Vladimir Putin can be tried and he will be sentenced
It may seem too hypothetical to imagine the Russian leader’s trial – an exercise in wish-fulfillment at a time when barbaric war crimes in Ukraine have sickened the civilized world. But Vladimir Putin, at 67, could live another 30 years, and who knows what can happen during that time. It took 20 years to bring the butchers of the Balkans – Mladic and Karadzic – to justice and Putin’s crimes are so serious he should never enjoy immunity from prosecution.
Because Ukraine is a party to the International Criminal Court, its prosecutor has the power to investigate war crimes committed on its territory, and has begun to do so. Putin can claim he did not directly order them, but under Article 28 of the court’s charter he bears “command responsibility” if he failed to deter them or, when he had knowledge of it, did not order the prosecution of the authors. For weeks he has remained oblivious to the war crimes committed by his forces, and for that reason alone should be charged for trial in The Hague. Even if there are few prospects of his presence, it is an important step: the indictment of Milosevic was the moment when his people began to turn against him.
Since Russia is not a party to the ICC, Putin should be tried for his crime of aggression by a special tribunal set up by the UN Security Council – a measure which the current government of Russia would oppose. veto. But there can be no statute of limitations for this crime, and in a future trial, prosecuting it would be straightforward. He is guilty beyond a reasonable doubt of the crime of assault. Proving this guilt is easy, as the crime – defined and added to the jurisdiction of the ICC as recently as 2017 – means the use of armed force for a “manifest” violation of the Charter of the United Nations by invading a sovereign country. “Manifest” is judged by its “character, gravity and scale”. His invasion of Ukraine clearly meets this test and there is plenty of evidence.
Putin’s lawyers would have an almost impossible task in demonstrating that Russia acted in self-defense, which is permitted by the UN Charter. It is absurd to suggest that Ukraine posed a threat to Russia. There was a civil war in Donbass, but there was no risk of it spilling over into Russia.
Moreover, Putin’s lawyers would be chained with his own so-called defense that he invaded to stop the genocide. This would be allowed under the Genocide Convention, but it is simply a lie to say that the Ukrainian government or military had genocidal intentions against the citizens of Donbass.
Undoubtedly, for political purposes, Putin’s lawyers would seek to rely on what is known as the ‘tu quoque’ defense – i.e. ‘I did it, but you did it too’ – citing the Bush-Blair invasion of Iraq in 2003. It’s doubtful that’s a defense at all, but there would be a simple, albeit technical, answer to that. The law of aggression, as authoritatively defined, dates only from 2017: what happened in 2003, and many times before, is irrelevant.
Putin won’t be on trial in The Hague anytime soon. But if and when he is, international judges – the court has no jury – should find him guilty and sentence him to life in prison, their harshest sentence. In the meantime, it is important to recognize the damning case against him and that he be treated as an international criminal. And the prosecutor of the International Court must be funded so that he can gather all the evidence – a successor may one day find use for it.
Geoffrey Robertson QC presided over the UN war crimes tribunal in Sierra Leone. His latest book is “Bad People and How to Get Rid of Them”