 transitional justice in Ukraine with Dmitry Koval, Dmitro Koval, who joins us from Kiev right now today here on Think Tech. Welcome to the show, Dmitro. Thank you, Jay. My pleasure to be here. Well, you know, you're right in the middle of it, or at least in the northeast middle of it. And I would like to talk to you about all the various factors that point to the future. And, you know, get your opinions and perspectives on what is happening and what will happen. So there are some things that are clearly optimistic. And I think Volodymyr Zelensky has to get points. He's been a very good strategist, and he keeps on doing the right thing. And you've got to give him credit for getting as far as he has defending Ukraine and, in fact, advancing back on the Russians. But what do people think about his strategical capabilities? It's hard to say just like that what they think about his strategical capabilities, because I would say that there are two pictures of Zelensky, at least two for now. The one is the president Zelensky, the president during the peacetime. And probably many considered him as not the best president or president with his own flaws. But there is also this picture of Zelensky during the wartime. And this picture for many is very positive, since he was able to hold for so long against Russian army. And now he is basically moderating. And he is the one who leads the counteroffensive against the Russian forces. And also he represents Ukraine on the international arena really brightly. You see all those speeches in different parliaments. You see how he energizes the West and the whole international community to support Ukraine, but not only to support Ukraine, but also to support democracy, support human rights, and act against aggression and totalitarianism. So that's definitely impressive. And for these he receives his positive feedbacks, not only from Ukrainians, but also from Europeans and Americans and many other nations. You know, he has been successful in bringing the EU together behind him and bringing the US behind him and sort of galvanizing NATO behind him. But you know, we live in a world of change, Dmitryov. Everything changes. It seems to me that things change more quickly now. We're not used to all the changes and the rapidity of the changes. And so you have changes among the countries in the EU. You have issues, for example, in France with Marina Le Pen and her friends. And now you have a very strange election in Italy, which really should have learned its lesson in World War II, but didn't. And now it's moving to the right through a more fascist approach. And although she seems to have changed her tune through the course of her campaign, Georgia Maloney seems to be kind of on the right side of things and tending to autocracy and, if you will, fascism. And this is not good because she has made statements. She's trying to take them back now, walk them back, but he's made statements that indicate she wants to pull her support from the EU, from NATO, and from Ukraine. So those two countries and their significant countries seem to me to be problematic and stand in the way of optimism about EU and NATO. What do you think? I would not pretend that I am an expert in international relations and politics in France and Italy, but from my standpoint, it's too early probably to call those elections a defeat of Europe or the huge issue for the security in Europe. First of all, in France, Le Pen lost her elections and it was not the first election that she lost. It was the second election basically that she lost to Macron. And there were more that she lost to other political forces, political parties and figures. So it's a big issue whether she survives these laws and actually continues as one of the leading politicians in France. So we'll see what happens with Europe. But for now, there is, I would say, a centrist coalition in the French parliament. There is a president who also tries to portray himself as a centrist and we have, I believe, quite strong support of France. And when it comes to Italy, you very rightly noticed that the winner of these elections changed her tone throughout the election and now she sounds more like not ultra right, but just right, which is, of course, better than it was before. Moreover, in Italy we see quite a dramatic change in their attitudes towards Ukraine and Russia. One of the things that I should mention here probably is that three regions of Italy formally recognized Crimea as part of Russia. So contrary to the Italian position, they said that Russia legally occupied or legally attached Crimea to its territory. But now after February 24, they changed their position. So this dramatic change shows us that even those who earlier sympathized to Putin, they are now more, the war opened their eyes, I would say, and they now see much clearer than they saw before. So maybe this change to the right in Italian politics would not mean as much as we now think that it might mean. I mean, we'll see again. We'll see. In Germany, I admire Germany. I certainly admire it while Angela Merkel was there and I admire their leadership, if you will, the part of Ukraine. And in dealing with the migrants, that was a very tough issue for them. But it's going to get cold, Dmitry. It's going to get cold and there's energy problems and heat problems in Germany and other countries in Western Europe. And do you think that that affects the calculus here? Will that affect how the EU sees this issue when they start getting cold and they don't have enough energy? First of all, I would not say that Germany was leading European efforts of the support towards Ukraine. I don't want to sound ungrateful. Definitely, Germany did a lot for supporting Ukraine, both in terms of financial support, in terms of hosting our people who left the war and also providing some materials, some weapons, etc. But at the same time, there are lots of issues that are unresolved in terms of our relations with Germany. For instance, we are asking for some machines, some military vehicles that we are not receiving for quite some time. There are also some misunderstandings with regards to energy, security of Europe. Ukraine insisted that this North Stream 2 is a bad idea. It insisted for quite some time on this, but we were not heard in Berlin. So, there are quite a few issues that don't allow me to say that Germany is leading the efforts of the European Union. I would say that rather Baltic states or Poland are leading those efforts. Speaking about this winter, from what we are hearing from Schultz and other European politicians, Europe prepared itself to call the winter. In some countries, the use of natural gas from Russia dropped 50% by now. That's a really dramatic decrease. In other countries, there are strategies in place on how to deal with the situation that Europe will face this winter. There are some contracts with Qatar, with United Arab Emirates. There is an increase of gas supply from Norway and the United States. Hopefully, this will help to survive this winter, not, of course, develop as it was last year, not have the same level of comfort as it was before, but still, in terms of survival, in terms of some basic needs, they will be covered. That's for sure. How Tony Blinken was talking about international relations a couple of days ago on Sunday, and on 60 minutes, if you ever watched 60 minutes on CBS, American CBS. But I'm not sure that I get that he is doing, and that Joe Biden is doing, what we would have expected in terms of getting the funding, getting the weapons on to Ukraine. How do people feel about their follow-through on those assurances? The mood changes all the time. During the first weeks of the war, there was this expectation probably unreasonable that United States will support Ukraine in all possible ways, including boots on the ground. But realistically, many didn't expect this to happen, because that would provoke even more aggression, as some say, from the Russian side, and that would maybe even end up in the Third World War. But this being said, the support that we are receiving from the United States is indeed huge, and people in Ukraine appreciate that a lot. They notice that they know about this, they know about the financial support, they know about military support, political support. So I would say that right now, the consensus that the United States is doing its best. Of course, with some weapons, with some systems, with some missiles, we would like to have them faster, but apart from the political side of these decisions concerning the supply of missiles, there is also a logistical issue. Sometimes we underestimate the logistical difficulty that any army, any side would face in delivering heavy machinery, heavy weapons from one continent to another. So I believe that on the balance, the United States is doing pretty well. We want that to continue, if not increase. But looking at Putin, we always need to look at Putin plus he's a psychopath. I mean that in the nicest possible way. So the first thing is he seems to be losing the support of the Russian people. The draft isn't working well. It's not organized. It's an administrative fiasco, and a lot of young men are opposing it and taking steps against it and leaving the country, as they have been doing since the war began. There are protests and the protests that existed at the beginning of the war look small now because the protests are much more widespread in Russia outside of Moscow, for example. And Putin, there have been calls in the western media for Putin to step down. In fact, reporting that there are those in Russia who would like to see him step down, that he's done. He's put a big bet on this adventure in Ukraine, and he's lost it already. Of course, that may not be exactly consistent with the reality, but I wonder what your thoughts are. Just how do people see people in Ukraine and for that matter in Russia? How do they see Putin and Putin's future as the leader of Russia? You know, the territory where I can easily fall into wishful thinking, though I will try my best not to do that. First of all, of course, Putin experiences some troubles in drafting, some troubles in supplying the newly drafted to either weapons, even with some basic weapons or bulletproof jackets or Kalashnikovs or something like that. There are problems even with his basic stuff. But I can't say right now that he will face even larger protests from Russian people and that would result in him resigning. It's really too early to call. It's hard to predict what will happen next. But I just want to highlight one tendency here. We should not try to think about those who are living in Russia right now as the supporters of democracy or as the opposition to Putin. Many of those who are living right now, they are not in opposition to Putin. They are not against this, as they call it, special military operation. They are living because they do not want to be killed. That's the explanation for many. I do not say that this motive explains the behavior of all those Russians who are living right now as territory of their country. But what we are seeing in different charts, telegram channels, Facebook groups, etc., many Russians who are living, they ask questions like, should we put a Z symbol on our cars or it's better to get it away from our car? What should we say to the border police? Should we say that we support Russian forces or we should rather keep quiet on that? There are all sorts of these discussions between the Russians themselves, those Russians who are waiting on the queue to leave Russia. My point is that we should not say that Russians who are leaving, they are in the opposition and that they will not return and gladly embrace Russia after the end of the armed conflict, which we are having now on the territory of Ukraine. But anyway, the brain draw that we are seeing in Russia will definitely have its impact on the Russian economy and the potential of Russian development. But for Putin, it's more about, right now it's more about a more, let's say, short-term goals. He's not thinking about the decade or two decades from now. He's thinking about a really very short-term result that he wants to achieve. For instance, to stop Ukrainian counteroffensive or to conquer the rest of the Donetsk region, which is still under Ukrainian control because almost 50% of the territory of the Donetsk region is under Ukrainian control even now, after he proclaimed that it's the primary goal of his military operation. So for these causes, he may mobilize every portion of resources that he possesses and because of that, he can just ignore the long-term consequences for the economy or for the country that this brain and this migration from Russia causes. What about these elections, these sham elections that he's set up in Donbas? Is anybody respecting them? Are people voting? How are they voting? We see a lot of videos from the occupied territories showing that usually the members of either occupation forces or members, some collaborators from the Ukrainian side, those who decided willingly to cooperate with Russia, because of course, as in any other situation, there are those who either think alike with the Russians or accepted some benefit that Russians propose. So we are seeing that those people are going around cities and they see just silence, so they can't reach to anyone on the occupied territory and to persuade them to vote. It's actually not a vote in its referendums, so it's the quasi-pull on whether those regions want to join Russia. But definitely it's not about people voting, it's just about creating the picture for own audience, for the internal audience of Russian Russians and for maybe some foreigners that would later support Russian position. There is no credibility of any kind behind this election, so it's not about credibility, it's not about legitimacy. It's rather about just a TV picture that will be shown for some world politicians and primarily for Russians themselves, just to show that Russia is facing this huge popular support on Ukrainian territory. So that is it. It's not a real referendum, it's just a mock referendum that Russia organizes. You know, over the last few weeks with Putin's various strategical failures in Eastern Ukraine and his failure to advance into Western Ukraine and a combination of the very brutal things that he's done, and I want to talk about that separately, he seems to have lost any remaining influence, any remaining support from a lot of people who were supporting him. I mean, it was really quiet at the United Nations, and in fact the Russian ambassador left. Was it the Russian foreign secretary or whoever it was? He left immediately after his remarks and his remarks didn't get much of a reception. Likewise, Xi Jinping is not particularly thrilled with the way things are going and he's taking steps to distance himself from Putin. And when you see the mass graves turn up, when you consider Bukha and all those other incidents and the demolition of so many residences and apartment buildings, and you connect all the dots on that, what you have is a Russia that's hard to be sympathetic with, and it's getting worse. Don't you agree? I mean, Putin is losing confidence all over the world. Is he not? It looks like that indeed on the meeting of the Shanghai Organization of Cooperation he faced rather cool reception, not only by Xi Jinping but also by other leaders of the organization, even leaders from the states that he likes to see as his vessels, so the state that he never basically thought seriously about, like Kyrgyzstan or Tajikstan or some others. So indeed, he loses confidence of those who at first decided to wait and see what happens. But it's again probably too early to say that Xi Jinping turns his back on Russia. He probably would still play this game with Russia trying to receive as many benefits from the cooperation like resources or cheap goods that can come from Russia, and at the same time he won't go all in in supporting Russia, at least in the nearest future. So Putin is losing confidence that I agree, but I can't say that there is a dramatic change in the politics and perception of the leaders of such countries as India, China, Brazil, South Africa or others that are in the same league with Russia, let's say. Thank you. One last point probably, you asked about this sympathy that you can't feel towards the mass murderer, the person who organized the mass atrocities all over Ukraine. I wish it is easy like that, but probably in many situations world leaders, especially those who are ruling their countries for almost decades, they choose to, formally they choose to close their eyes on such situations. Russian mass atrocities may be the most brutal in the modern history, but at the same time there are the examples of brutal crimes committed against other peoples. Even Russians, they committed really brutal crimes in Syria and look how it's influenced the picture of Putin in the world. He was perceived rather as the guy who was able to stop United States invasion in Syria, the guy who helped his friend to win in this revolution, our spring revolution in Syria. So mass atrocities committed in Syria didn't lead to the loss of his reputation in the world and he was still sympathized by many, including in China and in Chinese leadership and Chinese media. So while I agree with you that from the normal person perspective, it's quite hard to sympathize Putin or any other civil or military commander in Russia, but from the geopolitical point of view, it's not such a big problem for many leaders. Well, thank you for that. I think we have to take into account the fact that Putin, like Hitler, tries to secrete what he's doing and deny the war crimes, deny the atrocities. Just like Hitler didn't talk much about the concentration camp, that was a big secret for years. And it was only after the Allies took Germany and the Russians for that matter took East Germany, then it came out what Hitler had been doing. So I think we have to realize that for a lot of people in Russia, they don't know because Putin suppresses the information. And then for the outside, he denies it. So you're left with a certain level of confusion about what he is doing. I remember early on in this invasion, there were virtually thousands of people, not limited to Project Expedite Justice, but from various NGOs who were investigating war crimes, who were in the country investigating. It struck me that, gee whiz, isn't all the evidence on videotape anyway? Can't we just prove that by playing the tape? Can't we go to the Hague and the International Court of Justice and show them the tape? Is this kind of investigation necessary? And what is happening right now with the investigation of these war crimes? Because it seems to me that we find out about more war crimes every day. That's true. We really find out about more war crimes every day. But that's because thousands and thousands of war crimes were committed in Ukraine during these first seven months of the conflict. So what is going on is that Ukraine is doing its best in documenting war crimes was on the side of the government, on the side of the non-governmental organization, civil society. We collect this information for several purposes. The first would be national or domestic prosecutions. That's the biggest portion of the text that we have documented so far will go to the national courts. But also there are some evidence, some portions of information that will go to international criminal court or to the other national courts that can act on the basis of the so-called universal jurisdiction principle, which means that they can prosecute crime that was committed anywhere in the world. So some crimes would be definitely investigated. Either by foreign courts, foreign investigatory authorities or by the ICC. And also there is this idea that documenting helps to create the historic record of what is happening. And this historic record may be used on the later stages for this building process or some kind of transitional justice mechanism like trust commission or fact-finding commission or something like that. So there is also this reason why documentation of crimes that are being committed and that were committed in Ukraine matters so much. You know, one of the other issues that has been examined lately is in the investigation of what happened in this country on January 6th. A lot of people are involved. It was a very, you know, broad and deep conspiracy involving a lot of people. And when you have that, and this is akin to terrorism around the world, technology can help. Social networking analysis of telephone calls, text messages, any kind of communication which leaves a record can be used to connect up the individuals who were involved in the conspiracy. And I suggest at least to me it would seem that the same kind of technology, the same kind of methodology would also apply to what Putin has done and is doing in Ukraine. Yes, there are people with names out there. Yes, they communicate with each other. Yes, that communication is somewhere. It's in a record somewhere. And if you can find it and get it together and apply this artificial intelligence, social networking analysis, you can establish who was involved in the initiative to conduct more crimes and atrocities. Is this happening? Yes, that is happening. Both again, civil society and governmental officials, they are having some successful stories of identifying the perpetrators of searching crimes. There are even finished cases with judgments in the Ukrainian judicial system where prosecutors were able to identify the perpetrators and persuade the courts that those same perpetrators committed war crimes. So there are successful stories for sure. But again, there are thousands and thousands of war crimes that were committed during these first seven months of the conflict and many more will be identified or we will get to know about many more crimes in the nearest future that we can be sure about as well, unfortunately. So it's hard to build each and every of these thousands of cases. That is why it will take quite some time, years, I would say, to turn each stone and to prosecute each and every crime. Mitro, are you involved in that effort now? Will you be involved in the long term over those years and years of investigation and prosecution? I've been working with war crimes documentation since, I would say, 2015. And one of the organizations I work with in Ukraine was the first one who responded to the new phase of Russian invasion into Ukraine. Since February 24, we started documenting war crimes and other international crimes that Russia was committing in Ukraine. So yes, I am a part of this and I am taking part in documentation in analysis of the information gathered by documentators. But also I consult a different state agency like security service of Ukraine, which is heavily involved in investigation of different crimes committed in Ukraine. And also I consult office of the Prosecutor General when it comes to a correct qualification of crimes, legal argumentation, etc., etc. So yes, I am involved and that is my plan to stay involved for the next couple of years. Good for you. I'm sure there are many people who will come and help you. For example, Harold Koh, I don't know if you're familiar with that name. He was the Dean of the Yale Law School until a few years ago and he presented himself to the International Court in Hague to organize the war crimes prosecutions that are taking place and will take place in Hague. And I wanted to ask you about that. So you mentioned before that at the moment there are national prosecutions, national being Ukraine, under the sovereignty of Ukraine or the court system, the laws of Ukraine, the Ukraine prosecutors and judges and juries, if there are, we'll hear these cases and render decisions on whether there were war crimes and, you know, a determined punishment. Are those cases happening now or is that something that won't happen until the future? Domestic cases are happening now and international cases will happen in future. As we know from the history of the International Criminal Court, for instance, it takes indeed years for this court to investigate, prosecute and later come up with judgment when it comes to complicated international crimes. So I do not expect International Court to rule on any issue regarding Ukrainian situation in the next few months or even years, but at some point we will definitely have ICC rulings, either arrest warrants or judgments themselves. So you have to have the person within your physical control to do a domestic prosecution or can you do it in absentia? It's not necessary. We can do the in absentia trial, so-called. So those are the trials when you do not have the physical presence of the person in the courtroom, but in the International Criminal Court you do need to have the physical presence of the defendant in the court to proceed with the prosecution. And how about the countries that will prosecute under universal jurisdiction? Does that assume that they have the body? It very much depends on each and every country. So in every country the legislation may and is different, but usually you do need to have the perpetrator on your territory to start the case, to even start the case, and certainly to have the court proceedings. So is the definition of war crime the same domestically and in the Hague and in these Universal Jurisdictions or does it differ? And how do you determine what what form would be most appropriate as far as one side or the other is concerned? I didn't want to dive into heavy legal discussions since there are many issues with regards to Ukrainian national legislation, for instance, concerning this comparison between Ukrainian legislation and Rome stated, for instance, of the International Criminal Court. But generally speaking, the legislation on war crimes is very similar in average jurisdiction, including international jurisdictions. You know what thing we saw and we still see these videos of Russian bombs and missiles blowing up residential buildings, shopping centers, all kinds of non-war facilities within Ukraine just destroying the country. At the same time, we hear stories about murder, back of the head murders and dishes and rape among women and girls, really horrible, horrible things. So I can understand shooting someone in the back of the head, somebody defenseless, doing a brutal exportation of that person into Russia, into some camp in Russia that would, to me, would fall within a war crime, rape and assault of women and young people and so forth. All that stuff, electrodes, we've seen pictures of electrodes and torture, which the Russians apparently conducted in a number of places. Now that I see as war crime, but is that different than blowing up residential buildings and apartment houses? Or is it the same? Is blowing up a residential building and apartment house a war crime also? It depends on the context, because in some situations, it's not against the International Criminal Law to cause some damage to residential buildings or, in other words, to civilian objects. For instance, we can imagine the situation in which the civilian building is being used for military purposes. For instance, the platoon of the enemy is deployed in the civilian object. This basically turns the civilian object into a military one and into a legal target for the other side of the conflict. So blowing up the civilian or residential building may be a war crime if it's done on purpose, and if the perpetrators understood that this object is civilian in nature and it is not being used for military purposes. That would be then a war crime. Also, there is this idea of proportionality. So even if there are some military objectives close to the civilian object, but if those military objectives are not important enough, at the same time in the civilian building, for instance, in the residential building, you have lots of civilians living or hiding, you can't just target the whole area and say that, you know, what somewhere there were some soldiers or combatants, and that's why I covered the whole district with my rockets with my shells. That would not be what IHL prescribes, and that would be a violation of the laws and customs of war and the war crime, because it's such a strike, it's un-proportional. So it depends if I put it shortly. Of course. One last thing I really appreciate you spending the time with me is that Putin early on made an implicit threat to use nuclear weapons, and he's repeated that threat more recently. We've also seen, what shall I say, irresponsible conduct around Zapparizia, the nuclear power plant there in the south, which could affect all of Europe if it blows up. How concerned are you that Putin isn't bluffing that he may actually use tactical weapons or other nuclear weapons in order to make his point and show that he's the boss? How concerned are you or not? I'm concerned. I think that it may happen. Putin is the type of individual that can't accept losses as he sees it, and he can't recognize his own mistakes and misdeeds. So because of that, he's now facing what is called in chess the situation in which every his move makes his position worse. And that's why he may be ready for really a radical decision like the use of tactical nuclear weapon. Maybe not against the populated area, maybe against some unpopulated area just to send the signal. But I am concerned that this might happen. I can't speak about the level of probability of such a course, but definitely it's something that the United States and Ukraine, of course, should consider as a possibility. One last thing, Dmitry, you're very knowledgeable about these things, and I greatly appreciate that. What were you doing before the war started? And why are you invested in these things now? What makes you so dedicated to helping Ukraine and helping the cause and investigating war crimes for that matter? Before the war, I imagined my career as a career of academician. So I worked on the PhD devoted to international humanitarian law, and I defended my PhD thesis in March 2014. Just a quick reminder, March 2014 was the month when Russia started its operation in Crimea, started the occupation of Crimea. So just in a few days, my dissertation, my PhD thesis, turned from purely theoretical to the very practical one. And that was the point when I decided that it's a time that needs not only my academic comments and academic perception approaches, but also some practical advices and some actions. So that's how I became invested in the documentation and consultation of different agencies on the issues of IHL and war crimes. You mentioned in 2014 that there was a movie about it. I think it was something about the winter war or words to that effect. And it was a stirring movie for sure. It was a stirring story. It was an amazing heart-rending story. I very much recommend to watch this movie to those who haven't done it yet. What I'm really getting at though is that this is an even more stirring story now by far. And I would hope that there are people out there making more movies. Are they? We'll see. I hope so. Imitro Kovale, a member of Project Expedite Justice, an active in the investigation and prosecution of war crimes in Ukraine, who has been so helpful in answering my questions and in discussing the current state of affairs there. Thank you so much, Imitro. Thank you. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter, and LinkedIn, and donate to us at ThinkTechHawaii.com. Mahalo.