Putin’s one-way ticket to The Hague: international law experts, judges, and diplomats on a hypothetical trial of the Russian dictator

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Carla del Ponte, chief prosecutor at two international tribunals: “Like Milosevic, Putin is certainly a war criminal and cannot evade trial”

Carla del Ponte, former chief prosecutor at two international criminal tribunals – for Rwanda and the former Yugoslavia.

Vladimir Putin cannot evade trial before an international tribunal because the International Criminal Court (ICC) in The Hague has already opened an investigation into war crimes and crimes against humanity committed in Ukraine by the Russian army. Putin is certainly liable to be found responsible for these crimes. Of course, the most important crime he could be charged with is the crime of aggression [a crime committed by a state or individuals in an armed conflict against a sovereign state]. This is a crime that the ICC cannot try because Russia has not signed the Rome Statute, which sets out the definition of this crime. So the international community would have to set up a special tribunal for Ukraine.

Putin is certainly a war criminal. I see analogies with Slobodan Milosevic [the former president of Serbia who was put on trial at the ICC for failing to prevent genocide in Bosnia]. When Putin calls Ukrainians terrorists while boasting about fighting terrorism himself, this is exactly the same terminology used by Milosevic in the 1990s. Many conditions would have to be met [for Putin to be brought to justice]. First of all, there would have to be peace. The war has to end, but justice can move forward in parallel with a peace process. Justice itself can also promote peace.

Take what happened in the former Yugoslavia with Milosevic: he was still president when the peace talks were happening [in early 1999 in Rambouillet, France]. But he wasn’t there. Why not? Because he knew that he was under international investigation and that there could be an arrest warrant out against him. He didn’t know if there was one or not, but he knew the risk was there. So it was clear that the investigation against Milosevic facilitated talks for a peace agreement.

Can we use the term ‘genocide’ to describe the killing of Ukrainians by the Russian army? There is a very precise definition of the word ‘genocide.’ International law is very specific about this: for genocide, you have to show intent and will. And it is very complex to investigate. I wouldn’t use these terms for the war in Ukraine.

By contrast, the crime of aggression has already been proven and doesn’t require any evidence beyond what we already have. This is a crime for which Putin is responsible. In his speeches, he admitted that he is the commander-in-chief of the Russian army and that it was he who led the aggression against Ukraine.

The Ukrainian government’s cooperation with the international judiciary facilitates any investigation of war crimes committed in Ukraine. In the former Yugoslavia, we received zero cooperation from the country’s authorities, which made it very difficult to gather evidence.

Civilians are the ones who have suffered the most in this war. You can see that by the number of mass graves. This is something unimaginable. And it’s going to be difficult to get them out. You have to do examinations, autopsies, and DNA analysis, and determine whether they were civilians or the military. Many of these victims were buried with their identity cards, and that of course makes it easier to identify them. If you do a serious investigation, there will be no doubt left about who the perpetrator is.

First of all, the Ukrainian prosecutor will take over the investigation. A Ukrainian court has already convicted a Russian soldier, but of course, this is only a first step. The ICC should be able to investigate quickly. The best solution would have been to set up a specific tribunal for crimes committed in Ukraine. But this sort of thing is difficult to obtain because of Russia’s right of veto in the UN Security Council.

Irwin Cotler, a former lawyer for Nelson Mandela: “Russia is in standing breach of the Genocide Convention”

Irwin Cotler, a former lawyer for Nelson Mandela and a former attorney general of Canada, is drafting a proposal for a special criminal tribunal for Ukraine. Cotler is the only expert interviewed who believes that Russia’s aggression should be treated as genocide.

Putin does not have diplomatic immunity for international war crimes and crimes against humanity under the jurisdiction of the International Criminal Court, but what is needed at this point is an independent international tribunal for the crime of aggression, as that crime is not prosecutable under the existing legal frameworks. That is where Putin has immunity.

One could draw parallels with Bashar al-Assad. In both the cases of Assad and Putin, the international community indulged in a culture of criminality and impunity. For example, the international community did not intervene when Russia assaulted Chechnya, invaded Georgia, annexed Crimea, and bombed Syria. Putin might well have thought that if the international community did nothing at each of these points of assault, then why should it care if Russia invades Ukraine?

Ukraine, in Putin’s thinking, was not an independent state in any case; it had to be “de-Nazified” and was part of Russia. In fact, Russia is in standing breach of the Convention on the Prevention and Punishment of the Crime of Genocide in three areas: first, in its direct and public incitement to genocide, a standing breach of the Convention, whether or not acts of genocide follow, as the Supreme Court of Canada has declared; second, that genocidal intent may be inferred from Russia’s planning and execution of mass atrocity crimes; and third, that the crime of aggression, the direct and public incitement to genocide, and the condition of mass atrocity crimes, have created a risk of genocide, and so state parties to the Genocide Convention are therefore under an obligation to prevent and protect the potential victims. It is a stand-alone obligation that does not await the actual commission of genocide itself.

In an ideal world, we would be securing justice for victims and accountability for the violators. In our world, there are several initiatives that we are pursuing and others that need to be pursued. These include the International Court of Justice initiative, which, in a provisional judgment, has called on Russia to cease and desist from its acts of aggression and to withdraw from Ukraine; second, ongoing investigations for prospective prosecution at the ICC; third, prosecutions under the principle of universal jurisdiction; fourth, the ongoing prosecutions by Ukraine itself; and finally, the establishment of an independent tribunal for the prosecution of the crime of aggression, which is not now under the jurisdiction of any of the existing approaches.

Francois Zimeray, lawyer for the ICC: “The legitimacy of Ukrainian courts is indisputable. Russian courts will have jurisdiction too — after a regime change. At some point, people in Russia will break their silence”

François Zimeray practices law in Geneva and Paris and is also a lawyer for the International Criminal Court (ICC). He has worked on cases involving the genocide committed by the Khmer Rouge in Cambodia and on the use of child soldiers in the Democratic Republic of the Congo.

History teaches us that there’s a time of conflict, then a time of peace-making, and finally, a time for justice. As we witness the atrocities in Ukraine, as blood is still flowing, we all feel a need for justice — it’s hard to accept our own powerlessness to stop the crimes. But we have to face the facts: now is not yet the time for justice.

The moment for the law will certainly come, but when? And in which court? The ICC has the most universal jurisdiction. But countries whose authorities risk being pursued by the ICC have not adopted its Rome Statute, which created the Court. Russia is not party to the Rome Statute — nor, by the way, is the United States — so it’s hard to imagine that Moscow would now willingly accept a special tribunal, a new Nuremberg Trials.

Russia is no more likely to recognize the legitimacy of a “21st-century Nuremberg” than that of the ICC. In the history of humanity, the Nuremberg Trials represent immense progress, but the legitimacy of a court must be recognized by everyone — both victims and accused. Since Nuremberg, international justice has made significant advances in guaranteeing a fair trial and, importantly, curbing the impression that victors impose the verdicts. Of course, the question of the legitimacy of these trials came up. And it did again much later, notably in France during the trial of Klaus Barbie [head of the Gestapo in Lyon, Barbie was convicted of crimes against humanity and sentenced to life in prison in 1987]. Contesting the legitimacy of judges can be a line of defense, but it lacks honor or effectiveness.

In the aftermath of the Second World War, Nazi defendants had little choice. Today, the legitimacy of a special tribunal would be bitterly debated. There’s also the issue of Russia’s veto power in the UN Security Council, where it would be supported by China. Any UN initiative would face that obstacle.

The idea of justice in the near future is obviously appealing, but is it likely or realistic? What seems certain to me is that Ukraine has legitimate grounds to try these crimes, and international law allows it. Since the victims are primarily Ukrainian, the country’s courts indisputably have jurisdiction. Ideally, Ukrainian courts would act with the assistance of the UN and maybe the technical support of the ICC.

Ideally, if a case can’t be referred to the ICC, an ad hoc tribunal would be established, as has been proposed. It would have clear benefits legally but also for history. Ultimately, I think Ukrainian courts are best placed to try the crimes: they have the information and the names, they know the language, they have a good grasp of the facts, the victims are local — it all happened on their soil — and, above all, they have perfectly integrated the requirements of a fair trial. Their legitimacy is indisputable. If Ukraine issues an international arrest warrant, the person in question will no longer be able to travel beyond Russia’s borders.

There’s another option that might seem unimaginable but could become a reality: the Russian justice system. At some point, the people who committed these crimes will have to answer not only to Ukrainian courts, but also to Russian ones, which have jurisdiction too. This presupposes, of course, a regime change in Russia.

Everything I’ve seen and heard throughout more than 100 missions around the world leads me to believe that even the most opaque and closed regimes contain fracture lines, which are as deep as they are hard to detect. There are obviously people in the Kremlin who don’t agree with Putin. We’ve seen the unbelievably courageous reactions among a segment of Russian society — and the bravery of journalists who are starting to express themselves. A great many people have been affected directly or indirectly by the war. At some point, they will break their silence.

Lawyer Philippe Currat: “The only way of prosecuting Putin would be if he ceased to hold office”

Philippe Currat wrote his thesis on crimes against humanity in the statutes of the International Criminal Court. In 2005 he was seconded by the Swiss foreign ministry as senior legal adviser to the Prosecutor of the Special Court for Sierra Leone. He represented the International Criminal Bar (ICB) at the assemblies of the States Parties to the ICC. Currat is on the list of counsel admitted to appear before the ICC.

In the current context, there’s talk of bringing Vladimir Putin to justice. Since he’s the head of state, he should be the target of any proceedings. He has decision-making power, so he’s seen as having overall responsibility for what’s happening. However, it’s a bit of a fantasy.

The ICC statute lays down that there is no immunity for genocide, crimes against humanity, and war crimes. The states that have ratified the Rome Statute have thus agreed to waive this customary-law immunity for their highest authorities. The ICC can only prosecute the heads of state or government or the foreign ministers of countries that are party to the Rome Statute. The question of whether immunities also apply to the heads of non-party states when the UN Security Council refers a situation to the ICC remains controversial.

The only case that has occurred so far is that of Sudan, with the indictment against the then-president Omar al-Bashir. Importantly, the Security Council resolution didn’t target an individual person, but rather all the acts committed in Darfur. The Security Council didn’t mention specific people and said nothing about immunities. So can immunities be considered to apply, or not? The question will always remain open with regard to Darfur, as al-Bashir lost power before being tried. As soon as someone is no longer head of state, head of government, or foreign minister, they can be brought to trial, including for acts committed while in office.

So the only way of prosecuting Putin today, or for example [Russian Foreign Minister] Sergei Lavrov, would be if they ceased to hold office.

What are the chances of Putin being brought to justice in the near future? For years people said about [former Serbian and Yugoslav president] Slobodan Milosevic: “It’s impossible, you’ll never get him.” But one day he lost power, he was arrested, he was transferred to the International Criminal Tribunal for the former Yugoslavia, and he was tried. So it’s possible. It’s important here to adopt the point of view of a criminal lawyer and investigator and not a political ‘I want to try Putin’ approach.

Because if we focus on Putin, what do we do next? What are we accusing him of, in terms of his criminal responsibility, rather than for his political or moral responsibility? He has never been on the battlefield himself, shooting civilians, raping and looting, or who knows what else.

You may say that Hitler never operated a gas chamber himself. But there is a nuance: Hitler committed suicide and so escaped any proceedings. This raises the whole question about leaders, who bear different kinds of criminal responsibility from the direct perpetrators. A certain number of elements have to be proven before leaders can be incriminated and, if applicable, convicted.

But just as it’s questionable to try only the perpetrators while letting the leaders off the hook, prosecuting only the leaders without dealing with the perpetrators is also problematic. Determining the actual facts on the ground will be crucial. The missile that fell on a school, a maternity ward, a hospital, killed civilians and caused documentable damage — you have to determine where it came from. You can then establish who launched it, and once you’ve identified the unit responsible, you’ll be able to identify the chain of command above it and see how far back you can go to engage the possible criminal responsibility of the superior.

A lot will depend on the level of evidence that can be collected. Crimes against humanity, war crimes, and genocide are extremely complex offenses. Clearly, they cause a large number of victims, but it’s easy to forget that they are the result of a large number of acts committed by a large number of people — hence the difficulty of establishing the individual criminal responsibility of each potential perpetrator in connection with each act and victim.

To charge someone with genocide, there must be proof of intent to destroy all or part of a national, ethnic, racial, or religious group as such. If this is not the case, there is no genocide, no matter how many people die.

Ukraine has been calling for the creation of a special court to try Russian crimes and the people responsible for the war for more than a year. Personally, I’m not in favor of this. Ukraine referred the case to the ICC already back in 2014, recognizing its jurisdiction, and it was only much more recently that it called for a new body to be created. When the ICC was established, the goal was to change tack and avoid setting up ad hoc courts for a particular conflict after the event, as this would undermine the legitimacy of the ICC.

What’s more, I don’t see how, legally speaking, we could create a new body to judge acts committed in Ukraine by Russian soldiers or agents without Russia’s consent. It is a question of sovereignty. This seems to me to be a wrong good idea that will complicate matters further.

We already have the primary jurisdiction of the very active Ukrainian national courts, the universal jurisdiction of any other country, the international jurisdiction of the ICC, a number of other investigative bodies set up by third states in cooperation with the Ukrainian authorities, and European bodies such as Eurojust, which are also taking action. Adding yet another player could lead to total confusion.

Beth Van Schaack, U.S. Ambassador-at-Large for Global Criminal Justice: “We may have to wait until these perpetrators begin leaving the safety of Moscow”

Beth Van Schaack is an American attorney, academic, and the Ambassador-at-Large for Global Criminal Justice at the US Department of State.

The Independent International Commission of Inquiry for Ukraine set up by the UN Human Rights Council released its first report very recently, and it’s a very strong indictment of Russia’s war crimes. They have been able to catalog a lot of such crimes, including the use of explosive weapons in populated areas, targeting around schools and hospitals, endangerment of civilians, and a whole list of violations of personal integrity — for example, summary executions, unlawful confinement, torture, and wounding of captive persons, rape and other forms of sexual violence, and of course, all the deportations and Russia’s renowned “filtration” operations. Normally, all of the underlying information can be shared with prosecutorial authorities around the world.

This would include national-level prosecutors, for example, in Ukraine. But also there are prosecutors elsewhere in Europe, many of whom have opened their own investigations into the situation in Ukraine with an eye to potentially bringing war crimes cases should Russian defendants come within their jurisdictional reach. All of this information can be shared with the International Criminal Court, which has opened an investigation into the situation in Ukraine. So the Commission of Inquiry is one part of a larger effort around the world.

It is remarkable that Ukraine could keep its war crimes unit fully operational. As soon as there are incidents around the country and there are potential war crimes, they are able to send a team of both national and international experts to the field to start immediately collecting evidence. Ukraine has also issued a few indictments already and conducted trials in their domestic courts.

While Ukraine has some war prisoners in custody, many of the architects of this campaign of war crimes are located in Russia. We may have to wait for some time until these perpetrators begin leaving the safety of Moscow.

It is very important to emphasize that the laws of war and the prohibitions against war crimes apply equally to the aggressor state and to the victim state. When it comes to this conflict in particular, that is where this equivalence ends. The data and information related to Russia’s war crimes are vastly larger than allegations against the Ukrainian forces. We also see huge disparities between the reaction of the two states. Russia reacts to these claims and the allegations against it with denials and lies, whereas Ukraine has acknowledged that its forces have committed some abuses and has promised to investigate them.

You would expect to see a high degree of violence and destruction in any war, even if it is fought in strict compliance with international law. But what we saw in areas from which Russian troops retreated was violence of a different order. That was interpersonal, gruesome violence — we saw bodies of people killed execution-style, with their hands tied behind their backs. There were credible reports of sexual violence against women and girls, and men and boys. So this is not just the typical sort of destruction you would expect from war, but really violent interpersonal abuses. And that is extremely difficult to see and hear.

The interviews were recorded by Elena Servettaz for the Swiss publication Swissinfo.ch.