Arguments are raging among international lawyers about the best forum in which to try Vladimir Putin if the Russian leader is ever brought to justice for ordering the invasion of Ukraine almost two years ago.
The obvious tribunal is the International Criminal Court (ICC) and the obvious charge would be the crime of aggression, the “leadership crime”. But the ICC cannot try anyone for aggression unless it has been allegedly committed by a national of — or on the territory of — a state party to the court’s statute, which neither Russia nor Ukraine has signed. The UN Security Council can refer a case to the ICC prosecutor but it’s assumed that Russia would use its veto to prevent its citizens being charged.
The best the ICC has been able to come up with so far is an an arrest warrant for Putin and his children’s commissioner, accusing them of committing war crimes by unlawfully transferring children from occupied areas of Ukraine to Russia. That could be a useful holding charge but nobody would regard it as adequate to reflect the gravity of what has happened.
Ukraine can’t try Putin because he would enjoy personal immunity as a former head of state. So would his prime minister and foreign minister — referred to as the “troika”.
The same problem would apply to a Ukrainian court sitting — as an “internationalised” or hybrid tribunal — in The Hague. But that limitation is seen as an advantage by western countries which don’t want their own leaders to face charges of aggression in the future.
An international conference was held in London last week in an effort to break the logjam. Twenty-five leading legal figures said in a communique issued afterwards that they saw “clear merit” in a “strictly international tribunal or a highly internationalised tribunal”. This would have:
an international agreement and statute;
reference to international law for the purposes of jurisdiction and applicable law;
significant international components (such as prosecutors, judges, and venue); and
firm international backing, where possible, from international and/or regional organisations.
The communique spoke of “deadlock” in inter-state discussions, complaining that several countries had not made their positions clear.
International Criminal Court
Professor Philippe Sands KC went further in his remarks to the conference, accusing the ICC of taking part in a turf war. Sands was the first international lawyer to call for a “dedicated international criminal tribunal to investigate Putin and his acolytes” in a newspaper article published just four days after the invasion.
He told the those attending:
One of the aspects of this discussion that I find so particularly sad is that the institution that seems most opposed to this idea is the International Criminal Court, in the form of its prosecutor and in the form of some of its judges. This is not an issue of principle for them; it’s an issue of turf.
It strikes me as deplorable that… when a conflict rages on the territory of Europe of the kind that has dragged on for two years and which could plainly extend into a much bigger conflict… the idea that protecting your own institution — turf — is driving your opposition is utterly appalling.
Council of Europe
Support for a new tribunal came last April from the Parliamentary Assembly of the Council of Europe, as I reported at the time. The idea has been taken up with enthusiasm in Strasbourg, where the 46-nation group is based.
Concerns were raised, though, when the Guardian’s diplomatic editor, in his report of the conference, said that for the Council of Europe to establish a new tribunal through a multilateral treaty “would be an affirmation of the global south’s exclusion from western-dominated international justice”.
Sources were quick to point out that some Council of Europe treaties have set truly international standards, such as the Budapest Cybercrime Convention with 69 parties or the Data Protection Convention 108, which has been in operation for 40 years.
At a meeting in Reykjavík last summer, Council of Europe leaders welcomed “international efforts to hold to account the political and military leadership of the Russian Federation for its war of aggression against Ukraine and the progress towards the establishment of a special tribunal for the crime of aggression”.
Jörg Polakiewicz, the Council of Europe’s legal adviser, told the conference last week that support for a special tribunal could be legal, political and technical. With its experience in dealing with non-member states and with representatives of civil society, the Council of Europe could provide a negotiating forum for the treaty that would be needed to establish a new court.
The Europe-wide body — whose members include the UK — had moved quickly to expel Russia after it invaded another Council of Europe state. It was now working to record damage in Ukraine caused by the war.
Comment
It seems hard to imagine circumstances in which Putin would ever be arrested and brought before an international court. When I put that point to Ukraine’s senior prosecutor Andriy Kostin last summer, he replied that nobody had expected to see the Serbian leaders Slobodan Milošević and Radovan Karadžić on trial in The Hague either.
It also seems hard to imagine western political leaders willingly surrendering their personal immunities and leaving themselves vulnerable to malicious accusations of aggression from a defeated enemy. That’s why Ukraine’s campaign for the tribunal proposed by Sands has not received the support it would need from the G7 countries.
But it would be absurd — and a tragedy — if Putin escapes justice merely because efforts led by European nations are thwarted by countries from the global south.
me too
I'm disappointed to read this - I just subscribed yesterday and now I want to unsubscribe. I'm sick and tired of the USA SPM being free to invade and destroy any country they please and those that help them exonerating themselves while blaming Russia for defending innocent people against Nazi genocide and do not consent to being charged for your publication of such rot.