Philippe Sands, Mark Freeman and Carlos Castresana.
The Rafael del Pino Foundation organised on 26 June, the dialogue entitled ".The Peace or Justice dilemma in Ukraine"Philippe Sands, Mark Freeman and Carlos Castresana.
Philippe Sands is Professor of the Public Understanding of Law and Director of the Centre on International Courts and Tribunals at University College London and a lawyer. He has been involved in leading international trials at the Court of Justice of the European Union and the International Criminal Court in The Hague, including the cases of Pinochet, the Yugoslav war, the Rwandan genocide, the invasion of Iraq and Guantanamo Bay. He is the author of the essays Lawless World, on the illegality of the Iraq war, and Torture Team, on the Bush administration's use of torture. He is a regular contributor to publications such as the Financial Times, The Guardian, The New York Review of Books and Vanity Fair, and a commentator for CNN, MSNBC and the BBC World Service.
Mark Freeman is the founder and Executive Director of the Institute for Integrated Transitions (IFIT), a non-governmental organisation that has just celebrated its tenth anniversary as a global innovator in peacebuilding. Freeman is a recognised expert on political transitions and high-level peace negotiations, having worked in numerous countries, including Ukraine, Venezuela, Colombia, Afghanistan, Bolivia, Bosnia, Burundi, Gambia, El Salvador, Kenya, Morocco, Sri Lanka, Syria, Tunisia, Turkey and Zimbabwe. Prior to founding IFIT, Freeman was Head of External Relations and a member of the management team of the International Crisis Group. He also helped launch the International Center for Transitional Justice and was its first Director of International Affairs. Freeman is the author of several publications on international law. His most recent book Negotiating Transitional Justice (Cambridge, 2020) draws on his years as an advisor to the Colombian peace talks in Havana.
Carlos Castresana Fernández is a member of the Spanish Prosecution Service, UN Commissioner against impunity in Guatemala with the rank of UN Under-Secretary General (2007-10) and Spanish Candidate for Prosecutor of the International Criminal Court (2020-21). As Prosecutor he has been posted in Madrid and Barcelona, in the Anti-drug and Anti-corruption Prosecutor's Offices, the Supreme Court and currently, in the Court of Auditors. He is the author of the complaints that led to the prosecutions of Oubiña, Jesús Gil, Berlusconi and Pinochet. He has received several honorary doctorates and awards such as the Legion of Honour and the Order of Civil Merit.
Summary:
On 26 June 2023, the Rafael del Pino Foundation organised a dialogue entitled "The Peace and Justice Dilemma in Ukraine", with Philippe Sands, Professor of the Public Understanding of Law and Director of the Centre on International Courts and Tribunals at University College London, and Mark Freeman, founder and Executive Director of the Institute for Integrated Transitions (IFIT).
Mark Freeman: The actions we take today and tomorrow in the area of international criminal justice should be taken in a way that allows for peace in Ukraine through forward-looking negotiations. We do not know how this war will end. Just look at what has happened in Syria.
There used to be a tendency to think in terms of two very clear options: absolute impunity or condemnation. Transitional justice is in between these two extremes and includes things like truth and reconciliation commissions. It is part of how we deal with justice issues in peace negotiations. The Minsk negotiating documents for peace in Ukraine say nothing about accountability, only that there would be an amnesty. The EU would support this amnesty. In Colombia, on the other hand, they concluded that there would only be peace if there was accountability. You have to take into account both the victims and the details, that you have to make trade-offs. Very complicated agreements have to be reached, but in this context it is very difficult. Creative formulas can be found, but it is not always possible.
Back to Ukraine, after the invasion by Russia. In the first weeks it was very important to see what was being tried since 2014, where Russian and Ukrainian representatives met, but did not achieve much. After the invasion it was necessary to assess what could be achieved after the invasion. Now there is no status quo to return to. Negotiations going forward are going to be difficult in terms of justice. Decisions that have been taken in the interests of accountability should keep the door open for negotiations in the future. What is true today may not be true tomorrow. If I believe I can win the war I am not interested in negotiating, but if the situation evolves, my interest in negotiations may increase or decrease. Things change on the battlefield, there have been nuclear threats, but there are different levels in this war.
Regardless of how this war ends, five years from now there are going to be tremendous challenges in Ukraine. Challenges of cohesion, disarmament, social separations, and justice is going to have to fit into this process. Ukraine is not an island, there are different kinds of negotiation and conflict resolution, some things will happen within Ukraine, some things will happen between Ukraine and Russia, and then in Europe we have to talk about a new security architecture. How do you organise these efforts? Because they can facilitate, hinder or impede efforts to achieve peace through negotiations.
Philippe Sands: This is a very complicated situation, there are no simple answers. Countries are a bit like families. Things happen, some good and some not so good. And all families sweep the not so good things under the carpet and try to move on, but in the second generation they come back. In the case we are talking about, there is no perfect solution for everybody. It depends on culture, circumstances and facts. It is very difficult to know what to say to a person whose family has been killed. On the issue of Ukraine there are many opinions and different levels of complexity. In this kind of situation it is very important to know how the other side of the debate approaches this. It is very easy to be in Madrid and think about what kind of results we would like in the future.
The situation is a crime of aggression. There was no justification for Russia's use of force, so something must be done about it. But who are we in Washington, London or Madrid to lecture others on crimes of aggression? The Iraq war was illegal, but no one has been held accountable. When it comes to justice, we are geniuses of double standards. These are the complexities we have to manage because for every person on one side of the negotiation there is another person on the other side. The situation in Ukraine cannot be allowed to continue. I would have put infantry in Ukraine and set up a no-fly zone. But Putin is using the same arguments that others used in relation to Iraq. So we have to be a bit more humble about how we handle these kinds of issues because we have little moral authority. We have not applied to ourselves the standards that we apply to others.
This is part of a long-term game. In 1945, countries said there would be a different kind of world. The structures we have are taking their first steps: the courts, the laws, the principles. So we are developing a series of structures that will help us with peace and justice, but we have to address our own reality. If injustice is still there, it will eventually overwhelm us. Ukraine is a state that is on the receiving end of Putin's attacks and has put peace and justice at the epicentre. The progress that Ukraine has made, the Russian response is that at the negotiating table all this goes away or we don't do it. So we have to decide peace or justice, but at what price. I don't believe in peace at any price. The complexity of this issue is increased by our double standards. The International Court has not investigated what happened in Iraq or Afghanistan. They did not because we know where the money comes from, where the power lies. Having a prosecutor at the International Court who takes photos with Western justice ministers and seeks to obtain funds from them does not help to bring the courts to one side of the conflict.
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The Rafael del Pino Foundation is not responsible for any comments, opinions or statements made by third parties. In this respect, the FRP is not obliged to monitor the views expressed by such third parties who participate in its activities and which are expressed as a result of their inalienable right to freedom of expression and under their own responsibility. The contents included in the summary of this conference are the result of the discussions that took place during the conference organised for this purpose at the Foundation and are the sole responsibility of its authors.
