THE idea of prosecuting Vladimir Putin for war crimes is a waste of time — so it has been said. True, he has bombed hospitals, a nuclear-power plant, and a theatre where children were seeking refuge. He has deployed banned weapons such as cluster bombs. And his troops have conducted brutal executions as part of a strategic reign of terror in occupied territory. War crimes all. But can he ever be brought to justice through the courts?
There are three kinds of court which could arraign him. But the International Court of Justice, which rules on disputes between states, cannot prosecute individuals — and, if it ruled against Russia, the body responsible for enforcing its judgment is the UN Security Council, on which Russia has a veto.
The International Criminal Court (ICC) looks more likely. It is the permanent successor to the Nuremberg trials, which prosecuted top Nazi leaders in 1945. It lacks jurisdiction in Russia, which is not a member; but no fewer than 39 member countries have requested that it begin an investigation into war crimes and crimes against humanity in Ukraine. Since 2017, it has also been enabled to try the crime of aggression — a charge that international lawyers say should be much easier to prove, given the transcripts of the public speeches in which President Putin incited himself to invade Russia’s neighbour. The trouble is that the ICC does not conduct trials in absentia; so it would require someone else to arrest President Putin and transfer him to The Hague for trial. That’s not a likely option just at present.
The third option is a special international tribunal, like the ones set up to prosecute war crimes in Yugoslavia and Rwanda. More than 100 prominent jurists and former statesmen have declared support for the idea, which was proposed by Professor Philippe Sands QC, the director of the Centre on International Courts and Tribunals at University College, London. But, until now, such tribunals have been set up under the aegis of the United Nations, where, once more, we come up against the Russian veto.
Yet, despite all these obstacles, preparing a Putin prosecution is not a pointless undertaking.
The ICC’s chief prosecutor, Karim Khan QC, has opened a war-crimes investigation. Another top British lawyer, Sir Howard Morrison — one of the ICC judges who oversaw the trial of the Serbian war criminal Radovan Karadzic — has become an independent adviser to Ukraine’s lead prosecutor, Iryna Venediktova, who already has substantial files of war-crime evidence. Legal authorities in Germany, Spain, and Poland have begun building a case on which to issue international arrest warrants for the Putin inner circle.
Prosecutors are sifting through intelligence reports, intercepted Russian army communications, sequences of satellite images, forensics from the killings, and on-the-ground evidence from Ukrainian troops and the international media. Gathering evidence is part of what marks out the difference between juridically independent legal systems and a repressive authoritarian dictatorship.
The prospect of seeing Vladimir Putin in the dock may not be imminent. But the mere fact of public indictment might be enough. Some time after the ICC issued an indictment of the Sudanese leader Omar al-Bashir, his own people forced him from power. There is more than one way to skin a bear.
