was disappointing disappointed with Nuremberg processes because the crime of genocide was not included in final judgments and also crime against humanity was was like covered only the concept covered only the time of work and lemkin was a word that also before before huge crimes were committed of course so so he was repeatedly hospitalized because of the hurt and because of the pressure blood pressure but one day when he was in the hospital he could hear on the radio that in New York it would be the first session of the UN General Assembly and so he decided to check him out from the hospital and to go to to New York and he started his Crusade um as he called that to for for the genocide so um several steps were important of course the resolution 1946 um the general assembly called for genocide to to be recognized in a national national law in the Universal jurisdiction then he proposed um he was one the most important Alpha behind the the draft of the convention on the prevention and Punishment of the crime of genocide which was adopted in December 1948 but for him it was not the end of his efforts he wanted to to see that the convention entered into Force he needed 20 ratifications and he devoted everything to achieve that he was personally involved he like every day I met one day in Jerusalem met a woman who was a journalist in New York at the time and she she said that every day she could see rafam lemkin waiting at the door you know trying to talk with diplomats about ratification about his concept of genocide and ratification of the convention he used to write personal letters to to diplomats representatives of governments with this request to ratify the convention so finally when the convention entered into Force he said that it was like the best day in his life he was thinking about his mother at that time and she sacrificed a lot um like his health his job and then he lived in a very modest conditions and then he died in 1959 in New York um not so many people participated his um sorry his funeral uh so what is lemke's Legacy just to summarize his achievements and his life like in my opinion of course he contributed a lot to international law he coined this world genocide the whole concept he proposed the concept he he wrote the draft of the convention he also is a great example of personal activism uh his great example for um he used to to to say about himself that he was an official man so he showed how to do how to push some ideas he um was like a very sensitive person with he was able somehow to link to put link between morality and international life and international law he contributed a lot to changing of our understanding of sovereignty which today we also um understanding when we talk about responsibility to protect concept and he he a great respect for lawful institutions in his book he proposed to establish international criminal court he proposed to um to have efforts to prevent future future crimes and what is also important that his concept was Universal so he didn't refer only to Holocaust but he was also the first who who said that holodomor in Ukraine that it was a genocide he was interested in colonial Powers crime saying that that there were these genocidal factors as well so um for sure he contributed a lot to international law and our understanding of um crimes and our action in the context of life so crimes so I hope that also I'm taking into account the situation in Ukraine that somehow we will be inspired and we will use this opportunity to to to fight with impunity thank you very much thank you agnesco for this amazing presentation you have brought link into life like we can feel we have we know the person too which is a you know very important not just his legal Legacy so I'm gonna hold the questions till the end of all the presentations if I may we have several questions already and I will introduce to you Professor Moses now he's Ann and Bernard speaker professor of political science at CUNY College of Law and he was raised in Brisbane in Australia attended University of Queensland but his PhD is from Museum Berkeley California in 2000. um he had many faculty positions including this English professor and Global human rights in the University of North Carolina Chapel Hill and several others and his first books on the German intellectuals and the Nazis was averted historical book of the year prize he has written many other books since his most recent ones in the problem of genocide permanent security and the language of transgression which came out in 2021 he's on the Journal of many genocide studies and genocide research and a specialist of the of the whole area of the genocide law so Professor Moses in the floor is yours foreign thank you very much for the invitation for the generous introduction it's an honor to be here I hation to add that unlike some of the other participants I'm not an international lawyer although I did study law in Australia for a few years uh I'm really an intellectual historian and someone who works in the political history of ideas and I now teach international relations in at the City College of New York I am the senior editor of the Journal of genocide research and there I uh with one of the other editors moldovan colleague and historian of the Holocaust Diana dimitro have initiated a forum on the uh the Russian invasion of Ukraine um so if you look at the website of the journal you'll see a number of these uh contributions and and several more by Ukrainian Scholars uh will be published in the next few months including one by the case of the kidnapped Ukrainian children which was mentioned by the Ambassador and another by Katarina busal on extent of sexual violence by Russian forces in the occupied territories so that just by way of um an update on what what we're doing what I'm trying to do as a scholar who's not an expert on East Central Europe but has a position where I can you know try to platform and disseminate uh the work of Scholars who work on that region from that region on this terrible topic now uh I've cut my presentation short uh because the Ambassador the ambassadors were so present so comprehensive and there's no point in repeating it but I hopefully have a few things of interest to say now on April 12 last year President Biden the U.S president joined the Ukrainian president zielinski in accusing Russian President Putin of committing genocide in Ukraine and an increasing number of academics have engaged in a heated debate about the applicability of the concept in a faithful historical coincidence Ukraine is a cradle of genocide as many of us know and many of us just heard now then in Poland in the 1920s and his family was murdered in the Holocaust he later wrote a text about the genocide famine inflicted on Ukraine by the Soviet authorities in the early 30s but a lot of more and he hoped that the new U.N convention on genocide passed in 1948 would ensure that such crimes would not recur but of course Mass violence against civilians has occurred ever since in degenerate forms of warfare that have killed millions of civilians whether in the U.S campaigns in Korea and Vietnam in the 50s and 60s the colonial French war in Algeria in the 50s the Nigeria Biafra Civil War in the late 60s the Russian destruction of grozny and chechnya in the mid-90s and its backing of the Syrian destruction of rebel-held cities more recently genocide has been alleged in many of these cases but unsuccessfully now I'm not surprised by the inability to successfully apply genocide to these situations while I agree about Prosecuting Putin for the crime of aggression the problem is not misunderstanding lemkin and his concept as many think but the Fatal clause in the U.N genocide convention and the character of post-war memory culture for it was lemkin who made the Holocaust the archetype of genocide which he then called the crime of crimes indeed the most heinous of all crimes thereby establishing a hierarchy of criminality with the Holocaust as its archetype genocide rather than the Nuremberg triumvirate of crimes against peace crimes against humanity of war crimes became the gold standard of recognition for victim groups since the late 1940s contrary to those who think genocide was forgotten unto uh from then until the two ad hoc criminal tribunals in the 1990s genocide was alleged consistently in anti-colonial and postcolonial conflicts in the intervening decades such as the Nigeria Biafra War which I mentioned and also the secession of East Pakistan from from Pakistan to form Bangladesh in 1971. if you go back and look at the record no it's no accident that these crises were not recognized as genocide and were quickly forgotten the states that thrashed out the U.N genocide convention in 1947 and 1948 designed it so it could so that state sovereignty would not be compromised in waging International and non-international armed conflicts how did they do this well there are two aspects one the U.N convention states that genocide means quote the intent to destroying holder in part a national racial ethnic or religious group as such me and the by various means now the as such requires that victims are targeted solely on the grounds of their identity for symbolic symbolic rather than material reasons although I'd say Warfare the states negotiating the conventions definition in 1947 and 1948 deliberately modeled it on the Holocaust which was understood as history's largest hate crime to distinguish it from Warfare and even from population expulsions these states of course did not rely did not regard Warfare is it legitimate they had just defeated the Axis powers they destroyed their cities with fire and atomic bombs and they countless the force population expulsion of about 12 million ethnic Germans from East Central Europe the Cold War was beginning and Independence movements confronted the Western Colonial Powers who were researching control in Asia and Northern Africa above all the French Empire but also the British one the Dutch as well for a while in the East Indies for the wars of Victors The Sovereign Rite of states to engage in international non-international armed conflict required the rescue of military necessity from its discrediting by the Nazi mode of exterminatory warfare and occupation everyone understood that unconflict affected civilians dramatically the official Committee of experts commentary on the draft convention which was written in part by Lemke they acknowledged that civilian populations were affected by Modern Warfare with quote more or less severe losses unquote so it distinguished between armed conflict and genocide by arguing that in the latter in genocide quote one of the belligerent's aims at Exterminating the population of enemy territory and systematically destroys what are not genuinely military objectives unquote military objectives by contrast aim at imposing the Victor's will on the loser whose existence was not imperiled killing masses of civilians was acceptable if regrettable when motivated by military goals Victory and not destruction as J.L really he was a professor of international law at the University of Edinburgh observed of the convention in 1949 so very soon after its passed the intended destruction of the listed groups as such had what he called a limiting effect the qualification meant excluding and I quote him many probably most of the most famous massacres and persecutions of History because in historical reality he continued the perpetrator motives quote have been more obscure than the Nazis and more mixed to qualify as genocide the victim population would need to be targeted quote because they were Jews or Slavs or members of some particular group of human beings whose elimination had been resolved on unquote unquote not enemies in a war or Rebels against the government accordingly he continued putting a whole enemy population men women and children to the sword would not necessarily mean genocide so the convention he concluded pessimistically promised more than it delivered nothing important had happened at all he said with the passing of the convention now this view is prevailed among the states negotiating the genocide convention and as a consequent the wars waged ever since including by permanent members of the U.N security Council like Russia now in which millions of civilians have died cannot legally be categorized as genocide efforts to pin the genocide label on States engaged in destructive armed conflict have largely failed whether in the U.S for its war in Vietnam work killed millions of civilians with armed with bombing and so forth or the Nigerian state for its deadly blockade of a secessionist province in a civil war at the time in which Millions starve to death that two the second aspect Wars against nationality or national identity are not legally genocide Russian declarations to destroy Ukrainian statehood and identity while shocking are unlikely to count as genocidal intent in a court because they can be paired with other statements by Russian leaders about Russia rescuing ukrainians from its criminal allegedly criminal fascist leadership what is more the convention talks about the destruction of Nations not nationality and it conceives of Nations as biological entities and the Ambassador talked a bit about that as well as the Ambassador reminded us cultural genocide was removed from the draft convention the argument that genocide is the destruction of nationality as opposed to the extended extermination of national groups reflects Lincoln's original definition of genocide outlined in his book access Rule and occupied Europe about which we just heard this definition is much broader than the UN one and that's commonly known taking an expansive view of Destruction and Nation at the time Nations had Souls if you look at what how people were writing you know the Polish Spirit the Jewish Spirit the Czech spirit uh which uh well at least in Australia we don't talk like that about Nations but I know it's maybe set different in Central Europe anyway meaning that these souls or Spirits could be destroyed by assimilation policies like Banning the use of language after the Nazi invasion of Czechoslovakia in Poland in the late 30s their governments in Exile issued reports on the German occupation detailing the policies they said were destroying their Nations ranging from changes in citizenship laws to mass murder such policies were quote part of one long chain of physical and moral violence directed towards the destruction of the Polish Nation as one polish report put it in 1940. nationality was under attack it said now this broad approach which lemkin adopted from these polish government and Exile reports joins the Polish experience of the Nazi occupation which involved deportations and the destruction of Elites and culture under Nazi occupation with the experience of European Jews who were slated for Total Physical extermination I think he wanted what he called a generic notion of genocide so that the ignored plight of Jews ignored at the time mind you would be noticed by Christian Europe and Christian America where he was living he was living in North Carolina throughout the time if you go back and look at the record westerners largely understood the Nazi Empire as an attack on Christian Europe and Christian values with Jews are sort of part of it but not the central element so it's very different from today so to get the Christians to notice about the destruction of the Jews he reasoned it was necessary to unite their experiences now in this book that I've written that was mentioned briefly by Elizabeth I argue that this was actually quite an incoherent amalgam but it was done for political reasons and uh quite successful but has left us somewhat ambivalent Legacy so anyway Lumpkin argued that in the Hague Convention of 1907 which was the international treaty governing the occupation of Concord territories and populations um that it should be augmented it should be changed so that and I quote him every action infringing upon the life liberty Health Corporal existence economic existence and the honite of the inhabitants when committed because they belonged to a National Religious or racial group and in the second every policy aiming at the destruction or aggrandizement of one such group to the Prejudice or gentleman of another should be criminalized now he sometimes wrote that genocide related to this also meant the crippling of Nations now this definition of genocide reflects the lived experience of mixed populations of ukrainians poles and Jews living serially under Russian polish German and Soviet rule in the territory of modern Ukraine during the 20th century enduring multiple phases of genocide and ethnic cleansing since the first World War it's here unsurprisingly that consciousness of nationality and its fragility was and remains intensely experienced Russia's campaign against Ukraine is precisely in a way what lemkin was trying to capture with his new word but states did not follow lemkin's broad definition in the UN genocide Convention as we know instead the acts associated with genocide were distributed to other International crimes like war crimes and crimes in humanity the latter cover Russian conduct in Ukraine and these I take from the ICC statutory murder and potentially extermination forcible transfer and other inhumane acts the discriminatory intent based on nationality is captured in the separate crime of persecution like genocide it requires a specific intent as well the crime of persecution is where we find lemkin's broader definition the international committee Commission of inquiry on Dart foreign 2005 for example categorized Sudanese crimes in this way instead of using the word the concept of genocide from the perspective of the UN and the ICC these are no lesser crimes in genocide that's important to emphasize but International public opinion prioritizes genocide and that's why some people like the White House National Security adviser Jake Sullivan said that the Russian campaign has not yet rise to the level of genocide it's this idea of rising and this means unfortunately that conflict-related sexual violence which has been rampant in the separatist provinces in eastern Ukraine since 2014 is somehow less great if not perpetrated with the intent to destroy ukrainians this regrettable blindness to civilian destruction and suffering is one of the problems of genocide I identify in that book President Biden acknowledged that lawyers will ultimately determine the issue whatever the calculations behind is genocide accusation I mean his government's announcement to provide heavy weapons to Ukraine coincided neatly with this accusation was on the same day Russia's outrageous assault on the Ukrainian nation and people is plain to see and yet the U.N genocide convention signatories Define genocide narrowly so that lawyers would find it most difficult to determine that Russia's mode of warfare is genocidal and while genocide monopolizes people's moral imagination as the crime of crimes military assaults on civilian populations whether in the Tigre region of Ethiopia in South Sudan where two-thirds of the population require humanitarian Assistance or in Yemen they continue without really shocking the conscience of mankind quite as much as Russia's war on Ukraine and ukrainians accordingly my view is that it's time to rethink the obsession uh with linking that reaction this being shocked um solely to genocide and to reimagine a threshold of shocking criminality that does not require analogies with Nazi Germany in the Holocaust thank you thank you Jack that was really enlightening thank you very much um let me go to our next speaker introduce to you Professor Anna Philippa doliak Professor doliak is a UNESCO chair in international and cultural heritage at the University of Technology Sydney she was Associated of research there and she also was a visiting professor and then I mean School of Law in Beijing in China she's president of several societies including International cultural property society and international journal or cultural property she has been fellow of many procedures scholarships among them I should mention Marie Curie fellow because marikirista was after all famous for You Scientist and she was a visiting scholar at the larger Center for international law University of Cambridge and New York University she not only holds the doctor of Philosophy of Law from the University of Sydney but she is admitted Barrister and solicitor before many course and our different is yours thank you very much Elizabeth and thank you to the Millennium lower society and the kushikeshko foundation for your kind invitation to participate in the support and timely event concerning accountability and reparations for atrocities committed on Ukrainian territory since 2013. Ambassador Rapp and honored fellow panelists and participants my brief and modest contribution this evening will be in respected the way that limpkin understood and Define genocide particularly the cultural manifestations of the crime and what does this mean for the role of prevention in the context of the genocide convention it is my contention that they are intrinsically linked for lampkin's earliest formulations of genocide before he conceived of the term and when he was working on its precursor During the interwar period he had two crimes which occupied him which he saw is deeply entwined for they targeted individuals and groups because of their Collective identity so the first was barbarity and he divided us who whosoever out of hatred towards a racial religious or social collectivity or with a view to the extermination thereof undertakes a punishable action against the life bodily integrity and Liberty dignity and economic existence of a person belonging to the collectivity whereas vandalism was that whosoever either out of hatred towards that racial group religious group or social collectivity or with the view to extermination thereof destroys its cultural or artistic Works will be liable for the crime of vandalism these twin crimes would be reformulated into one during the 1940s with the drafting of the genocide convention immediately after Nuremberg and the adoption of the general assembly resolution on the crime of genocide in 1946 lemkin wrote well culture is only as strong and as vital as the spiritual forces which are brought to it by variously various contributing peoples if these peoples are annihilated their cultural heritage is also destroyed the destruction of a people by genocide results in an immediate and irretrievable loss to all culture and the preamble to the Rome statute has a sentiment very close to that the drafting committee for the convention of which lemkin was a member in 1947 included it as part of its definition destroying the characteristics of the group which included which is what Professor sorry Ambassador rep referred to as the cultural elements of it forced removal of children to another group forced and systematic Exile of individuals representing the culture of the group prohibition of the use of national language even in private systematic destruction of groups in the national language of the all prohibition of publication new ones and systematic destruction of religious or historic monuments or they're diverged into alien uses destruction and dispersal of documents and objects of historic artistic or religious value and of objects used in religious services we know that Lincoln was unsuccessful in having this definition replicated wholesale into the final text of the genocide convention instead the only component that remains in Article 2 is the first is the first the removal of children to another National Group despite various opportunities and attempts in the intervening years for the International Community through diplomatic conferences or for the international courts including the icty through to International court of justice have resisted the expansion of the definition contained in article 2. they have repeatedly reaffirmed that these acts may be evidence of specific intent but they cannot in and of themselves constitute acts of genocide Ukrainian colleagues in the culture sector and lawyers have worked tirelessly including whether they are panelists since 2014 to document many acts perpetrated by Russian agents on Ukrainian territory which go to most of the points on the list enumerated in 1947. we now have reports overnight that the ICC in its current investigations on the situation Ukraine since 2013 is considering indictments concerning the removal of Ukrainian children to Russia final remnant of what lemkin had conceived as the cultural manifestation of genocidal Acts I hope that the work done by Ukrainian colleagues on the ground concerning the other examples of the deliberate targeting for destruction or forced assimilation of Ukrainian culture will be used in these prosecutions this would no doubt reinforce the cases to be made but also provide a richer and wider picture of genocide that Lincoln was seeking to promote decades ago to end my intervention I would like to stress why this broader understanding of what is being perpetrated in Ukraine should be litigating the prosecutions before the court the inclusion of cultural elements or components in the definition was resisted by States during the drafting of the convention for they feared that it was too wide a definition for such a heinous crime this is what Professor Moses were referring to and should be reserved for the worst of cases and of course many countries were concerned that their own domestic laws and policies would come under the microscope Lincoln's copious writings made clear that Not only was he consumed with the realization and promotion of codification of the crime of genocide but also to ensure its prevention example he examined example after example drawn from all corners of the globe endeavoring to better understand the defining characteristics of these programs for the elimination of groups the inclusion of the cultural elements in his quest's quest was not accidental but fundamental to ensuring that the International Community was alert to the threat of genocide before it came to the end stages these acts acts the cultural elements served as early warnings drawn from past experience of genocidal programs we have seen this in our own time in various conflicts on various continents should the international Court indictments for the removal of children from Ukraine come to pass and be successfully prosecuted it reinforced this element of the international community's commitment to the prohibition of genocide not only its punishment but help us work with renewed dedication to its profession as well thank you thank you Anna thank you for this perspective it was really fascinating so um let me turn now to Nick you're off he is the senior legal advisor from the truth hands and assistant professor of international law in the National University in kharkif speaking to us from Kiev and unique has been involved with supporting uh legal efforts of Ukraine to resolve the crimes being committed in Ukraine and he has expensive expensive experience in this area he's a member of the Ukraine embar Association which is cos sponsoring this event and um you know his research interests are international humanitarian and international criminal law technology thank you thank you um good evening dear colleagues good evening uh the uh audience it has been a pleasure um to take part in this interesting conversation um I was initially asked to um explain our efforts here on the ground to document war crimes in genocide which we have seen but before that uh I would like to briefly rebut Professor Moses statements uh with with some of which I cannot agree um so Professor Moses did State um and uh most of what what he said today he published on the law fair blog and uh that post did cause a bit of discussion but um I respectfully disagree with the conclusion that the genocide Convention as it is today in its current adopted form does not apply to the events that have been unfolding in Ukraine for the at least past year uh while we understand the limitations of the legal uh language that the current version of the convention has we nevertheless are confident in that it is the precisely destruction in whole or in part of a National Group which is going on in Ukraine right now and if we actually try to define the term National Group we could refer to the jurisprudence of the international criminal children for Rwanda in the prosecutor versus acai acid judgment where the tribunal defined the national group as a collection of people who are perceived to share legal Bond based in common citizenship coupled with reciprocity of Rights and duties at the same time a nation is considered to be more than just a group of people all the same formal nationality it is rather a uh collection of people with a common wish to live together which have a common ideal or a common goal common aspirations and that I these are the words of the special repertoire Mr Dudu theme um so while it is indeed uh hard to compare the concepts of genocide as we saw it in the Holocaust case to the Ukrainian Holocaust I think it is important to understand some of the cultural origins of the whole Russian Ukraine war and I will uh start my presentation with exactly with exactly that the the cultural origins of the Russian invasion of Ukraine and the Russian attack on uh an attempt to erase ukrainians as a separate nation stems back through Russian culture which um I have had the experience to um see firsthand as having been born in Sebastopol a predominantly pro-russian City and having attended a gymnasium named after Alexander Pushkin and since childhood and this is something that I saw from my personal experience which is I now see confirmed through my overall interactions since childhood Russians are taught that ukrainians are the same people as Russians and whoever wants to disagree with that is considered a nazist or Nazi or bandarovitz as the new term for it Ukrainian culture has been denied repeatedly over many years of over actually many centuries as Ukrainian language has been banned back in the Russian Empire and then significantly restricted during the Soviet Union times so uh one of the best analysis in terms of the cultural Dynamics between Russian and Ukrainian histories and cultures are explained in this great analysis by Camille galev which I do recommend to you to read his conclusion is that the war happened because Russia never accepted existence of Ukraine in the first place and Russia not just an entity as a state but the whole people of Russia because this has been a part of an integral part of the culture which has been repeated through many iterations the core argument is that Ukraine is a fake Nation which has been created artificially by the Austrian general staff or by Lenin they actually cannot make up their mind they they claim both arguments um he particularly refers to his analysis which and this is why I bring it up to the poem by one of the prominent Russian poets Brodsky um called on the independence of Ukraine the final verses of which are when you're dying and scratching your deathbed you'll be wheezing Alexander's meaning Pushkin lines and not The Terraces lies meaning Terrace of chenka Brodsky here refers to the two icons of Russian and Ukrainian culture respectfully and he particularly attacks this core figure of the Ukrainian Culture by saying that it is inferior to the Russian culture therefore camillev concludes that cultural uniformity is the real goal of the Zed War and the problem with Ukraine as is embedded deeply in the Russian understanding of Ukrainian of the whole concept of Ukraine nation is that it exists while green according to Russians should not exist and that's why the war was started to raise ukrainians from existence and to kill whoever does not agree to be called himself a Russian now if we uh look at the actual definition the term genocide okay we are having all these forms um evidence from the facts on the ground the we have willfully committed Acts for the purpose of total or partial destruction of a national group of ukrainians which is conducted by extermination of members of the group inflicting bodily injuries creating of Life conditions which are in the total of partial physical destruction aim effort saying that decrease or prevention of childbearing and of course the forcible transfer of children now there have been a lot of reports which directly describe all the factual details and Link them to each of the elements required by the convention including explaining the menstrual and the specific intent given the limited time we have I will not of course go into details uh on each one but I will briefly refer so uh what we started with back in April 2022 if there was a global uh call for Action to prevent further genocide of ukrainians by the group of Ukrainian lawyers it has been signed by more than 2 000 people all over the world and the core idea of this document is that even if there is no sufficient evidence at that moment and that was just April when the butcher Massacre evidence was surfaced the Contracting parties to the convention on the prevention of genocide have an obligation to prevent further genocide and we outline particular steps that could be done to prevent the further genocide of ukrainians then um published an independent legal analysis of the Russians Federation breaches of the genocide convention now once again I won't go into reciting its main arguments I would like just to invite the audience to analyze and read this report because we won't have the time to debate each and Signal element here and there is another article which will be published soon and there is a pre uh uh there is a a version of it printed uh there's a pre-print available already by my colleagues from Two Towns as well his um colleagues from National University of Cape Mayhill Academy about the legal reasoning and historical context of the genocide committed by the Russian Federation in Ukraine so in in that regard um I I kindly disagree with the uh conclusion that the acts that are being committed right now showed full of the of the definition of genocide now if there are no questions related to that regard I will move to the [Music] um initial part of my presentation where as I was asked to explain the efforts that are being made to document and collect all the necessary evidence and prosecute the perpetrators of war crimes and genocide it so uh and some of the issues for discussion uh which uh we we see here and we observed not in not just over this year but since the start of the war back in 2014. so this this presentation has been initially prepared by my colleagues uh Mitra Koval and uh Katrina bussel and I just added some parts of it for in respect to genocide but they have already covered the ongoing problems that we have in terms of documenting uh of war-related crimes in Ukraine now first question and well it may be a procedural nature but it's nevertheless important is competing jurisdictions um then I'll briefly cover the opportunities and challenges we have for documentation of concert War related crimes and then briefly address the prospects for domestic prosecution of of such crimes um for complete jurisdictions as you well know Ukraine has accepted the jurisdiction uh of the international criminal court and it's two Declarations of February 2014 and April 2014 well not while having signed but not ratified the Rome statute of the ICC we still have uh its jurisdiction of all events which happened since 2014 and we know that ICC is now actively moving into the direction of opening the first cases in parallel to the international criminal court there is a matter of Human Rights organizations and donors which for obvious reason have increased attention to the situation in Ukraine and on in parallel with the specialized with the classic organizations which have been working in the field for for a long time we witnessed the birth of specialized organizations which are specifically focused on documentation of international crimes and creation of evidence Gathering or documentation units in other organizations uh moreover talking of national law enforcement we saw the creation of particular war crimes unit within the prosecutor General's office and a particular walkaround units in the National Police and the security service of Ukraine of course the law enforcement system was not prepared to deal with war crimes such scale and and gravity before but what we witnessed right now is the increased capacity of Ukrainian prosecutors and law enforcement bodies generally to investigate war crimes and apply sometimes very challenging and uh controversial standards of international humanitarian law and international criminal law so in terms of national prosecution uh the criminal code of Ukraine criminalizes genocide and the definition of the act of genocide is quite similar uh to the uh definition from the from the convention and we know that there are ongoing cases right now and we know that there have been strategies developed to particularly prosecute the the the the crime of genocide in Ukraine because it is very important that not only the international uh tribunals or courts deal with the matter but particular national law enforcement agencies which have direct access to the evidence on the ground and have greater capabilities to uh work with the evidence apart from that a very um common uh violation which we have is uh the violations of the rules of customs of warfare which uh even though Ukraine has not ratified Rome statute we do have the criminal prohibition for war crimes in Ukrainian criminal code and documentation um happens through the following key actors so we have the prosecutor General's office which is one of the central institutions aimed at Prosecuting genocide and war crimes and uh which works jointly with mobile Justice units within the atrocity crimes Advisory Group and on the other level we have National Police and security service of Ukraine whose investigators are directly conducting um criminal proceedings while the prosecutors oversee them the prosecutor's office reports that there have been 73 996 cases documented uh connect which are uh connected to war crimes and the crime of the crime of aggression and propaganda four of them 71 and 747 cases are investigated on the article 438 in particular war crimes a separate element of that and a moment of great attention is the um the crimes against children so what has been documented as of today and this is only the portion that has been documented by now given the evidence that is available today while not all of the territory of Ukraine has been liberated is that we have 464 children dead uh 935 wounded 373 missing and at least 16 226 children confirmed as deported forcibly to the Russian Federation now I will once again remind you that deportation of children is one of the elements of the crime of genocide which is sufficient per se now at the same time the some of the Russian sources claim that as much as 744 000 children have moved to Russia this claim is impossible to verify at the moment but we nevertheless record this statement that they claimed that 1700 744 000 children have been relocated as they claim from or have escaped Ukraine into the territory of the Russian Federation um to um other key actors that are present in the field of uh war crimes uh and genocide documentation is that since 2014 When The War Began large Ukrainian non-governmental organizations have been established to deal with a wide range of human rights violations and those organizations have now expanded their work to include war-related crimes so there are at this there are human rights organizations who have which have introduced war crimes uh additional capabilities and then there are non-governmental organizations which are focusing specifically on documentation of war-lated crimes such as the truth hands which I wanted to represent here um they're in a separate category are Regional Ukrainian non-governmental organizations such as the Crimean Human Rights group Regional Center for human rights or vostok source which deal uh mostly with the particular geographical areas and then there are Ukrainian ngos that are documented conflict related crimes in particular thematic areas such as sexual violence or uh crimes against children as well as the as in the final uh points so you see that the uh the the the the scene here is quite diverse of course the international and governmental organizations that have been working consistently in Ukraine since 2014 such as the Human Rights Watch now when the vast amount of these organizations it is it was very important to coordinate the efforts and at least two well two major collisions have been established one being called the 5 a.m Coalition which um refers to the moments that The Invasion the full scale Invasion started about 5 a.m in the morning and the Tribunal for Putin coalition um as you see uh those coalitions include a wide range of Ukrainian uh and international non-governmental organizations um and this type of coordination is very important to avoid duplication of efforts so these are the participants of the 5am coalition and these are the participants of the Tribunal for Putin initiative uh being the three major ones and additional 24 organizations which have joined it the challenges we face when documenting uh genocide and war crimes is the first problem which might not seem obvious at the first time being over documentation when the very same incident is being documented by multiple organizations including Nationals International and the government organization there is a risk that uh evidence may not be collected properly and uh the challenge that we face is that there is no one overarching evidence storage and Analysis database so not only our efforts may be duplicated when a particularly uh blatant War crime happens but it's also hard to understand who is what working on who specifically and who has documented what and what are the conclusions and what is the evidence that has been collected so uh the other challenge that comes to it is uh the potential lack of credibility due to uh lack of objectivity and there have been voices already that ukrainians ngos which are documents that cannot be objective because well they are ukrainians and therefore they have a bias to call every act that has been committed a war crime this is a problem which can be overcome by a collection of evidence in a proper manner and providing correct legal analysis so I would say that while this is one of the challenges it is not something that bothers us completely from doing our work and uh among among other challenges we see that uh sometimes the Maybe political considerations which come into play uh on which affect the work of some of the of the units um while this challenge is uh is on the table we don't see the it at the moment as significantly affecting the efforts and we are working including with our International Partners to have an honest side review or peer review of the work we're doing to make sure that we are objective in our analysis and uh in in the activity and in our evaluations so overall we we can say that uh there is a greater interest in uh in in a greater need in expertise for war related crimes across the whole country and the work that has been ongoing so far is uh quite significant because the overall competence of uh State authorities and non-governmental organizations working in the field has risen significantly and there is a lot of effort both National and international to share this knowledge share this better understanding of international criminal International humanitarian law which directly gives particular results now the final issue which uh also has to be taken into account is that one of the core principles of humanitarian activity Do no harm it is very important for war crimes documentators to avoid reformatization of the victims of these war crimes this is why many organizations are specifically embedded psychological experts and which provide guidance on how to best work with the victims to avoid such reformatization um that is it as a terms um of what we see here um so these are the challenges that we face uh of course there's also problems with imperfect criminal legislation on International humanitarian criminal law and there are ongoing efforts to improve the legislation to fine-tune because for example article 438 of the criminal code is of a blanket nature it uh sends any other violations of uh the rules and customs of the rules of War which have been uh which are described in the international conventions um ratified by Ukraine and of course the the major challenge is the lack of Alternative forms of distress so the work we're doing right now is very much work for the future that we hope that we will able to bring the perpetrators to Justice and for that goal to be possible it is very important that all evidence is collected today it is preserved in the most accurate way as possible that is it from my side thank you thank you Nick this is really really comprehensive and allows us to understand what is happening in Ukraine and what guys are doing it's really commendable so thank you so much and now allow me to introduce our last speaker prosecutor Thomas who is a very distinguished experienced prosecutor has with over 40 years of experience and in you know in general as prosecutor and 20 years an international level and who was a lead prosecutor in a two-year long crime trial of crossover six and many other Yugoslavia related crimes so um Tom I will not elaborate anymore your Vita and every other speakers Vita will be posted on our website so please take it away thank you it's an honor to be here I appreciate the opportunity I'll try to keep this short uh I want to talk about my experience in working at the international criminal Tribunal for Yugoslavia from the years 2001 to 2012. and I I think this is of interest and use to those people who will be working on the investigation of Crimes by the Russians in the Ukraine um and based on my experience at the icty I can point out some of the difficulties and maybe ways to avoid some of those processes now first of all you have to decide who you're hoping to prosecute um and I think regarding Ukraine there's some good ideas about people that you want to prosecute including people with the highest levels um and doing cases of that volume and that size and that complexity take a lot of time to prepare and get ready and you will need Insider witnesses to have a successful prosecution of cases like that and there are difficulties with cooperating Insider Witnesses they're running a great risk even at possibly losing their own lives by cooperating with the prosecution and some people uh will who probably deserve to be prosecuted more than serve as a will witness for the prosecution end up acting as Witnesses because the prosecution is in under a lot of pressure to get their case started and start the trial as soon as possible um and I also want to talk about the importance of selecting uh the right interpreter because you will need at least if you're an English prosecutor and you're going to be doing a case about Russians in Ukraine uh you'll need interpreters to help you interview Witnesses and it's important to have the right interpreter I'll tell more about that in a minute and then plea bargaining coming from the United States I I think in state courts in the federal courts the percentage of cases that are resolved by plea bargaining ran somewhere around 95 percent just because we have too many cases and we don't have the time and resources to pursue cases with full trials um let me see okay so deciding who to prosecute it depends on the number of crimes you have and the resources you have to do those investigations uh identify the crimes committed and the people to be prosecuted is what you have to decide upon before you get started so you know how many resources you need and how long it maybe is going to take um you're going to have to establish command responsibility to pursue prosecutions of the highest ranking individuals involved in these crimes and building your case from the ground up you got to start down at the lower level and work your way up I can tell you at the TTY which was founded in May of 1993 they did not get stuff together enough to have their first trial until May of 1996 and that was against an individual named who was basically a a paramilitary a low-level guard and a prison camp called omarska um out of the some 200 people prosecuted later on that was one of the lowest levels possible but there was a lot of pressure in the icty to get started so that's something you'll have to think about when you're starting with a new Tribunal to do war crimes or genocide crimes difficulties with working or um cooperating with Insider Witnesses um it's almost always necessary to have Insider Witnesses in doing some cases like this that involve such large organizations and such complexity the key to identifying the internal structure of the army or the police or the political party the leaders and those most responsible um and culpable for the crimes some might try to see themselves by volunteering to assist um and the prosecution and how to decide whom you can trust to work with you as a prosecutor is something that involves a lot of care the picture on my slide here is a man named Mitchell davidovich he was a cooperator for us at the icty all right he had done solid in uh in investigations in the field his information we were able to confirm from other sources and documents and his interview uh her first interviews before we went to trial were very helpful in our entire case um and related to that is the other point I wanted to make about the importance of selecting the right interpreter in doing these cases if you're a prosecutor from another country and you have witnesses speaking foreign language for you and for the judges some of the judges it's really crucial to have uh the right interpreters from the beginning all the way through the trial especially when you're dealing with Insider Witnesses uh whether the language as a Ukrainian versus Russian or Bosnian Croatian Serbian you need somebody who knows about the background of the case and uh and somebody that Witnesses uh can feel comfortable with but also you as the prosecutor have to feel comfortable that The Interpreter is making uh making it clear what you are doing as a prosecutor what do you need to have from the witness [Music] Etc um and I I had some experiences in my life as a prosecutor uh in the federal government back in Arizona where sometimes we needed Witnesses for uh Mexican Witnesses or people from the Indian reservations on which we prosecuted crimes and it's it's it's vastly important to understand our Insider witness uh was the highest ranking uniform policeman in in Yugoslavia at the time and it was a very dangerous thing for him to do to cooperate with us it's a tribunal and during our first interview after the first hour when he left the room for a break The Interpreter told us he was testing us me and the investigator to see if we really knew what we were doing if we really knew what had happened in the years during the war that we were investigating and who was who and so when he came back we asked him a question about a important regional meeting of police in Bosnia shortly before the war started and you know he said oh yes yes I was at that meeting who was who was the local Commander the regional Commander there and did the speech we knew who it was we said do dushka Savage and he then felt like oh okay these guys know what they're talking about and he became helpful and ended up testifying in five or six trials there so that was important the final point I wanted to talk about was plea bargaining coming from the US as I said uh we had something like 90 per eight percent of criminal cases get resolved by plea Bargains uh and at the icty we actually in the early days maybe had something like I think it was uh yeah 19 cases uh resolved by guilty pleas but uh it happened early on and after that we weren't able to do it anymore um partly because many of the international judges came from countries where they didn't have done as a process they didn't like it um and the defense attorneys and the clients were after the first few guilty pleas decided that this wasn't really working well because unlike in America where you could work out a specific deal and say okay he's going to plead guilty to count one he'll get six weeks and three days in jail you'll pay a 27 fine and I'll have a 60 hours of community service and the judge will either accept that or not but everyone knows what it's going to get at the icty the judges would not agree to anything like that all we could do was make a recommendation on behalf of the prosecution for example to say the defendant will not get more than 12 years in prison but it can only be a recommendation and early on we had some cases where the judge after the accused who had pled guilty they testified against some other uh soldiers or policemen from his from his country and then when it was time to be sentenced the judge would decide whether or not to give him 16 years or less but in a couple of cases the judge ignored our recommendation and because he thought witness had lied during his testimony and he gave in 25 years instead of 16. so that didn't work much after that but I still think depending on the circumstances plea bargaining may be something useful and maybe something that you want to consider I'm sorry that's all I had for now I appreciate the opportunity and uh thank you very much thank you Tom and thank you everybody for being here I am I apologize to our audience we're running a little bit over time but this happens especially when you have so many amazing speakers with such insightful knowledge um we have many questions and uh because we are at two hours 19 minutes I think I hold them for now but let me say two six first of all let me thank everybody who participated in making this webinar possible starting with again in Law Society Foundation various comedies of American Bar Association and fellows of ABA Warsaw and Krakow bars polish culture Institute New York New Jersey State Bar Ukrainian Bar Association New York state but Association and especially the Ukrainian task force University of Pennsylvania Department of Russia and East European studies University College London University of Aberdeen the agilonian and Warsaw University City Hall law school and Seton Hall School of diplomacy American University law school Temple Law School International Law Society Center for American studies in University of Portland at least last but not least a very very special personal thank you to two amazing women two amazing judges honorable Lisa Lisa Ridgeway and honorable Linda Mornay um thank you again to our amazing speakers for your knowledge um and thank you Ambassador for your keynote speech this webinar the related materials the recording the Vitas of our speakers and the Publications so you can read them will be posted on the agilonian website and question Foundation website those of you who own CLE credit I got several questions please write to the agilanyanlaw society gmail.com we will send you the forms and you'll get the credits and thank you thank you all for being here especially the speakers for your work in preparation your knowledge and your expertise thank your audience for being here and let me leave you with two quotes one from my favorite fellow Anthropologist Margaret Mead and another one from President Kennedy and the quote from Margaret Mead is beautiful she says never doubt that a small group of South committed citizens can change the world indeed it is the only thing that ever has and President Kennedy said one person can make a difference and everyone should try thank you thank you for being here thank you all and have a lovely day thank you very much Elizabeth also for you thank you very much and goodbye thank you goodbye

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Length: 139min 39sec (8379 seconds)

Published: Tue Aug 15 2023