‘Russian military defeat will enhance the probability of bringing Russia to justice’ Yevgeniy Zakharov’s interview to the Ukrainian NGO ‘Media Detector’
Also, the Media Detector discussed with Yevgeniy Zakharov such issues as the responsibility of Russia and its leadership for the war crimes, the possibility of applying to the International Criminal Court or creating a special tribunal on the crime of aggression, and whether Putin will suffer the fate of Augusto Pinochet or Slobodan Milosevic.
Yevgeniy, many people in Ukraine criticized the decision to award the 2022 Nobel Peace Prize to three human rights organizations from Ukraine, Russia, and Belarus. They perceived it as the next manifestation of the continuous attempts by international organizations to combine “fraternal peoples” and reconcile the victim with the aggressor. How do you feel about the Norwegian Nobel Committee’s decision and criticism against it?
I think the Nobel Committee’s decision is quite reasonable and justified, while the reaction to it in Ukraine is inadequate. I consider false the idea that the Nobel Committee decided to reunite the three countries again into a “family of fraternal nations”. First, the prize was awarded not to the Russian Memorial but to the international one. Whatever anyone says about it or what the Nobel Committee wrote in its press release (the release states that the prize was awarded to the Russian Memorial — Ed.), the prize was actually given to the International Memorial Society, which includes about thirty organizations from Russia, Belgium, France, the Czech Republic, Germany, Italy, and Ukraine.
Secondly, both NGOs (International Memorial and Ukrainian NGO Center for Civil Liberties) and Belarussian human rights activist Ales Bialiatski do not represent any state but harshly criticize their respective states. It‘s why Belarusian and Russian human rights defenders are persecuted in their countries. This does not apply to Ukrainian NGOs because Ukraine is a democratic state and does not persecute its civil society organizations. However, the Ukrainian state also violates human rights. Thus, both the Center for Civil Liberties, which received the award, and the Kharkiv Human Rights Group defend people whose rights have been violated by our state. So let me stress: the Nobel Committee wanted to honor those who defend human rights against states but not to combine these states in any sense. And those who perceived this award as an attempt to combine these countries made a mistake.
What are the formal relations between KHPG and Memorial?
When the Nobel Prize was awarded, KHPG was the only Ukrainian NGO to be a member of the International Memorial. KHPG is, in fact, the Ukrainian Memorial: the Kharkiv Memorial has existed since August 1988 and was part of the USSR-wide Voluntary Historical and Educational Society Memorial, which lived since 1987 and was formally registered in 1989. I was a member of Kharkiv Memorial from the very beginning, and since 1990 I have been its co-chairman. In 1992, we founded a separate legal entity, KHPG, which joined the International Memorial Society. I have been a member of the International Memorial Society Board since 1994.
Thus, the Ukrainian Memorial is closely and directly connected with the International Memorial, which received the Nobel Prize. I want to emphasize that the Board of the International Memorial unanimously decided to hand to the Ukrainian NGO KHPG the first replica of the Nobel medal and the first copy of the diploma. The Nobel Committee has the following rule: The Committee issues one original gold Nobel medal and a diploma; additionally, ten official replica medals made of another metal and ten official copies of diplomas can be given. Three copies are free; you must pay for the other seven if you want to receive them. The International Memorial is an NGO association; it counts many more than ten members in Russia and abroad, and all are entitled to these medals and diplomas. But we are the first Memorial member to receive the official replica of the Nobel Prize medal and diploma from the Memorial Board. So we can consider that there are two Nobel Prize winners in Ukraine at once: the Center for Civil Liberties and KHPG.
Have you already decided how your organization will spend a part of the Nobel Prize, which is also transferred to Ukraine?
We will receive half of the prize money awarded to Memorial. This is a considerable amount: about EUR 150000. The money hasn’t arrived yet; we must wait because Memorial is now in a tough situation in Russia. And we have some funds under other charitable programs.
We are only operators, which means that the Board of our organization decides how to use these funds. The Board decided to use them to help families with perished civilian members. Why only civilian family members? Because the state is legally responsible for caring for fallen soldiers’ families. Unfortunately, the state is not helping relatives of perished civilians yet. And if we can help at least a little bit, we need to do so. But the new Board will have to approve the policy of distributing these funds in more detail, considering additional criteria. The ‘Tribunal for Putin’ war crimes database, where 20 other Ukrainian organizations and we document war crimes, now contains names of more than 6,500 dead civilians. If we give at least three thousand hryvnias for each, we will be able to help about 2,500 families. It is only 35% of the total number of civilian victims documented by us. Unfortunately, we don’t have enough money to help everyone. Therefore, we will need to consider additional criteria like whether it is a large family where a father or mother has died, a family with a disabled person or a person with a severe illness, or a family with lonely elderly people, etc.
Are there any differences between the information included in the human rights organization database and the number of criminal cases opened by law enforcement? Do you coordinate your efforts?
State law enforcement agencies have opened quite a few such cases, but they lack the resources to conduct investigations. I will even tell you that no national law enforcement system in the world could cope with such many crimes. It is impossible. That is why prioritization is necessary. Interestingly, law enforcement bodies have the same priorities as ours, although we did not coordinate them beforehand. The highest priority cases for law enforcement that they investigate first are those in which civilians were killed or injured or people, both military and civilians, were illegally deprived of their liberty and taken prisoner, where they were tortured. Also, there are criminal cases of abduction concerning people who were abducted and taken to unknown places; we are also looking for information about them first. In addition, there are some very high-profile crimes with many victims, like brutal attacks on crowds of people in a building. We all know the examples: the attacks in Mariupol on a maternity hospital, an art school, and a drama theater where up to a thousand people, including children, were hiding, the shelling of the Kramatorsk railway station, attacks on individual buildings in Odesa, Dnipro, Kharkiv, where many people were injured simultaneously. Also, the shelling of queues to receive humanitarian aid, attacks on humanitarian convoys, and humanitarian missions. So there is a list of crimes we all single out because they are brutal, cruel, meaningless, and serve no military purpose. Both we and the state bodies believe such crimes should be investigated first. More precisely, the state should investigate, and we should collect information that will help the investigation. We collect it concerning such cases and aim to help law enforcement agencies as much as possible.
It should be noted that the lion’s share of recorded crimes consisted of the destruction of housing and other property. They account for about three-quarters of the total number of crimes. It is true both for our database and for law enforcement agencies. In cases of the destruction of property, our task is to ensure that criminal proceedings are opened and that the owners receive an extract from the state Unified Register of Pre-trial Investigations to prove that they are victims. Law enforcement agencies now do not have the capacity or resources to investigate these cases further. For example, only ten investigators are dealing with such crimes in the Investigative Department of the Security Service of Ukraine in the Kharkiv oblast.
Do you mean all the crimes registered in the database or only those related to the destruction of housing?
I mean all of them. About 10,000 crimes in our database are registered in the Kharkiv oblast alone. Some four thousand in the oblast and about five thousand in the city. More than 4500 houses out of eight thousand were destroyed or damaged in Kharkiv, not to say about the oblast! How can ten people investigate all these cases? That’s why I support the idea that we need at least to record all these crimes today. And we are helping enforcement bodies a lot in this activity: we are recording destructions through photos and videos. Where we can’t get close, we use a quadcopter. We had two of them but donated one to the SSU. Our employee uses this drone to video places where we cannot get close: on the roofs and upper floors. We must do it before the buildings are repaired or demolished.
In addition, we participate jointly with the enforcement bodies in other investigative actions in the priority cases I mentioned. We have 350 such proceedings, and we are involved in 67 cases in the Kharkiv oblast. Cases of people killed, wounded, tortured, stolen, illegally deprived of their liberty, a shelled queue to the Nova Poshta office to receive humanitarian aid... We cooperate well with law enforcement, and our help expands their resources. After all, there is a catastrophic lack of people for this activity.
Law enforcers were convinced that our lawyers are professional and we are well trained for such activity. We know the rules, for example, the procedures of forensic photography: how to do it, how it is formalized, and how exactly to take pictures. We use digital cameras exclusively so that the quality is appropriate. After the liberation of the Kharkiv oblast, three of our groups go out daily to record crimes and collect data.
Did you somehow train your people since the beginning of the war? Or have they been working like this since 2014?
We did not do it then. I have to say that there was no political will to investigate such crimes then. They were not investigated in the way as it happens now.
We have lawyers on our team. Professional lawyers who represent the victim’s interests in court in criminal proceedings can, in principle, work as investigators because it is part of their education. They all learn together at law schools, but then some become prosecutors, and others become lawyers. But they study the same subjects. For those of our employees who are not lawyers, we held a training session on how to draw up protocols and take photos. We taught them, and they are working well.
How many people work in KHPG now?
A lot. We have grown significantly during last year, more than three times, and it’s even hard for me to count now. For example, at the beginning of 2022, we had two people in our media department, and now we have twenty. We have created a website about war crimes in seven languages-Ukrainian, Russian, English, French, German, Italian, and Spanish (t4pua.org). We started working on it during the war and launched it in September 2022. It contains articles about Russian war crimes in Ukraine, short videos, and statistics updated daily with data from our database. This is very revealing information showing trends in the crimes Russians are committing.
Besides, we are taking interviews for our website’s Voices of War section, which now contains more than 160 interviews in Ukrainian and partially in Russian. This project is very important because it allows people who have suffered from Russian crimes to speak out and tell what happened to them. People feel relieved after telling their stories. Some videos have attracted hundreds of thousands of views on YouTube. Since the new year, we are gradually translating these interviews into nine languages, adding Polish and Czech to the existing seven languages. This is a joint project of the international and Ukrainian Memorials. All European Memorial organizations translate these interviews into their languages, post them on their websites and social media pages, and distribute them in national media. Thus, we spread worldwide first-person accounts of what is happening during this war.
Are your employees volunteers?
We have volunteers, and there were quite a few at the beginning of the war. Now I am gradually transferring them to the status of employees because it is hard to survive today by doing volunteer work exclusively. So, I am trying to get as many grants as possible to provide for everyone. As the director of KHPG, I have a heavy workload now, but what can you do: war is war, and it requires all of us to work as hard as we can. Our primary source of funds is the two-year European Union grant. We are also supported by the Dignity — Danish Institute Against Torture. They fund three of our projects, allowing us to expand our activities. Previously, we only had legal assistance, and now with their support, we started psychological assistance service. This service has already worked for five months in Kharkiv, and since the new year, we have been providing the same assistance in Kyiv and Lviv, not only for city residents but also for people from the oblast. We are constantly sending teams of lawyers and psychologists to monitor the situation in Kharkiv, Chernihiv, and Sumy oblasts. Now we will do this also in Kyiv and Lviv oblasts. Such trips help reveal many new crimes that were not previously documented or known at all. Thus, we expand our database and find people needing legal and psychological assistance. DIGNITY (Danish Institute Against Torture) are not only donors, but also our friendly partners, and they are actively involved in this project. I am very grateful to them because they are flexible and quick to respond to new needs and changes. We jointly decided that in certain situations, we need to organize legal, psychological, charitable, social, and even medical assistance to victims of war crimes. We are trying to build a system that will be able to provide all these types of assistance to a person appealing to us. In Kharkiv, we are already working this way, so we have more people, cases, and appeals. More and more of everything.
How do you document crimes taking place in the occupied territories?
In the general Ukrainian-wide database of the human rights project “Tribunal for Putin,” KHPG is responsible for two oblasts — Kharkiv and Mariupol. We selected Mariupol from the very beginning, in March 2022, when there was fighting there. Mariupol is the most challenging place to document war crimes. There has been no communication with it since March 2, there are no reports in open sources, and what information is available has to be carefully checked. Therefore, the primary way to collect information about Mariupol and some other areas is through direct contact with victims and witnesses. Our Mariupol team, which consists of people from Mariupol, has already found more than 3,000 instances of war crimes. It seems few for Mariupol, but it’s really quite a lot. We now know quite a lot about Mariupol, what and how it happened there, in what order, up to detail. We took a lot of interviews with those who left the city to the Ukrainian government-controlled territories, and we are now preparing a book of their stories and a documentary based on these interviews.
Mariupol evacuees are uniting in the cities where they stay, creating “I am Mariupol” centers. There are such centers in Kyiv, Khmelnytsky, and Ivano-Frankivsk. Some 500 people from Mariupol live in Lviv. We communicated with them in advance and went to Lviv in January. We gathered those who suffered the most, found out who needed legal or psychological help, recorded some episodes for our database, and clarified some details. This is now the only way to record crimes committed in Mariupol. In addition, we travel to the de-occupied territories visiting places that have suffered the most. These are the cities of Okhtyrka and Trostyanets in the Sumy oblast. Vovchansk, Izyum, Kupyansk, and some villages such as Kozacha Lopan and Slatyno in the Kharkiv oblast. In the Chernihiv oblast — the village Ivanivka.
There is a huge demand for justice in society. Do you think there is a real possibility of convicting the top leadership of Russia? Is there a real possibility of a tribunal for Putin? Why is there a need for a separate tribunal, as called for by the European Commission, rather than a trial at the International Criminal Court?
First, the ICC has every reason to bring Russia’s top political leadership to justice if and when it receives evidence. The investigation has been going on since early March. The question is whether they will find proof since such orders are always hidden and often not fixed on paper. Even if there are documents, they are secret. I believe the likelihood of bringing the Russian leadership to justice will increase significantly after their defeat. I am absolutely sure that they will be defeated. The only question is when and at what cost.
Secondly, the tribunal proposed by the European Parliament is necessary because no criminal justice body can address the crime of aggression. The ICC can consider the crime of aggression when both the attacking and the attacked country are members of the ICC, which has ratified the relevant legal instruments. Neither Ukraine nor Russia has ratified the Rome Statute. Therefore, the ICC can prosecute Russia’s military and political leadership if there is evidence of their orders, constituting the crimes within the jurisdiction of the Court. (On March 17, just three days after this interview was initially published in Ukrainian, the ICC issued arrest warrants against Putin and the Russian Commissioner for Children’s Rights. They were found responsible for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children. — Ed.). But ICC can’t prosecute Russia for the crime of aggression. The International Court of Justice can consider the crime of aggression, but it is not a criminal court; it does not pass sentences. That is why the idea of creating a special international tribunal on the crime of aggression arose.
We have examples of international tribunals, such as the Nuremberg Tribunal and the Rwanda and Yugoslavia tribunals. Are they similar to the proposed tribunal on the crime of aggression?
There can be no direct analogies because there have never been international tribunals on the crime of aggression. The tribunals for Rwanda or Yugoslavia were created after a vote in the UN Security Council. This will never happen in our case because Russia will veto it. The only option is that the UN General Assembly will vote for the creation of such a tribunal by two-thirds. The fact that the UN Security Council has blocked it will not matter in this case. Our diplomacy and the world’s diplomacy are now working to achieve this.
Why can’t there be a tribunal for the crime of genocide? Lawyers worldwide are inclined to recognize this war as genocide against the Ukrainian people.
This issue is even more complicated than the crime of aggression. As for me, I support this idea. While the European Parliament has adopted a resolution to establish a tribunal on the crime of aggression, it subjected it to the UN decision. I believe that if the UN does not approve such a tribunal, European institutions can create it themselves.
Will such a tribunal be legitimate?
Yes. But at the European level. This war occurs in Europe; all participants are European, with rare exceptions when mercenaries from Latin America or Africa come to fight on Russian or our side. Anyway, there are very few of them. The majority of participants in the war or its victims are Europeans.
There is also the option of a hybrid tribunal. The problem is that creating such a tribunal means allowing foreign investigators and judges to work in Ukraine. Our legislation and Constitution prohibit the investigation by foreigners of crimes committed against Ukrainians; only Ukrainian citizens can do it. And only Ukrainians should conduct court proceedings. Therefore, to realize the idea of such a tribunal will be necessary to create in Ukraine another judicial chamber aimed at considering war crimes that will include both foreigners and Ukrainians. We must change the Constitution for this, which cannot be done during martial law. But I would not reject this idea because it would significantly increase the potential of both investigation and judicial proceedings.
Do foreign law enforcement agency representatives now work in Ukraine and record crimes?
Yes, they do, and this is another helpful resource. There are no barriers to their work in this case. Foreign authorities can investigate crimes committed against their nationals. For example, two British volunteers were killed. The UK can now, on its own, investigate their deaths on our territory. We have to hand them all the information we know. Twenty general procuracies of twenty countries are now investigating war crimes committed against their citizens in Ukraine. There are dozens of such victims from some countries. In addition, national courts of other countries can consider cases of war crimes against Ukrainians under the universal jurisdiction principle. They have the right to do so and can assume many cases. I think this resource can also be used.
In general, justness has no statute of limitations. This is a proper philosophical principle, and it is pretty applicable to our situation. There is no statute of limitations for war crimes, crimes against humanity, and genocide. People will never forget those who have done them injustice. No matter how long time passes, such crimes must be investigated and perpetrators punished. Let me remind you how Chilean dictator Pinochet was brought to justice, although he was very old.
He was released from custody pending trial because he suffered from dementia.
They released him because they felt sorry for him. But Milosevic was not released, nor was Karadzic and many others. For example, there was a certain Arnold Meri, a Hero of the Soviet Union and a cousin of the second president of independent Estonia, who participated in the deportation of Estonians to Siberia in 1949. When he was already well over 90, he found himself in the dock. (Meri died before he was sentenced. — Ed.).
By the way, this brings us back to the conversation about the crimes of the communist regime. There were no criminal trials for such crimes in Ukraine compared to Estonia, Latvia, and Lithuania. While they should have been. Moreover, if the crimes of communism had been judicially condemned in Russia, it would prevent the current horrible developments. Because such condemnation greatly influences the consciousness of society. Just like it happened in Germany. At first, German society received the Nuremberg trials very poorly, with distrust and protests. But all these denazification procedures changed the Germans. Nothing like this happened in Russia, and we see the result: Ukraine became a victim of Russian aggression precisely because communism was not adequately condemned.
Is it too late to do it now?
We can also hold an international tribunal on the crimes of communism. Sure, all those who committed these crimes have already died. But it can be an ad hoc tribunal with a unique charter aimed at least to protect the good name of those proclaimed criminals under the USSR. I mean pretty specific people, for example, those who were shot or repressed for distributing bread to peasants during the Holodomor (state-sponsored famine) in Ukraine of 1932-33. During these two years, 200 thousand people were repressed in Ukraine. Most of them are not rehabilitated yet. Such a tribunal would be very useful if only to tell their stories, to restore their good name, to remind society that they were not criminals, but rather heroes who tried to save their fellow villagers and thus fought against the cannibalistic policy of the USSR. It can be done even now.
You said that human rights defenders are primarily in opposition to the state. Has the work of human rights defenders become more difficult during the war? Have your relations with the state changed?
I can’t speak about all human rights defenders; the behavior and position of various HR NGOs differ. Our organization’s situation became more difficult as, until February 24, 2022, we did not hesitate to speak publicly about human rights violations. We always believed it to be our obligation. Sometimes, it was better to solve the problem without publicity, but we mostly did not hesitate to speak publicly about anything we considered necessary. The situation has changed because the enemy can use everything we say against our state, country, and ourselves. Therefore, we have to think 20 times about whether it is worth publicly talking about something. But we speak out if we consider that the state violates human rights in a way that rather plays into the hands of the enemy. In such cases, we try to state our position and prove that this should not be done. Unfortunately, the state bodies make mistakes. We often directly address specific officials and ask them to change something or not to pass particular laws without public discussion. But when we are sure that the state is making a big mistake, we act publicly.
It is difficult for me to assess whether they listen to us. Sometimes, the state corrected its mistakes. I have to stress that our specific communications with the state exclusively concern the issues in which we help law enforcement agencies and nothing else.
Which government decisions during the war would you call mistaken?
Unfortunately, there are quite a few, but this is a separate topic for discussion. I want to stress that we unreservedly support the government in the fight against Russian aggression.
Since the beginning of the war, there has been more than one scandal involving statements or actions of international institutions, including human rights organizations. For example, everyone remembers the Amnesty International report that caused outrage in Ukrainian society. Do you think these organizations are efficient? Do you see a decline in trust in these institutions?
I’ve discussed the Amnesty report extensively in Ukraine and abroad, and I think they made a mistake. But it should be noted that our state also made mistakes that Amnesty tried to point out. We did not want to listen to their advice, but this organization continues to work; it prepares new valuable reports on these topics. I can say that before that incident, all Amnesty’s previous reports were pro-Ukrainian, very substantial, and strong. When someone makes a mistake, everyone remembers only this mistake. And instantly forgets a steady good job and help that was before. I think that in this case, Amnesty lacked communication; they could have done it better. They even admitted that they made a mistake.
As for the general attitude towards international organizations, such incidents will not significantly affect their reputation: people in Ukraine trust expert Western institutions that study the war because they have much better capabilities than we do. We cannot take satellite images to see everything from space, while they can. We work in the field, on the ground, and they see it all from above, from space. It’s necessary to combine one with the other. So, I would not unequivocally reject what they do. There are some complaints against them, including mine, but we will continue to work with many of these organizations.