Russian President Vladimir Putin is guilty, beyond reasonable doubt, of the crime of aggression and he bears what is termed “command responsibility” for the many war crimes committed by his forces in the course of the Ukrainian invasion: most notably, the targeting of hospitals and the killing of civilians. Were he to be put on trial, the prosecution would have no difficulty proving its case.
The crime of aggression, defined and adopted by the International Criminal Court as recently as 2017, means using armed force to commit a “manifest” breach of the UN Charter by invading an independent country, such breach being “manifest” by virtue of its “character gravity and scale”.
The invasion of Ukraine was ordered by Putin and plainly satisfies this definition, given its scale and its appalling consequences in death and destruction and over a million refugees.
In Putin’s hypothetical trial, the prosecution would only need to call evidence of these facts – from the Ukrainian government, a few victims who witnessed or were injured in the bombings, and indeed the transcripts of Putin’s own statements. It would have no shortage of photographic evidence to prove its case.
Assuming that Putin is represented by competent lawyers (this will be important so that justice can be seen to be done), they would probably assert Russia’s right under the UN charter to self-defence.
But they could not call credible evidence to show that this powerful state had been threatened by Ukraine or was in any danger of imminent attack.
There was a civil war in Donbas, but there was no danger it would spill over the Russian border. Putin has claimed that he intervened to stop genocide, but this defence (based on the Genocide Convention) is hopeless because that crime requires the intentional destruction of part of a race on religious or racial grounds. Any so called ‘expert’ called to maintain this lie would be torn to pieces under cross-examination.
There would be no jury trial but the international judges would be sure to convict. No death sentence would follow (capital punishment is not allowed in international courts) but Putin could expect to be jailed for the rest of his life for the crime of aggression.
As for the war crimes for which he could be found to bear command responsibility, they could feature in a separate trial where he could argue that they were targeting errors of which he did not approve. These charges would depend on the evidence and a case against him for responsibility has become stronger as the war continues.
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Envisaging Putin’s trial may seem an academic exercise in wish fulfilment at present but war criminals in the Balkans have been brought to justice 20 years after their crimes and old Nazis in their 90s have been brought to trial in Germany.
Putin is 67 and who knows what may happen to him over the next 30 years? He may be dislodged by a coup or traded by a new government, like Milosevic, in return for assistance from the west, or he may be captured in retirement.
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In any event, it is worthwhile to emphasise that the Russian leader is guilty of a monstrous crime against humanity, if only because he may commit more.
Geoffrey Robertson QC was the first president of the UN War Crimes court for Sierra Leone. His latest book, published by Biteback, is Bad People and How to Be Rid of Them
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