It may seem a hypothetical too far to imagine the trial of the Russian leader – an exercise in wish-fulfilment at a time when barbaric war crimes in Ukraine have sickened the civilised world. But Vladimir Putin, at 67, could live another 30 years, and who knows what may happen in 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 that he should never be given immunity from prosecution.
Because Ukraine is party to the International Criminal Court, its prosecutor has the power to investigate war crimes committed on its territory, and has started to do so. Putin may claim he did not directly order them, but under Article 28 of the court’s charter he bears “command responsibility” if he has failed to deter them or, on becoming aware, has not ordered a prosecution of the perpetrators. For weeks now, he has remained insouciant about war crimes committed by his forces, and for this reason alone should be indicted for trial at the Hague. Even if there is little prospect of his attendance, it is an important step: Milosevic’s indictment was the point at which his people began to turn against him.
Russia is not a party to the ICC so Putin would have to be tried for his crime of aggression by a special court set up by the UN Security Council – a step Russia’s present government would veto. But there can be no time bar for this crime, and at some future trial his prosecution would be simple. He is guilty, beyond any reasonable doubt, of the crime of aggression. Proof of that guilt is easy, because the crime – defined and added to the jurisdiction of the ICC as recently as 2017 – means the use of armed force for “manifest” breach of the UN Charter by invading a sovereign country. “Manifest” is judged by its “character, gravity and scale”. His invasion of Ukraine plainly satisfies that test and there is copious evidence.
Putin’s lawyers would have a well-nigh impossible task in showing that Russia acted in self-defence, which is permitted under the UN Charter. It is nonsense to suggest that Ukraine posed a threat to Russia. There was a civil war in Donbas, but no danger that it would spill over into Russia.
Moreover, Putin’s advocates would be shackled with his own pretended defence, namely that he invaded in order to stop genocide. This would be permitted under the Genocide Convention, but it is simply a lie to say that the Ukrainian government or army had genocidal intentions in relation to the citizens of Donbas.
Undoubtedly, for political purposes, Putin’s lawyers would seek to rely on what is called the “tu quoque” defence – namely “I did it but you did it too” – citing the Bush-Blair invasion of Iraq in 2003. It is doubtful if this is a defence at all, but there would be a simple, if technical, answer to it. The law of aggression, as authoritatively defined, dates only from 2017: what happened in 2003, and on many occasions before, is irrelevant.
Putin will not be put on trial in the Hague anytime soon. But if and when he is, international judges – the court has no jury – should convict and sentence him to life in prison, their strongest punishment. In the meantime, it is important to recognise the overwhelming case against him and for him to be treated as an international criminal. And the international court prosecutor must be funded so he can collect all the evidence – a successor may one day find use for it.
Geoffrey Robertson QC presided over the UN’s war crimes court in Sierra Leone. His latest book is ‘Bad People and How to Be Rid of Them’
