Should Putin, can he, will he be prosecuted for war crimes?

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Should Vladimir Putin be indicted for war crimes for deliberately killing civilians and bombing hospitals in Ukraine? Could he be charged? the will bedoes he?

Three very different questions, with possibly three distinct answers. This clearly shows the problem that arises when one wants to implement the law of armed conflict between nations: it is not easy to separate international law and international power.

With very few exceptions, leaders, senior officials, or even high-ranking officers are not charged or convicted of war crimes, except when they are overthrown or their country has lost a major conflict. Just as the winners write history, they are also the ones who sometimes pursue the losers. The reverse rarely, if ever, happens.

Depending on whether you will be powerful or miserable

Thus, shortly after the end of the Second World War, in Nürnberg and in Tokyo respectively, the Allies tried thirty-four senior officials of the defeated Nazi regime and twenty-eight senior officials of Imperial Japan for specific war crimes as well as crimes against humanity, among other charges. They deserved to be judged and punished.

However, as privately confided to one of his aides-de-camp the General Curtis LeMaywho had led the aerial bombardment of Japan, if the Allies had lost the war, he and other American commanders who had explicitly ordered the bombing of civilian targets, thus committing a war crime, would have been brought to justice in their stead. .

“At the beginning of my classes, I used to remind my students of the first law of the law of armed conflict: do not lose.”

The idea here is not to establish moral equivalences. Among other considerations, Japan and Germany had initiated World War II and, in the case of Germany, with genocidal aims. Rather, it is a question of pointing out that politics and power often determine who sits in the judge’s chair and who ends up in the hot seat.

In a telephone conversation on Friday, March 11, Gary Solis, a former law professor at West Point Military Academy, explained to me: “At the beginning of my classes, I used to remind my students of the first law of the law of armed conflict: do not lose.”

And for Putin? I asked Faiza Patel, a former lawyer at the International Criminal Court in The Hague (ICC), now co-director of the Liberty and National Security Project of the Brennan Center for Justice, if he could be indicted for war crimes. She answered: “If we put aside the technical problems? Yes.”

Obstacle course

These technical obstacles are numerous. First, as Solis suggests, it would be very difficult to drag Putin to court unless he lost the war or was ousted from power (likely consequence if he lost it). It would be very useful if a Kremlin regular let go of his former boss, testified against him and provided the prosecutor with incriminating documents; those in Nuremberg and Tokyo had access to tens of thousands of seized documents.

“It’s the intention that counts above all”explains Solis. “Films and photos of hospitals being bombed or civilians killed in humanitarian corridors are not proof. It is only proof that war crimes have been committed. But that doesn’t blame anyone, except maybe the unit commander who dropped the bomb. To reach the guys at the top – and I’m speaking as an international lawyer – you need memos, orders, tapes of conversations. Did Putin put anything in writing? Would one of his trusted men be able to turn against him? That is the question.”

Without evidence of this caliber, Putin could likely stand trial for crime of aggression– which recognizes that starting a war is a crime in itself, regardless of the specific acts that may have been committed in waging it. Four of the Nuremberg defendants were charged with crimes of aggression (amongst other things), but no one else has been in the seventy-seven years since, not least because the concept is so broad . Taken literally, this would mean that virtually all acts of war are crimes.

Universal Jurisdiction

There are other technical difficulties. First, where would Putin be tried? Russia does not recognize the International Criminal Court (neither does the United States), which does not try anyone who is not physically present in the courtroom. The UN Security Council could create a special tribunal, but Russia has a permanent seat there and would be sure to veto such a move – unless Putin is ousted in a revolution. and that the new rulers of Russia want that he be prosecuted.

“We might be able to prosecute the highest-ranking people, but not Putin.”

Lawyers might try to rely on the principle of “universal jurisdiction”, under which any country can try a foreign person for war crimes, in the name of the universal principle of human rights. In recent years, German authorities have arrested, tried and even condemned Syrians for torture and other crimes against rebels or dissidents in their home country (the war criminals happened to be on German soil when captured).

This type of charge can be made against people who either have “hands-on” involvement in the crimes in question or “command responsibility” over the subordinates who committed them. Be that as it may, Wolfgang Kaleck, the general secretary of the European Center for Constitutional and Human Rights (ECCHR) of Berlin, said in a telephone interview that according to the principles of universal jurisdiction, the presidents of a state enjoy immunity. “So we could perhaps prosecute the most highly placed, but not Putin”concludes Kaleck.

That said, the case that gave rise to universal jurisdiction occurred in 1998, when Augusto Pinochet, the former dictator of Chile, was arrested for “crimes against humanity” while hospitalized in London. The arrest warrant had been signed by a judge in Spain. Pinochet was held prisoner in Britain for 503 days, and a British judge ruled he could be extradited to Spain to stand trial – until Jack Straw, UK Justice Secretary, allow him to be repatriated for medical reasons.

To anticipate

Lawyers around the world are certainly drafting indictments against Putin, so that if he survives the war, he can face a warrant for his arrest while on vacation or on vacation. medical treatment abroad. It is possible, and definitely worth it, to make Putin reluctant to come out in public in the future.

Olivia Swaak-Goldman, former director of the international cooperation working group at the ICC prosecutor’s office, told me by email that while Russia rejected ICC jurisdiction, Ukraine had accepted it. “It could be difficult for the court to conduct a trial in practice”she clarifies, but he could always charge Putin, “and that would send a strong message”. If he is still president, “he will no longer be able to represent Russia in international negotiations”which would further marginalize it at the national level.

Whether Putin will end up in a foreign or international court to answer for his crimes should not divert our attention from the real stakes of this war.

So yes, the jurists should draft indictments against President Putin, Foreign Minister Sergei Lavrov, Defense Minister Sergei Shoigu and the brigade and battalion commanders who commit these atrocities in Ukraine. If Russia loses catastrophically, if Putin sees power slipping away from him, if his successors dig through the Kremlin archives and find incriminating memos, then maybe we’ll see them one day crawling in court.

little hope

But better not count on it too much. Keep in mind that the only sitting president who was ever indicted by the ICC was Sudanese Omar Hassan Ahmed el-Bechircharged in 2009 and 2010 with two counts of crimes against humanity and five counts for his acts of genocide in Darfur, deposed by his people in 2019 after ruling with an iron fist for thirty years . Authorities promised to hand him over to the ICC in The Hague last Augustand they still haven’t.

Whether Putin will end up in a foreign or international court to answer for his crimes should not divert our attention from the real stakes of this war, which are high enough. Ukraine fights for its independence, its right to exist as a sovereign nation and, by extension, for the principles of independence and sovereignty. Russia invaded Ukraine with the miscalculated intention of 1) restoring a fraction of its former empire and 2) demonstrating the weakness of Western democracies in the process.

Putin has failed in his second objective and everything should be done, apart from starting World War III, to ensure that he also fails in the first. In this case, Putin and his henchmen will have to suffer a lot of consequences. Sending them to court over the market would be the icing on the cake, but it is not in this sphere that justice will be done.