No crime should be forgotten.
A court in the German city of Koblenz has sentenced a former intelligence officer of Syrian ruler Bashar al-Assad to life imprisonment without a right to appeal for pardon. He was found guilty of crimes against humanity - mass murder and torture of members of the Syrian opposition and their families.
In this regard, German journalist Reinhard Müller stated that "no executioner or criminal can feel safe anymore".
What prospects does this open for Belarus? Charter97.org talked to Harry Pahaniayla, chairman of the Legal Commission of the Belarusian Helsinki Committee.
- Universal criminal jurisdiction is one of very effective tools in combating international crimes. It should be noted that since World War II, the United Nations (UN) has adopted a number of basic international treaties (conventions, agreements), based on which a lot of states have introduced into their national legislation the so-called provisions of holding persons criminally responsible for acts against peace, security of humanity and war crimes, regardless of their nationality and place of residence. There is no statute of limitations on their prosecution. This is the so-called universal criminal jurisdiction. Such procedures make it possible to really prosecute the perpetrators of a number of crimes relating to crimes against humanity (preparation and conduct of aggressive wars, violation of the rules of war and other inhumane things: terrorism, genocide, ecocide, extrajudicial executions, torture and a number of other actions).
The Republic of Belarus, I would remind you, one of the founders of the UN, has also introduced the provisions of universal criminal jurisdiction into its legislation. They aim (in accordance with the established practice of international public law) to prosecute those guilty at the national level, regardless of the criminal law at the place where the act was committed for the crimes in question.
This practice has long been known. Not only Syrians, but also a number of other citizens in Germany, Belgium and a number of other countries have been prosecuted under international criminal jurisdiction. For example, the Pinochet officers who were convicted of the atrocities that were committed during the coup d'état in Chile in 1973, as well as during the time of dictator Pinochet. And General Pinochet himself was tried under the same procedure - universal criminal jurisdiction first in the UK, where he was detained. The case was then handed over to the judicial authorities in Chile, and there it progressed successfully until the elderly Pinochet's health condition deteriorated.
Alas, old people can reach the point of senility when, because of their physical and mental health, they cannot understand what is going on during the trial, cannot react or perceive properly the decision made by the court and serve their sentence. And the case was terminated. This was objectively and procedurally correct. There are such grounds for terminating a criminal case against those who will not be able to serve their sentence and realize that it is for committing past crimes. The punishment, of course, must be perceived psychologically as a punishment for the acts committed. When a person does not perceive that it is punishment, there is no point in such a trial and sentence.
Let me remind you once again that these crimes have no time limit. Any person who has previously committed or is suspected of having committed crimes can be prosecuted at any time. And states with universal criminal jurisdiction can administer justice in these kinds of cases.
- Can this situation with Pinochet be somehow extrapolated to Belarus?
- Absolutely. Moreover, for over 20 years I have been working on the issues of universal criminal jurisdiction in relation to those crimes which are widely known in Belarus and all over the world. These are, as we suspect, extrajudicial executions of opponents of the Lukashenka regime - Yury Zakharanka, Viktar Hanchar, Anatol Krasouski and Dzmitry Zavadski. In addition, these crimes have already been aggravated by the new crimes related to the suppression of peaceful protests (2020-2021): excessive use of force resulting in death, arbitrary detentions, systematic torture, illegal deprivation of liberty and others related to international crimes. These include the hijacking of a Ryanair plane with passengers on board and the instrumental use of migrants to create tensions with neighbouring countries - Poland, Lithuania and Latvia. The above criminal acts have already been assessed by the international community and qualified as crimes against humanity. They can be considered in the Republic of Belarus and in other countries which have the procedures of universal jurisdiction.
In particular, according to the universal criminal jurisdiction, the prosecutor's office of Lithuania is investigating the case of our citizen Maksim Kharoshyn. He was the owner of a flower shop in Minsk, gave flowers to women during peaceful protests and was brutally beaten, as he claims, by the police when he was detained. He left Belarus and ended up in Lithuania. The prosecutor's office there opened a criminal case based on his application and is still investigating it. There are about 12-15 such cases in the Republic of Lithuania today. Similar cases have been initiated in Poland. The media have reported that our citizens who have fled abroad have filed complaints to initiate similar cases in Germany, the Czech Republic, Ukraine and, possibly, in other countries.
Our citizens, having found themselves in other countries and having sought asylum or state protection of certain kinds there, are reporting crimes of this kind committed against them and their relatives. Such cases can develop over time and of course there can be certain delays. This is because our official, so-called authorities and competent bodies do not want to cooperate under international treaties with those bodies which initiate and conduct investigations under universal criminal jurisdiction (cooperation under treaties on legal assistance in criminal, civil and administrative cases, on extradition, etc.).
For example, when Lithuania announced the initiation of proceedings concerning Kharoshyn, the Prosecutor General's Office of the Republic of Belarus even fault them through our Foreign Ministry for "interfering in the internal affairs of the Republic of Belarus, for how is it possible that somewhere they announced the beginning of investigative actions concerning the citizens of the country?" That is against those law enforcers who may have taken part in the torture and brutal beating of our Belarusian citizen. It is bad, of course, that the Prosecutor General's Office of the Republic of Belarus has not bothered to study its own laws and has not initiated any criminal case on the victims' applications and has not brought them to court.
At the same time, when the crisis with the so called refugees on the border of the Republic of Belarus and a number of EU countries was not over yet, the independent Prosecutor General's Office initiated a "relevant" criminal case against officers of the border services and their leadership, using the rules of the universal criminal jurisdiction under the criminal law of Belarus, for abuse of force and use of special means against the border violators.
- Let's go back to the statements of the Belarusians who are now abroad and write complaints against the law enforcers. Do you see any sense in this? Does it create additional pressure on the regime?
- Such work makes a certain sense. Moreover, if we proceed from the principle of the inevitability of punishment for any crime committed, such crimes must not be condemned to oblivion. It is necessary to use all legal instruments and mechanisms in order to prosecute perpetrators by the laws of the Republic of Belarus, as well as by the laws of other states. And such cases should be brought to court. And only the court can put an end to the question of guilt or innocence of a person held criminally responsible. Not guilty means an acquittal, guilty means a conviction.
We must all hope for fair justice for the crimes that have been committed here in Belarus against our own citizens. And not a single crime must be forgotten. Now it is fashionable for our so-called ideologists and patriots to cry out that "we will not forget, we will not forgive" the victims of Nazi occupation on the territory of Belarus during the Great Patriotic War. Now our "wise lawmakers" have passed a law on criminal liability for denying the genocide of the Belarusian people. The law, in my opinion, is completely divorced from history and from the legal theory and practice of bringing such crimes.
But let me return directly to our topic. Criminal prosecution of persons for international crimes under the rules of universal jurisdiction and specially created courts have, as jurists say, not only a partial prevention, but also a general one, which prevents such criminal practices by the powers that be. The inevitability of punishment is a valid principle and its implementation is a prerequisite for the criminal policy of democratic states based on the rule of law.
- It has recently become known that Polish lawyer Tomasz Wilinski filed a lawsuit against Aliaksandr Lukashenka with the National Prosecutor's Office in Warsaw. Also in January 2022, he plans to file a lawsuit against Lukashenka with the International Tribunal in The Hague. Does this case have any prospects?
- As for Mr. Lukashenka - there are real mechanisms in the international criminal law and practice of its application to overcome the immunity from prosecution of heads of states and other persons protected by the Vienna Convention. If these persons commit crimes against humanity, they may not be covered by this immunity, because the international community is supposed to fight such crimes.
Without going into profound theoretical reasoning, I would like to note that the Rome Statute (Art. 27) and the Statute of the International Court of Justice contain provisions that clearly reject the immunity of a Head of State. They were preceded by Article 4 of the Convention on the Prevention and Punishment of the Crime of Genocide, which together with Article 7 of that Convention provides that even active heads of state and other agents subject to the rules of the Vienna Convention on Diplomatic Relations may be prosecuted by the State where the crime was committed or by the competent international court. In doing so, the legislator and the enforcer assume that the doctrine of head of state inviolability can be overcome in the case of international crimes committed by the head of state. The actual subject "international community" cannot grant immunity for acts which it explicitly condemns and to this end, in defense of declared values, has established and must therefore enforce legal mechanisms to bring perpetrators to justice.
Our servicemen, according to Lukashenka's statement, may take part on the side of Russia in a military conflict against sovereign Ukraine. Essentially this could be assessed as waging a war of aggression. The Constitution and legislation of the Republic of Belarus can allow armed defense of the Motherland, but not the participation of armed forces on the side of an aggressor. That is why we need to preserve and adhere to the status of a neutral, non-bloc state. Our "hawks" should remember: propaganda of war, preparation or waging a war of aggression are crimes against peace and security of mankind. For these crimes they will have to answer not only to their own people, but also to the international community.
- There is an opinion that it is crucial for the further development of society to try dictators and accomplices of regimes. Do you think this statement is correct and does Belarus need such a trial in the future?
- Such a trial will take place sooner or later. Since all the dictatorial regimes are characterized by holding power by force, repressions, suppression of human rights and freedoms. And these kinds of violations cause serious casualties. Neither citizens of a country, let alone international institutions responsible for ensuring a world order without wars, for human dignity, rights and freedoms, declared as fundamental values, have the right to forgive such things. It is their moral obligation to the living and future generations to ensure that such things do not take place in the historical perspective. Dictatorial regimes must become a thing of the past.