对话威廉.沙巴斯教授英文全文：俄乌战争罪审判可能性及其对国际法的影响

Shichen Tian 03:07

-Hello, Professor. Can you hear me?

-Yes I can.

-Hello. Very glad to have you with us. I think we have made a very serious for this episode. I invited one of our research fellows Ms. Wang Lin to host you for this very latest development in ICC. So I will turn off my floor to Ms. Wang Lin to conduct the discussion with you. Wang Lin, the floor is yours.

-Thank you.

Wang Lin 13:28

Thank you, Mr. Tian. Hello, everyone. Hello, Professor. Welcome to join global governance perspective by GGI. My name is Wang Lin and I will be the host today to talk with you, our very honored guest Professor William Schabas. First, I will introduce Professor Schabas briefly. Mr. William Schabas is Professor of International Law at Middlesex University London. He is also professor of international criminal law and human rights at Leiden University, and professor emeritus of human rights law at the National University of Ireland, Galway. Recognized as a leading expert on international human rights law, international criminal law, genocide and capital punishment, Professor Schabas is the author of more than 20 books, and 350 journal articles on all those issues we mentioned. He is also the editor emeritus of Criminal Law Forum. Professor Schabas was not only very famous in the academics, but also has done a lot of things in the real practice. He was a member of Sierra Leone Truth and Reconciliation Commission. He also worked as a consultant on capital punishment for the UN Office of Drugs and Crime. And he also drafted the 2010 and the 2015 reports of the UN Secretary General on the status of the death penalty. Welcome, Professor Schabas.

Professor William Schabas 14:55

Thank you, Ms. Wang. Thank you for the introduction.

Wang Lin 14:59

Yeah, thanks. I was very impressed. And now, we will talk about our topics today. Today's topic is the possible Russia-Ukraine conflict war crimes trial by the ICC and its impact on the development of international criminal law. As we know that in March 2 2022, soon after Russia launched a large scale military invasion of Ukraine, the ICC announced an investigation into the possible crimes committed in Ukraine by Russian Armed Forces. It is a very hottest start among the community of international criminal law. And it is said that the ICC sent a team of 42 investigators, forensic experts and the support staff to Ukraine to probe potential war crimes, representing the largest ever single field deployment since the office began its work in 2003. And we also observe that US and EU have been actively to launch some projects to support the investigation and empower the ICC by launching some related initiatives. They are the conflict observatory of US State Department and also the Foreign Policy Instrument of the European Commission. And they all give some financial support with those initiatives. So it seems that the ICC is facing an opportunity to be truly revived. Some people may assume this. But however, there are also some other people may wonder, is this truly a big victory for the ICC or not? So how to understand the quick response and assemble of resources from US and EU in this case, compare with the ICC’s performance in the previously in other situations? So if ICC did succeed in this trial of war crimes in this conflict, will it bring more confidence to the ICC or the opposite? So with all these questions, we will discuss in the following hour. And the Professor William Schabas is really the renowned expert in the international criminal law that we wish to talk and learn from about all this. So thank you Professor again for talking with us. And we are look forward to learning from you. And for the audience, in the end of today's talk, we will have about 10 minutes for Q&A if you have questions or want to give your comments. Alternatively, you can also put your questions in the chat box. And we will collect the questions and send them to the Professor later. So sorry for this very long introduction, Professor. First, I would like to start with a question, it’s that with the ICC’s probe into the accused of war crimes committed by Russia in Ukraine, so what's your latest observation of the development? Thank you.

Professor William Schabas 18:03

Well, yes, thank you again Mrs. Wang for hosting this and for inviting me to participate in this webinar. I've been following the International Criminal Court since its beginnings. I attended the Rome conference, where the Rome Statute was adopted in 1998. And I'd been working on this subject for several years before the Rome Statute was adopted. It's basically been my career is watching this. This field of international criminal law developed but more particularly this permanent institution, which was something that was our dream in a way. This was finally recognizing the proper place for international criminal justice. Internationally, as you know, it had been previously confined to temporary tribunals like in Europe, the Nuremberg Tribunal in Asia, the Tokyo tribunal, and so on. And then in the early 1990s, there was a revival of the temporary tribunals. We have a tribunal for the former Yugoslavia, and we had one for Rwanda. But the dream was always to have a permanent court. And so the framework for that court was adopted in 1998 at Rome, and it entered into force in 2002. You know, it's 20 years now since the Rome Statute entered into force and maybe more like 19 years since we can say that the International Criminal Court became operational. I think we have to say that it's been kind of disappointing in terms of its productivity. It's convicted five people. If you go on the website of the Court, they'll claim that they've convicted 10 people, and they've had four acquittals, but this is a very misleading picture of what the court has done. They've actually only convicted five people of the serious crimes in the Rome Statute. They convicted five people of minor technical offenses of tampering with witnesses that has nothing to do with international law. It's just a bad thing that people do when they're involved in court cases. So really it's only five convictions. And when they say, “Acquittals”, these are the trials that they were completed with a judgment of not guilty. But there were many more trials that were dropped along the way, because of the the prosecutor didn't have enough evidence, judges rejected them because of insufficient evidence. And so we're really actually talking more like, I think, 12 to 15 cases that didn't lead to a conviction, and five that did. And if you were a professional prosecutor working in China or anywhere else, if you had a 25% success rate, I think you'd be looking for a new job. Okay. So this is the productivity of the court. Now, when the conflict in Ukraine began at the end of February of this year, there was an intense mobilization of public opinion, media and so on against Russia in the part of the world where I live. I live in Europe. And basically, the countries that are in or around NATO got extraordinarily excited about this conflict. I think that in the rest of the world, there was less excitement, it was less dramatic. It looked more like a border war between two countries that the United States had played a significant role in provoking. Of course, it was Russia that was guilty of using force unlawfully. When they invaded Ukraine, the only grounds that they can do it under the Charter of the United Nations is self-defense. And they have argued that it was self-defense. So, you know, Russia broke the law, but they were proud of that and provoked by NATO. So the International Criminal Court immediately shifted its focus to the conflict in Ukraine. And some people as you explain, think that this is the magic potion that's going to reinvigorate the Court, restore it and give it vitality and significance. I think personally, that it's more like the poison pill. It's more like a poisonous potion that the Court will drink. Because what this is, is the clearest manifestation since the Court was created of it following a political orientation.

22:49

This was never so clear as it's been in the last four months. And my fear is that the Court has become the NATO court basically. It's become a court that follows the priorities of NATO. This was not the way the institution was supposed to be. When it was created in 1998, it followed a succession of temporary tribunals I've mentioned them, Nuremberg, Tokyo, Yugoslavia and Rwanda, that were all created by political decisions, by political bodies. In the case of Nuremberg, it was the four powers who met at the London Conference, the Soviet Union, the United States, France and Britain. In the case of Tokyo, it was the United States as the occupying power in Japan, but with the cooperation and consultation of other countries including China and other countries in the region. When the Yugoslavia and Rwanda tribunals were created, this was by a resolution of the United Nations Security Council. So that meant that it had the support of the five permanent members of the Security Council, but at least it didn't have the opposition of the five permanent members of the Security Council. Although it's clear that at the time, it was the United States with Britain and France who were the big enthusiast for having the court, but China and Russia were agreed. And those two were created. For most countries in the world, the idea that the selection of the agenda for an international criminal court would be directed by a body like the UN Security Council was profoundly objectionable. Objectionable because it was undemocratic. It was leaving this in the hands of a small number of big powers. But also objectionable because justice shouldn't be the focus of justice, shouldn't be a political determination. It should be a legal determination. And so the solution to how to do this was... there were two options. One was to create another political body that would be constituted differently than the Security Council. But that didn't get any real support. It wouldn't get the support of the Security Council, that's for sure. But it didn't get the support of others. The other was to create a prosecutor who would be fully independent and who would decide on the priorities of the Court. And so that is the result. Essentially, what we have in the Rome Statute is a court where a single person directs takes the decisions about the priorities of the Court, a person who is not accountable to a body does not have to justify their decision before another body, someone who can only be removed from office for gross misconduct and not because the members of the court object to the decisions the prosecutors taking. It can only be removed for corruption or misbehavior. And so that's the model. And it's an unstable model. It's an inherently unstable model. Because there's nowhere in the international sphere where we have a single person who can decide on the focus and the priorities of an organization with a budget of 150 million euro a year. It's absolutely extraordinary. The Secretary General of the United Nations looks like a bureaucrat compared to the prosecutor of the Court who has this huge power. Well, we've had three Prosecutors now. And the first Prosecutor, he was not so clear about his political priorities. But he was clear in one respect is that he directed all of his attention to Africa. And my thesis about this is he went to Africa because these were soft targets that did not bring him into confrontation with powerful countries, in particular, powerful countries in the north of the planet, of what we call the Global North. The second Prosecutor was a little more, I think, a little more courageous and a little more independent in that she pushed forward slowly, cautiously.

27:35

She could have been far more aggressive in this area. But she did push forward on cases and situations that were threatening to countries in the north, Palestine in particular, which infuriated not only Israel, but also, of course, the United States, but also to an extent Britain and France who were great friends of Israel. And then she also pursued the investigation in Afghanistan, which was clearly directed in part at the allegations of torture by U.S. agents in Afghanistan. And this, of course, infuriated the American government, to the extent that they put the Prosecutor on a kind of blacklist and impose the kind of sanction on the Prosecutor. So this, I think, showed some courage on her part, although she was very careful about it. And she never completed it in the sense that she never got to the stage of issuing arrest warrants against Americans or Israeli officials, for example. She also pushed forward on a case dealing with Russia in Ukraine, in Crimea, and in Georgia. But we have a new Prosecutor who was elected about a year and a half ago and who took office just 13 months ago. And he has very quickly demonstrated his own political orientation. He's a British prosecutor. He's a British nationality. The first thing he did was to make it clear that he's not pursuing the investigation of the Americans in Afghanistan. He's not doing that, he's stopped that. So this means that there's so far total impunity for the torture that was committed by American agents in Afghanistan. Nobody else is prosecuting them. No European countries are prosecuting Americans under universal jurisdiction. The Americans aren't prosecuting, prosecuting them. So there's a gap. There's an impunity gap, and the Prosecutor is not addressing them. As for Israel and Palestine, that cases is active and open, but we have no signs of life there. No, there's no progress, no visible progress in the investigation in Israel, which involves the Israeli authorities committing war crimes in Palestine, but also the war crime of moving settlers into occupied territories. And then we have this sudden excitement at the end of February and the beginning of March of this year about Ukraine. Now, the International Criminal Court is designed to address impunity situations where crimes are going unpunished. Generally, because the courts of the country that should be punishing them are not doing their job. That's the model of the court. That's when the court is supposed to operate. This is not the situation in Ukraine. Ukraine has already had trials. People were rejoicing. They prosecuted the Russian soldiers some time ago when sentenced him to life imprisonment. And they've shown, they're doing investigations, they have a very active Prosecutor and a prosecution office. So there's no reason for the International Criminal Court even to be there. But and the prosecutor could very easily have said, you know, it's a good situation in terms of criminal justice in Ukraine, because the courts there are doing their job. And to the extent that there were war crimes being committed on the other side, and Russia, of course, has alleged also the genocide has been committed in eastern Ukraine. Russia is doing prosecutions as well. So there's no problem of impunity, except one of resources. And I think that the courts of Ukraine are more efficient than the International Criminal Court, the case that the courts of Ukraine finished two months ago, if that had been at the International Criminal Court, it would go on for three years or four years. So there's no reason for them to be there, except the symbolism.

32:03

And the other problem with it, the Prosecutor came to the meeting of all of the states of the Court last December before this crisis. And he said, I need more money, I don't have enough money to do what I'm doing. I have all these investigations. And I can't do them because they don't have enough resources. And the countries that have the money, Britain and France in particular said, No, you have enough money, you get along and do what you can do with what you have. All of a sudden, at the beginning of March, the wallets, the persons of these countries opened up. And the EU made a huge financial commitment. This was also not supposed to happen at the International Criminal Court. It was very important in terms of the independence of the court, that is priorities not be directed by rich countries, the way they do in the United Nations, we all know that in the United Nations, particularly in the area of human rights, that the priorities are often directed by wealthy countries because they don't have enough money in the UN. And so countries say we'll give you money to do this. The countries of Africa don't do this. They don't have any money. They don't have the money to do this. Many countries in Asia, Latin America, they don't do this. It's the rich countries in the north who have the money. And so it's rich countries in Europe who've given the money to the Court. And this also was not supposed to happen. I'm sorry for going on so long, but I have a lot to say on this. So in Europe, in the EU, they're so excited. They think this is the most fantastic development for the International Criminal Court. But the International Criminal Court is not a European court. It's a global court. The largest regional membership of the court is in Africa. The Africans, they're not enthusiastic about the prosecution, because they're not enthusiastic about the Ukrainian side and the NATO position in the war. So this is something that will endear the Court to the Europeans and to wealthy countries in the world. But ultimately, it's going to destroy the support that they have elsewhere in the world. And more and more countries will look at it and say this is just like other institutions that are run by the rich countries in the north and follow their political agendas. And I think in the long run, this will greatly damaged the Court. I think it's going to do a lot more harm. And there's no need for them to do it. Because the courts of Ukraine can do the job themselves.

Wang Lin 34:59

Thank you Professor, you gave us a very comprehensive overview of the whole situation with historical, the clue and also the future prediction. And I will dig deeper with some specific questions. And you mentioned, what impressed me is, first you addressed that the ICC is an international court, it’s not a NATO court, it’s not an European court. So it is working on opposite direction as it was designed previously. But maybe some people in the West, especially from those countries, they may hope that with the ICC investigation will have some impact, maybe deteriorates on the conflicts on the ground in Ukraine. Do you think they will have this goal realized or will that work?

Professor William Schabas 36:00

Well, the International Criminal Court can exercise jurisdiction over four crimes. Genocide, I think we can exclude this, there have been allegations of genocide on both sides. But in my view, this is not the correct term to be using. It's being used in a non legal sense because it excites people and mobilizes people. Both the Russians and the Ukrainians have used it. Joe Biden has used the word. Others, Justin Trudeau has used the word and some leaders of other countries. But let's put that aside. So the main allegations are of war crimes that are being committed in Ukraine. There are war crimes being committed on both sides. So we hear also these reports about we have to investigate the Russian war crimes. And it's probably the case that Russia has committed more war crimes than Ukraine, but Ukrainians have committed war crimes as well. And if we're going to prosecute those crimes, as they say they have to be done on both sides. The other crime within the Court, so war crimes are about violations in the context in the conflict, mainly by combatants, by soldiers who target civilians, who abused prisoners, who abused civilians in the territories that are occupied, who use weapons indiscriminately and kill civilians. These are examples. There's a long list of them. And as I say, I think that it's clear that some of them have been committed on both sides, although I think probably a lot more by Russia than by Ukraine. But so the question is, can we deter those crimes? The International Criminal Court can prosecute them. But I don't think that it's having a great deterrent on Russian soldiers, because the Russians are not members of the Court. They don't have any obligation to cooperate with the Court. I guess that if there are Russian soldiers who are suspects, and they decide to go on vacations to the south of France, they might expose themselves to being arrested and brought to the International Criminal Court. But I don't think that's a likely scenario, I think it's quite unlikely. There's also the hope that they will be able to prosecute the Russian leaders. And there's the sense that maybe the International Criminal Court could prosecute the Russian leaders. But they would need evidence, that I don't think they really have, of  a chain of command that there were orders that the Russian leaders ordered their soldiers to commit these crimes or didn't punish them. That's not straightforward. The woman who's about to be anointed as the next Prime Minister of the United Kingdom, Liz Truss, some weeks ago talked about how Putin had ordered rapes and other war crimes to be committed. But this is fantasy. This is imagination. There's no evidence that these crimes were ordered. So this will be a challenging thing. Also, there's a lot of talk about in the press mainly and by politicians about things that are alleged to be war crimes, but when we see the evidence publicly what's reported in the media, it's not so clear that these are war crimes.  

39:34

Things like when a missile hits near a hospital or hits a hospital. It's not obvious that that's a war crime. We have to know more to be able to say it's a war crime. We have to know, for example, whether it was being used by the Ukrainians for a military purpose or whether the Russians could reasonably think that. So I'm not trying to apologize for the Russians. But just to say that a lot of the reports of war crimes that I've seen in the media are not actually... if we gave them to our law students on an exam and say, could you conclude this as a war crime, the answer would have to be no. Because they don't answer some of the questions. There were the scenes that there was a great deal of excitement of bodies, of civilians on the street in the town of Bucha. And people said, these are civilians who have been killed, this must be a war crime. But that's not true. Civilians can be killed in an armed conflict without it being a war crime, especially in a country where the president of the country has called on his citizens to resist the invasion. He made a general appeal. And he said to all men of a certain age above, I guess, 18 years of age and below the age of 60, could not leave, could not become refugees, because they had the fight. And we saw photographs, a great deal of excitement, people were praising this in the West when civilians in Ukraine were helping to make things like Molotov cocktails to attack the Russians. So when the other side thinks that the citizens not the soldiers, but the civilians have been mobilized to fight them, they become targets. It's terrible. It's a terrible thing. But Ukraine blurred the lines of who was a combatant and who was a non-combatant. And this put the non-combatants in Ukraine at risk. It's not just me who's saying this, the big human rights NGOs have said this. Amnesty International, Human Rights Watch have all pointed to this and said that Ukraine was careless about distinguishing between civilians and combatants. So again, all of this means that we have to have a closer look to see, you know, what the war crimes were. There was a huge amount of media attention about the sexual assaults and the rapes. And as I say, the woman who's going to be the next Prime Minister of the United Kingdom, said that Putin had ordered them, although there's no evidence that he did this. But you know, the United Nations Human Rights and the High Commissioner for Human Rights has a mission in Ukraine. And it issues a report every few weeks about the number of casualties. They investigate the casualties. And they have about 20 cases, I think, according to the last report of sexual assault and rapes that they're investigating. So these are crimes. They're terrible crimes. But if Putin had ordered them, there would be more than 20 that had been committed. That's for sure. And it's not a high number. It's an unacceptable number. These are horrible crimes, even raping one person is a terrible crime. But the numbers are not of the magnitude than the impression that's been given by politicians and by the media. The other thing that the numbers from the Office of the High Commissioner show is that the number of civilian casualties has declined very considerably. So it was quite high in March.

43:46

It was high in April, but it's been declining significantly. Does this show a deterrent effect to go back to your original question? I don't know. The problem always with trying to determine the deterrent effect of criminal justice is to see, is to identify the people who were deterred. I have to tell you I've been to China many times. I've often been involved in debates about deterrence, not about war crimes, but about capital punishment in China, and the idea that the death penalty, you know, people who defend the death penalty say we need it because it deters people from committing serious crimes. But the thing is, we only see the people who are not deterred, who commit the murders, because the people... I don't know how many people are here in the webinar are watching this, but I don't know probably none of them committed a murder in the last year. Is that because they were deterred by the death penalty? No. It's because they're good people who respect human life and they could never murder another human being. That this is the problem with deterrence, is that we don't know that it has a deterrent effect. Probably, the greatest deterrent effect of criminal justice is the threat of being caught, of being apprehended. If people think that they'll get caught when they commit a crime, then they can be deterred from doing it by the likelihood of being caught. But the Russians, I think the Russian soldiers don't expect to be caught. I think they expect to win the battle and to get away and to go back to Russia. So I would be quite skeptical about the deterrent effect. I mean, I would like to think that there is a deterrent effect of international justice. But I don't know. There's one final point about which I should say a word. The International Criminal Court can also exercise jurisdiction over the crime of aggression. There's a very good case to be made that Russia has committed the crime of aggression, as defined in the Rome Statute within Ukraine. But although the Court under the Rome Statute has a pretty broad basis of jurisdiction, first states that have accepted the court. So it has jurisdiction over the territory of the states that have ratified the Statute or that have made a declaration recognizing the jurisdiction of the Court. That's the case with Ukraine. They also have jurisdiction over the citizens of those countries, if they commit crimes anywhere. So to take the example of the People's Republic of China, the Court can exercise jurisdiction over a crime in the Rome Statute committed in China, if it's committed by somebody who's a citizen of a country that joined the Court, but not over people, not over that doesn't cover 99.9% of the people in China. But when it comes to aggression, the jurisdiction is much narrower. And this is a result of the efforts of Britain and France in particular, who wanted to reserve to the United Nations Security Council, the right to make determinations about the crime of aggression. I won't go into the details unless you really want me to. It's quite technical. It's quite technical and we don't need to know about it for the purpose of this discussion, except to say that the Court is unable to exercise jurisdiction over the crime of aggression and this conflict, because of the role of Britain and France. Other countries would have been prepared to accept a broader basis of jurisdiction, but it was Britain and France who wanted to limit the jurisdiction of the court in the way that's been done. So it cannot exercise jurisdiction over the one crime that would really be interesting to prosecute, which is the crime of aggression, the use of armed force on the territory of another state, which is what Russia has done in violation of the Charter of the United Nations. I'll stop there.

WANG Lin 48:18

Yeah, with this question is that because Russia do not accept the Roman Statue?

William Schabas 48:29

No, not really. Russia originally signed the Rome Statute. Russia voted in favor of the Rome Statute. For many years, the position of Russia with regard to the Rome Statute, and the International Criminal Court was better than that of the United States. But Russia, withdrew its signature after the United States had done this. The United States, Russia, and Israel all signed the Rome Statute. That doesn't mean they joined them. They were just signatories to the statute, but they didn't become parties. They did this preliminary step of signing it, which was a gesture of friendship towards the court, without accepting the obligations, but better than nothing. So, the United States did this. Russia did this, and Israel did it. The United States and Israel both withdrew, but Russia did not for many years. Then in 2016, when the prosecutor said she was going to be investigating in Crimea. Russia said, Okay, we're going to withdraw our signature as well. But even if they were still a signatory of the Rome Statute, they wouldn't have any obligations to cooperate with the court under the statute. But Russia is exposed to the jury are…… Russians I should say, not Russia as a state, but Russian soldiers who are in Ukraine can be prosecuted by the International Criminal Court for war crimes. That's what the prosecutor is investigating.

WANG Lin  50:13

Yes, very clearly, it solved my doubts. Thank you. And how do you prospect to the possibilities of the formal prosecution and case filing of Russia's possible war crime in Ukraine as the ICC, although that I already know, your position and opinions, so what's your prospect on this?

William Schabas  50:36

Well, they There are obviously big expectations that the prosecutor will take action with regard to war crimes committed in Ukraine. And a lot of money has been put in. The European Union, as you mentioned, in your introductory comments, gave, I think, €7.5 million. And there are also contributions in kind of personnel that have been sent from countries in Europe. And quietly, the Americans are getting money there as well, because they have various legal obstacles, but they're obviously supportive of this. I know you have a question on this. And we'll get to the American position in more detail in a minute.

So, there's the expectation that this will result in prosecutions. Now. I don't know that anybody would be justified in having high expectations for the activity of the court, because everything takes forever there. Everything takes a very, very long time. And it's difficult to identify who they would be going after, at the court. The gathering the evidence is not a simple matter. And so far, what we've seen from the allegations and from Ukraine's activity, is they've caught some prisoners of war, some soldiers who committed an atrocity. But this is not what the ICC is for. It has never prosecuted people at that low level, the ICC, the International Criminal Court, is there to prosecute commanders, leaders, generals, colonels, people in authority, who are directing these crimes, the isolated cases of a Russian soldier who raped somebody, or who targeted civilians, or who may have arbitrarily rape may have murdered a civilian or a prisoner. This is this is not what the court is for. And I think it's unlikely that they will prosecute such cases, they those absolutely belong to the Ukraine. So, this is the thing now, you know, justice is always unpredictable, they may capture a general or a colonel somebody in authority, they'll still then have to be able to demonstrate that the general either gave orders to commit atrocity crimes, or was, in some way tolerated them being committed. And this is not so straightforward, because often these crimes are committed by undisciplined soldiers, who are who are acting or not acting under orders, we don't know, we'll we don't have evidence of it. As far as I know, they're looking for it. You know, maybe they'll catch a Russian general. And the Russian General will agree to testify that he was told to break international law and target civilians. Maybe.

As for the bulk of the offenses, or I don't want to say offense, the bulk of the casualties. And this is according to the report of the UN High Commissioner for Human Rights. But it's also something I think that people know from the media are civilians, who were killed as a result of bombing or shelling, that is artillery bombardments, or bombs dropped from airplanes or rockets. And according to the Office of the High Commissioner for Human Rights, this accounts for the great majority of the civilian casualties. Those crimes are notoriously difficult to prosecute. And the examples we have of successful prosecution. Well, I don't want to say successful. There was a famous case at the Yugoslavia tribunal involving the shelling of cities or towns in Southern Croatia in the final months of the war in the former Yugoslavia in in August of 1995. And they captured some Croatian generals and prosecuted them at the court. They were convicted at the trial. But the conviction was overturned, was reversed by the appeals chamber. And one of the things that happened in between the judgment at the trial and the appeals chamber was that the lawyers for the militaries of the United States and the United Kingdom and Israel got active and started complaining that this was…… that the court had been too strict. That the that the Yugoslavia tribunal had judged the conduct of the commanders who were bombarding cities with rockets. And artillery had set the standard too high and had found them guilty because of that, and the appeals chamber reversed it. And it was the terrible message that the appeals chamber sent. But it was done at the request, let me say not at the request, because these were independent judges. But they delivered a judgement that was welcomed by the armies that are concerned about bombing and targeting cities, in particular, the Israelis, who have bombarded terribly Gaza on more than one occasion, with terrible damage, damage that's comparable to the kind of damage the civilian casualties that we're seeing in Ukraine, comparable in scale. Actually more severe. Because when Gaza has been bombarded by the Israeli artillery, the casualties have not been as numerous as they are in Ukraine. But the population of Gaza is 2 million people. And the population of Ukraine is 40 million people. So, the proportion is actually greater when Israel bombards Gaza. So, all of this is to say that those cases legally are going to be very hard to prosecute. And the assumption that, you know, they have their war crimes, we're going to prosecute them easily. These are by people who don't know the law and don't know how hard it is to prosecute these cases.

WANG Lin  57:17

Yeah, this is very clear. And Professor, I want to shift the topic a little bit to the ICC and China. We know in the media, especially in the Western media, there are a lot of discussions about the case about Xinjiang. Because ICC had rejected the calls to open investigation on the so called the genocide in Xinjiang in December 2020. But recently in June, a lawyer from British renewed calls for the ICC to open an investigation into the treatment of Uighurs and other Muslim groups in Xinjiang. He also presents some evidence to the prosecutors. There were also some citements about the Myanmar Rohingya minorities case with a comparison of the Xinjiang case. So, do you think the ICC will start the investigation? And also, we know that evidence is very important in all the international criminal cases. And there are also some very controversies about the evidence and affect funding in this context. So, I want to know your opinion, maybe you can combine these two questions together. Thank you.

William Schabas  58:30

Well, yes, I've been following this. And I remember when the when the ICC when the International Criminal Court issued its ruling about jurisdiction in Myanmar, this is this is the decision that the judges have the at the preliminary level, the pre-trial Chamber, made a ruling about three years ago, more than three years ago, I guess, about three years ago saying that the court could exercise jurisdiction over the crime of deportation, because they crossed the border from Myanmar, which is not a member of the court, into Bangladesh, which is…… it's an interesting creative argument that the judges accepted. But that has not been really challenged in a case.

So, this was, you know, when you follow court decisions, and when the prosecutor goes before the judges alone, without a defense lawyer on the other side, and says to the judges, here's what I think and the judges say, Yes, I guess so. There's no guarantee that's going to be upheld, when there's a proper battle in court. When you have defense lawyers who give the judges the opposite argument. I think it's an interesting argument, but I remember when it when it was decided I said, well, if they can prosecute it deportation in Myanmar, because people left Myanmar and went to Bangladesh. I suppose you could get some Uighur in China, who could get on a KLM airplane and fly to Amsterdam. And then they would cross an international border and claim that they were deported from China. So, it's theoretically possible. If that argument is upheld. It's absolutely possible that they could do this.

Now, when they initially tried and the prosecutor answered this in the in the report that it issued in 2020. They, the lawyers, I know the lawyer who did this in Britain, somebody I know very well. And he did it based on the idea that people were being deported into China, from Cambodia and from Turkmenistan, which are both members of the court. And the prosecutor said, no, that doesn't work, that's not the same thing. But I think what he'll do, what he is doing is arguing that there are people who are being driven out of China by persecution in Xinjiang. And that if they when they cross the border, when they're driven out, they go into a country that's a member of the court, according to the logic of that decision, then the court can exercise jurisdiction. Will they do it? You know, this is very hard to predict, because it's down to one single individual. You know, he has already about a dozen active situations, in different countries in different parts of the world. He clearly doesn't have the time and the resources to do things in all of those situations, certainly, judging by his predecessors, who as I've said, we're only able to do a few trials at a time. I would be astonished if he would do it. But it's also a clear we have a better idea now of the prosecutor’s political orientation. So, do you think that a prosecutor who seems to be oriented towards the policies of NATO might also welcome the chance to pursue someone from the People's Republic of China for violations of the Rome Statute? Yeah, maybe? Maybe. Get ready. He might do it because it's a political decision. And we know his political orientation. So yeah, I wouldn't rule it out. It's possible because the people who love him now, because of what he's doing in Ukraine, will love him even more, if he goes after somebody from the People's Republic of China. So, I don't know the answer to this. And I think that it's fraught with legal difficulties. But you know, you'll need some smart lawyers, if they go after somebody from China, but you have them. I'm sure you'll have good arguments.

WANG Lin  1:03:14

Yeah, the alert is received. We know that the evidence and fact finding in the international context is key to the international adjudicative bodies, like the ICC. In terms of the Xinjiang issue, the data and information manipulated by activists and scholars, like the German scholar and returns(1:03:35) on Xinjiang are also used by some Western government and the lawyers. So how do you view the credibility of those so-called evidence in those cases?

William Schabas 1:03:48

Thank you, you know, I've been studying all of the reports that have come out about Xinjiang from sources outside of China. I've never seen a report inside China. But the ones that I've seen are the ones by there was one…… by some lawyers in London, barristers in a law firm in London, who did an opinion about violations of international law. Well about genocide, essentially. And in their opinion, they said, yes, we have all these evidence of acts of genocide. The only thing that we're not sure about is whether it's the intent to destroy the physically the Uighur population in Xinjiang. You know, when they put that paragraph…… it's one sentence in the middle of this, this page, this document of many, many pages. But once you say that it means that you don't have evidence of genocide, because to have evidence of genocide, you have to have evidence of the intent to destroy the group physically. And the lawyer said they didn't have that. Then there's another report. It's not a report, there was a tribunal that was held by some lawyers in London. They called it the Uighur tribunal. And they issued a judgement last December. When they were doing it, I spoke to them they spoke to me about it because they wanted some advice about the law dealing with genocide, they issued their judgment, which made news reports that they had found that genocide was committed in China. But actually, when you read their judgment, four of the five acts of genocide, including killing members of the group, and imposing conditions of life calculated to destroy the group. They said there wasn't enough evidence, the only the only act of genocide for which they said there was evidence was the act of preventing births. And they referred to the studies that have been done by this guy, Adrian Zentz. But it's the weirdest reasoning that has no basis in any judicial decisions in any court cases. They said, because they acknowledge that actually, the Uighur population in Xinjiang is increasing. And the measures that have been taken that are alleged to have been taken by the government in China are lowering the rate of increase of the population. They're not preventing, because the impression that Zen's is giving people is that they are prohibiting Uyghurs from having children, but this is not the case. Uyghurs have had large families, and they still have large families. But they're smaller than they were because of the measures similar to the measures that China has imposed on its entire population for many years about family size. So this tribunal said, well, this is preventing births, because it's reducing the birth rate. But they still had the problem saying, so who was the victim? And they said, the victim are the unborn children of the Uyghurs, these are the victims of the crime? Well, this is a very bizarre theory is all I can say that the victims of the crime are people who haven't yet been born. This is absurd. It's the kind of thing you would get from some American fundamentalists, who are against the right of women to have abortion. There are plenty of them in the United States. So, they would talk about crimes committed against unborn children. But there's no authority for this being generous. And so, they don't have you know, what I'm saying is that even the bodies that have been charging China with genocide, they admit that they don't really have a good case. And they don't have strong evidence.

WANG Lin  1:07:55

Yeah, thank you, Professor, I will ask my last question, and then we will open the Q&A session. So, we talk about the role of the US the global north and Europe. So, by reviewing the evolution process of the ICC, we can see that there are selective investigations from the ICC on different targeted countries. For example, you can only investigate some specific countries where it is very weak to some other country conducts, and you have explained with us for some of the reasons. And one thing that we can observe is that with the many war crimes, lack of investigation and trials, like U.S. War conducts in Afghanistan, Iraq, Syria, and well, there are also some very politicized the issues like the rise of Xinjiang Uighur people have been pushed on the agenda of the ICC. So, you also mentioned in your previous publication, that the international justice mechanism are extraordinary expensive. So, then it leads to the inevitable result that was to focus the international justice upon crisis that was strategically important to the wealthy states. So, is that the reason that behind the imbalance of the distribution of attention and the resources of international justice, and how will this impact the ICC is judicial independence and impartiality?

William Schabas  1:09:25

Okay. Well, there are two parts to your question. One is about the resources of the prosecutor and the ability to investigate one of the situations that I have been very, very excited about was the investigation by the prosecutor into the situation in Palestine. And the prosecutor has the resources to do that. The prosecutor has a lot of money, even without the voluntary contributions from the rich states, because the countries that are members paid fees they have….. The prosecutor budget of the court is €150 million every year. So, the prosecutor doesn't have any problem finding the resources to investigate Palestine. But he's clearly taking decisions that have a political orientation and diverting the resources to Ukraine, for example. We shall see, we may be pleasantly surprised to see him investigate Palestine. But at the same time, you know, he's making decisions that are not reviewable, that are political, but he said he has the money to do it. It's a question of the priorities. The way he directs them……

As for the United States, I mean, it's a fascinating subject, watching the United States and the International Criminal Court, because its position changes all the time. And sometimes it's enthusiastic about the court, and sometimes it's trying to sabotage the court. And we can see these periods. Sometimes it's excited about it. And sometimes it's hostile to the court.

So now, there's a sense that it's friendly to the court, but it has a problem with legal consistency, because it makes arguments against the court that ultimately make it difficult for us to argue for the things at once at the court. Let me give you an example. The United States has claimed since the time the Rome Statute was adopted in 1998, that the court could not exercise jurisdiction over a citizen of a country that hadn't joined the court. The United States has said this in debates, public debates, its position over and over again, has said this. If that's true, it means that the International Criminal Court cannot exercise jurisdiction over Russians in Ukraine. Now, nobody agrees with the United States about this. It's wrong in law. I think everyone agrees that if Ukraine can prosecute Russians for committing crimes in Ukraine, which it can, that it can also confer that same jurisdiction, which it has, by virtue of its own sovereignty, it can surely do that to an international organization. So, it's a stupid argument that the United States has been making. But now, it's an obstacle for them making the argument that the Russians can be prosecuted for war crimes in Ukraine. I've been asking my colleagues and friends in the United States who are generally big enthusiast for the court. I'd say, so has the US changed the position? And they say, well, it's not clear. The United States is not entirely clear whether it's changed its position or not.

So, it's interesting to watch the confusion in the United States about the International Criminal Court, basically, the United States going right back to Nuremberg, and Tokyo likes international justice, if it can control it. When it can control what a court is doing, the United States, you have no greater enthusiast for international justice than the United States of America. So, when they think they don't control the International Criminal Court, they hate it. And they attack it. And that's why they attack the last prosecutor because she was doing things that they couldn't control that were harmful to their interests. And right now, the United States seems to be confident that the court will actually pursue the interests of the United States. The problem is that there are a lot of people in the world who look at an institution and they and I've always said this, they look at the United States, and they say, if the United States hates the court, it must be doing something right. And so, they like it. But if the United States loves the court, then they get worried, because it means that the court is following the agenda of the United States. And I fear that that's what's happening right now.

WANG Lin  1:14:29

Yeah, thank you, Professor. Do we have about nother 10 minutes to answer to your questions from the audience? Yeah. We have two questions from the audience. The first one is from CUI Yan and that is war crimes relates closely to armed conflicts. Regarding a possible escalated cross-strait conflict that is between Mainland China and Taiwan, as pushed by us Speaker Nancy Pelosi visit to Taiwan less than 12 hours ago, the U.S. official often used protection of democracy as its argument to intervene militarily to other countries. Could protection of democracy as its argument to intervene militarily? Or could protection of democracy be used as a legal basis to use force under the international law? Will that constitute a crime of aggression according to the Rome Statute?

William Schabas 1:15:28

It's a very interesting question, when. And thank you, CUI Yan for asking it. When the amendments to the Rome Statute were adopted in 2010, as part of their review of the Rome Statute, the United States argued for a definition of aggression, that would recognize the legitimacy of the use of force when its purpose was they said, to prevent one of the crimes in the Rome Statute from being committed. It was kind of this notion of humanitarian intervention. What's the idea that which the United States has defended that when some international crime is being committed, they may have to intervene militarily to prevent it, even when they don't have the authorization of the United Nations Security Council under Chapter Seven of the Charter of the United Nations. So, the United States attempted to obtain this recognition at the conference when these amendments to the Rome Statute were adopted, but it failed. It failed in doing it. And that issue has returned now, in the case, that's currently before the International Court of Justice that was filed by Ukraine, against Russia. It's a very curious legal argument based on the Genocide Convention, where Ukraine is saying that Russia is using the argument of genocide to justify the use of force in Ukraine in violation of the Charter of the United Nations. And they're asking the court to rule that they can't do that. So, we've had, we've had mixed attitudes to the and there are some countries New Zealand recently intervened in the case of the court, they submitted the document a few days ago that said that they thought that you could intervene without authorization of the Security Council in order to prevent genocide. Now, your question was not about genocide, nobody is alleging that genocide is taking place in Taiwan, or maybe in in China. That's another question. But if you want to talk about a potential armed conflict relating to the sovereignty of Taiwan, I think that if the United States were to intervene, they would claim that they were doing it at the request of the of the government of Taiwan. So that would be that would be an argument that they would use to, to resist the charge that it's a violation of the charter? I think that's what they would say. But no, there's no basis in international law anywhere for using force outside of your own territory, in order to protect democracy. Absolutely not.

WANG Lin  1:18:29

Thank you, Professor for your answer. We have another question from SHI Xiaojuan. It is about another big news this week. That is on July 30th, the US killed the leader of aI-Qaeda, Ayman al-Zawahiri, in a drone strike in Afghanistan. As we also know that days before the withdrawal of US forces from Afghanistan last year, a miscalculated US drone strike killed 10 innocent people in Kabul, including an aid worker and seven children. Were there any war crimes involved in those two killings in the international law?

William Schabas 1:19:07

Yes, well, to some extent, you have to know the nature of the conflict to make a determination like that I would need to know all the evidence. I'm not an enthusiast for these drone strikes that assassinate people. The United States also did it to a leader of Iran a few years ago at the airport in I think in Baghdad. But what I get more excited about is when innocent civilians are killed. And there's a lot of that happens. And we see it happening in Ukraine and it breaks our hearts to see innocent civilians who are not participating in the conflict being killed. It breaks our hearts when we see it in Ukraine and that should break our hearts when we see it happen in Afghanistan. Unfortunately, the laws of armed conflict what we call international humanitarian law tolerates a lot of killing of civilians, to the extent that they are near or associated with lawful targets. And this is one of the very unfortunate aspects of international humanitarian law. It doesn't do a good enough job in protecting civilians. And so that's where we have an issue about whether or not these would be war crimes. They're absolutely human rights violations. They're violations of the right to life, but whether we can prosecute them for war crimes is a more difficult and quite tactical question that it's impossible to give a firm answer on without knowing more facts.

WANG Lin  1:21:03

Thank you so much, Professor William Schabaz. This is really an amazing talk. And I think we learned so much from you in this past one hour. And thank you again for all your insights and a very generous sharing.

William Schabas 1:21:17

Thank you. It's my pleasure talking with you. Byebye.