The Trial of Vladimir Putin E-Book

Geoffrey Robertson

• Herausgeber: Biteback Publishing
• Kategorie: Fachliteratur
• Sprache: Englisch

Seitenzahl: 246

Veröffentlichungsjahr: 2024

Beschreibung

Vladimir Putin's war against Ukraine has cost hundreds of thousands of lives and is fundamentally an attack on democracy. Under international law, the invasion of a United Nations member state which poses no imminent threat to the invader amounts to the serious crime of aggression. But can Putin be prosecuted? And if so, will he ever be held to account? This remarkable book, by one of the world's most celebrated human rights lawyers, shows how the Nuremberg trials of Nazi leaders validate the prosecution of Putin. Ironically, Putin's defence hinges on a doctrine invented by George W. Bush to justify his invasion of Iraq, which Geoffrey Robertson exposes as contravening international law. If Putin fails to attend court, Robertson argues that he could be tried fairly in his absence, ensuring a verdict that will give pause to China and other countries which look to destroy democracy. This brilliant deep dive into international law offers a unique perspective on an unjust war, highlighting why democracy is not safe unless Putin can be put – at least metaphorically – behind bars.

Leseprobe

i“This book is essential reading for all who wish for a better world. It explains how the Nuremberg legacy – that crimes against humanity must be punished – has been lost and why the current system is not fit for purpose. With his characteristic style and wit, Geoffrey Robertson sets out ways to stand up to the Russian dictator under the law of nations and to improve our current legal defences for democracy.”

Amal Clooney

“In this brilliantly argued book and in his inimitable style, Geoffrey Robertson shows us that only by prosecuting Putin – in his absence, if necessary – can the rule of law be vindicated and his and others’ acts of aggression be deterred.”

Gordon Brown

“This is a really important book. Putin is guilty of killing hundreds of thousands of innocent people, including children and other civilians – he is as much an international criminal as Stalin, yet so far, he has got away with this appalling crime of warmongering. Geoffrey Robertson shows why he must be brought to account and how international law offers the prospect of bringing him to trial.”

Bill Browder

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vTo the memory of Alexei Navalnyvi

vii‘The sovereign who … takes up arms without a lawful cause … is chargeable with all the evils, all the horrors of war: all the effusion of blood, the desolation of families, the rapine, the acts of violence, the ravages, the conflagrations, are his works and his crimes. He is guilty of a crime against the enemy … He is guilty of a crime against his people … Finally, he is guilty of a crime against mankind in general, whose peace he disturbs, and to whom he sets a pernicious example.’

emmerich de vattel,the law of nations, 1758viii

Contents

Title PageDedicationEpigraphIntroductionChapter 1The Nuremberg legacyChapter 2Constructing a courtChapter 3The case for the prosecutionChapter 4Putin’s defenceChapter 5War crimes: At the ICCChapter 6After the trial is overChapter 7A world safe for democracy?AcknowledgementsIndexAlso by Geoffrey RobertsonCopyright

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Introduction

Any potential reader who presumes to judge this book by its cover – i.e. its title, TheTrialofVladimirPutin – might find it a hypothetical too far, an exercise in wishful thinking. How could this political giant, with personalised power over Russia and almost 6,000 nuclear weapons at his beck and call, be made accountable to any court set up by other countries?

That was my view, on 24 June 2023, as I boarded a 24-hour flight from London to Sydney. The plane was equipped to receive Al Jazeera and CNN, which shortly after take-off were reporting that Yevgeny Prigozhin, ‘Putin’s chef ’, head of the Wagner Group of mercenaries who had been doing the deadliest work in Ukraine, had begun a ‘march for justice’ on Moscow. He had declared that Putin’s justification for war – genocide against Russians by Ukrainian Nazis – was nonsense and that Russia was in no danger from NATO but more xiifrom its own venal and incompetent generals. By the time my flight reached Dubai, his army had reached the command centre of Rostov-on-Don, having shot down a number of army helicopters, and he was pictured being welcomed by its citizens. Putin appeared briefly on the screen, with the colour drained from his face and looking suddenly vulnerable, talking of treason.

I watched – no sleep was possible – as Prigozhin drove off towards Moscow. I was excited at the prospect of Putin’s overthrow but terrified of the consequence of Russia’s nukes coming under the control of this deranged figure. By the time we were over Perth, Prigozhin had stopped his march, just 200 miles short of the capital. A few weeks later, his plane crashed and burned, killing a few of his cronies along with the pilot, co-pilot and a 39-year-old flight attendant. (The CIA now believes the plane was sabotaged by the FSB, successor to the KGB, with a bomb fitted to its wing while refuelling.) In any event, the moment passed by the time we reached Sydney and I confess to an overwhelming feeling of relief, that Russia’s nukes were still under the control of a bad man rather than a mad man.

But the episode demonstrated that Vladimir Putin may not be invulnerable. That was thought of Slobodan Milošević, when he was indicted by a UN tribunal, but the West failed to realise that he was silently despised by many decent Serbs who voted him out and dispatched him for trial at The Hague in return for the lifting of sanctions. Putin is seventy-one xiiiand can stay in power, constitutionally, for another twelve years, but age may take a toll and the Russian economy may tank as a result of sanctions brought about by his decision to go to a war which he may yet lose. International justice has no time limits: Radovan Karadžić and Ratko Mladić hid from it for seventeen years but ended up in its prisons convicted after fair trials. So did Hissène Habré, the torturer of Chad, who managed to stave off a trial for almost as many years. The gold medal for avoiding legal nemesis is held by a French Cambodian businessman indicted for funding the radio station in Rwanda which summoned the Hutu people to commit genocide (‘the grave is only half full – who will help us fill it?’). For twenty years after his indictment, he hid in Nairobi and Paris, until dragged to court in Arusha, by which time dementia had set in and he could not be fairly tried.

If this is Putin’s fate, it will still afford some consolation to his victims – the people of Ukraine. Crimes against humanity are unforgivable and unforgettable but justiciable because the records, many visual, still survive, collected by prosecutors and (in Putin’s case) by a number of institutions in Ukraine and Europe, which have been busy amassing evidence of the war crimes committed by Russian forces in Ukraine as a result of Putin’s invasion. Although he appears safe at present, with his generals and ministers paying him obeisance and having no political rival (Alexei Navalny xivhaving now been murdered or died from ‘sudden death syndrome’ at his prison in the Arctic Circle), change may come as it did with Milošević, and Putin may end up, years from now, shuffling into the dock like some old Nazi. But the dock of which court, and charged with what offence? The world must now prepare for this possibility and be ready to put him on trial for committing the greatest crime, causing the most casualties, since the Nazi blitzkriegs of the Second World War.

There is another reason for preparing a trial, namely the prospect of conducting it inabsentia– without Putin being physically present. Such trials are frowned upon by many Anglo-American lawyers, who say they are not trials at all because a defendant by definition cannot contest the evidence or instruct counsel. But for all that, they are permitted in France and many other European countries – and most importantly in Ukraine. The UN’s Human Rights Committee, arbiter of international fair trial standards, has accepted that inabsentiatrials can conform to such standards if ‘accused persons, although informed of the proceedings sufficiently in advance, decline to exercise their right to be present’. This is subject to a condition that there must be a retrial should the absent defendant later appear to contest their conviction. A conviction of an absent defendant will give some solace to victims of the crime, although by no means as much as if they see the malefactor sent to prison, and will at least provide an authoritative judicial account of what happened. xvColonel Gaddafi’s malevolence was exposed when his intelligence chief was convicted inabsentiain France for blowing up a passenger plane over Niger. The same impact was not achieved by the Amsterdam court which convicted two Russian soldiers and a Ukrainian separatist inabsentiafor murder by shooting down Malaysia Airlines Flight 17, for one very good reason: they were not represented, and the more appropriate verdict, of manslaughter by gross negligence, was never argued.

If international law is to have any meaning, inabsentiatrials must be acceptable, so long as those indicted are properly defended by amici curiae – ‘friends of the court’, i.e. experienced advocates assigned to argue on behalf of a defendant who refuses to be present. This method enables questions of law to be properly adjudicated and available defences to be fully developed, albeit without the instructions of a defendant who insists on staying in their cell – or in Moscow. It allows the decision, where the court is composed of distinguished international judges, to have a certain force, both in stigmatising defendants and in giving some satisfaction to their victims. In Putin’s case, any tribunal called upon to try him for the ‘crime of aggression’ will have all the facts and all his relevant speeches and writings. There would be nothing that he could add to his defence by his physical presence, because ‘self-defence’ requires an objective appraisal of the well-known facts, while his intentions were clearly stated at the xvitime. So far as war crimes, however, these must be charged before the International Criminal Court (ICC) – one crime, the unlawful transportation of children, has already been charged in this way – but that court has no power to hear such cases in his absence, unless its member states amend its statute. This may well be the only way to bring Putin to trial, and so the case for doing so will be considered in this book as well as the more familiar, but obviously less likely, possibility of having him physically present in the dock.

• • •

Putin’s war commenced with the invasion of Ukraine on 24 February 2022, and it has taken innocent lives, both Ukrainian and Russian, every single day it has continued. At time of writing, in early 2024, tens of thousands of Ukrainian civilians have been killed, about 1,000 of them children, and many more have been seriously injured, attacked by Russian forces with drones, bombers and tanks, taking the lives as well of many thousands of Ukrainian soldiers and defenders. Russian troop losses are estimated to be four times heavier – well over 100,000 – with legions more injured. Not a day goes by without some atrocity: the bombing of civilian homes and apartments (as seen regularly on television), a drone hit on a church or on children playing outside a pizza restaurant or a direct hit on a blood transfusion centre or a xviipublic hospital clearly marked on aerial maps as non-military targets but blasted nonetheless, by Russian commanders well aware they are committing war crimes with the approval of a supreme commander-in-chief who is more likely to award them medals than to prosecute them. In some war crimes, he is directly involved – for example, he has boasted about approving the transportation to Russia of Ukrainian children, for which his arrest is sought by the ICC.

In short, Vladimir Putin is a man who kills children and kidnaps them and bombs their houses, their parents and their families. He is the man responsible for starting this war, and he can be tried for two different classes of crime. The most heinous is the crime of aggression, which means that he ordered the invasion of a United Nations member state with force of the ‘character, gravity and scale’ amounting to a ‘manifest’ breach of Article 2(4) of the UN charter, which prohibits states from invading one another. The only defence – and Putin has notified the UN that this will be his and Russia’s defence – is that of ‘self-defence’ under Article 51 of the charter, where the aggressor state (i.e. Russia) is itself reacting to a threat (from Ukraine or its NATO allies) and is in imminent danger of attack. This must be Putin’s defence, if he is ever put on trial, and he will have to convince the court that the same defence advanced by US President George W. Bush for the invasion of Iraq, namely ‘pre-emptive self-defence’, is valid in law – i.e. that Putin’s fear that Ukraine xviiiwould join NATO and invade Russia was sufficient to entitle him to strike first. Aggression is a very serious crime – a person who starts a war is responsible for all the death, destruction and suffering that it brings in its wake. It carries the most severe sentence – death, for the Nazi leaders convicted of it at Nuremberg (where aggression was prosecuted as a crime against the peace), and life imprisonment for the likes of Putin today (international courts do not have the death penalty, although the US insisted that Saddam Hussein should be hanged and might apply the same reasoning to a tribunal charged with punishing Putin).

The problem of trying Putin for the crime of aggression, of which he is obviously guilty unless he can prove that he acted in self-defence, is that there is no court which has the power to try him. Only leaders of forty-five countries have specifically agreed to be bound by the ICC’s limited jurisdiction over this offence, and Russia is not one of them. So there will have to be a new court created to do so and an ‘aggression tribunal’ is slowly being constructed in The Hague. The work is not easy: it must have the power (which can come only from international law) to invalidate any amnesty Putin has been given (and an amnesty will certainly be a condition of any peace treaty with Ukraine). The court would also need to have the power to sweep away head-of-state immunity (or the immunity of an ex-head, as Putin might be by then), an immunity which protects him from trial under local law in xixUkraine or in the courts of any other state. For that reason, the aggression court would need to be set up as a fully fledged international court acceptable to the International Court of Justice (ICJ), where Putin could challenge it. A ‘core group’ of thirty-nine Western states are at work on constructing such a court, and the European Union has donated €9 million to open an investigative office in The Hague. But the tribunal itself will take some time before it is open for business, and it is unlikely that Putin will agree, or could be forced, to attend. So it must be given the power to try him inabsentia, if international law on the use of force is to be vindicated.

At the ICC, a second type of offence – specific war crimes committed in Ukraine – can be investigated, prosecuted and punished. War crimes have been settled for centuries and are enumerated in the Geneva Conventions and in Article 8 of the Rome Statute of 1998 which established the ICC. They include: the deliberate killing of civilians, by execution, bombing or other military means; the transportation of children; rape and pillage; the targeting of hospitals, churches and museums; bombarding towns, villages and buildings which are not military objectives; and launching unnecessary attacks knowing they will cause ‘widespread, long-term and severe damage to the natural environment’. Russian forces have been accused of committing all these crimes and more, and they are all a result of Putin’s war. He is the commander-in-chief, responsible for them all as the person who started xxthe war by the crime of aggression but who must be connected to individual atrocities before he can be punished as a war criminal.

The court has issued an arrest warrant for one war crime which there is no doubt that he ordered because he has publicly boasted of it, namely the transportation of Ukrainian children to Russia. Other crimes were ordered by generals who are directly responsible for them, but Putin awarded them medals instead of investigating and ordering them to be tried and punished. He can be charged with ‘command responsibility’ for the crime itself, under a doctrine that punishes a leader for turning a blind eye to crimes they could stop or deter. The punishment is less than that for a direct perpetrator, but conviction would put Putin in prison for quite a few years. The ICC has no power at present to try him inabsentia, so the prospect of him answering the arrest warrant in person will depend on whether, like Milošević, he is overthrown and sent to The Hague.

That much is clear from Putin’s reaction to the court when it issued the warrant for his arrest for the illegal transportation to Russia of Ukrainian children. His spokesman declared: ‘We consider all documents coming from this body as legally null and void … The ICC is indeed on the road to self-destruction.’ He followed with supporting quotes from Trump-era Americans like John Bolton, who hate the ICC and wish to destroy it lest it ever be minded to indict an xxiAmerican. But the pretence that the ICC warrant would have no effect at all was belied, a few days later, at Putin’s meeting with Chinese President Xi Jinping, when a supply of Chinese weaponry was expected to be offered for sale to Russia. But despite the routine declaration of friendship, China was not prepared to be branded as the supplier of munitions to a suspected war criminal. And then Putin’s invitation to an important conference (of BRICS nations, the R standing for Russia) in South Africa was withdrawn. South Africa is a member state of the ICC, and its law in consequence required the execution of ICC warrants on any who came within its borders. Putin had the taint of an international fugitive, compelled instead to meet Kim Jong Un, the North Korean leader, to buy more weapons to kill Ukrainians.

Nonetheless, Putin’s truculence and his nuclear power make his actual trial unlikely in the foreseeable future. In that case, the question is whether an inabsentiatrial is worth pursuing. It cannot be pursued at the ICC unless member states of the Rome Treaty amend its constitution (the Rome Statute) to allow such trials for indictments accusing Putin of war crimes. The ICC cannot, for reasons that will be explained, put him on trial for the most serious crime of aggression, which will require a separate court – an aggression tribunal – established so it can validly exercise international criminal law. Such a body was first urged within a few days of the invasion by former British Prime Minister Gordon xxiiBrown and championed by President Volodymyr Zelensky, who has devoted a good deal of his legal resources to support the emergence of such a court at The Hague, with financial input from the US and the European Union for the International Centre for the Prosecution of the Crime of Aggression Against Ukraine, an investigative mechanism that will collect evidence for a prosecution. Assuming that it does then develop into a court with distinguished international judges and a hotshot team of defence attorneys appointed as amici to take every point in Putin’s favour, would an inabsentiatrial and consequent authoritative judgment on whether he was guilty of the crime of aggression be worth more than the paper on which it is printed?

There is little doubt that a written and reasoned verdict, by unbiased and expert judges after a proper adversarial trial where evidence can be challenged before it is finally assessed, can carry weight in the world. The great result of the judgment at Nuremberg was to confound Holocaust deniers ever afterwards. An authoritative judgment on Putin, translated into Russian and Ukrainian, may serve to refute the suggestion by his propagandists that Ukraine was run by Nazis engaging in genocide, or that he had any lawful right to invade. Moreover, it would serve to vindicate international law by demonstrating that its breach had consequences, and by branding the instigator as a criminal, it would invite his diplomatic isolation and possibly even his overthrow by his own, xxiiishamed people. It might serve as a deterrent to other aggressors, like Ilham Aliyev of Azerbaijan, who was encouraged in 2023 by Putin’s seeming impunity to annihilate the little democratic enclave of Nagorno-Karabakh, confident that a Security Council poleaxed over Russian aggression would take no action about his own. The trial proceedings would be covered in the world media and would increase knowledge about international criminal law and its constraints on cruel behaviour by combatants. International law imposes a duty on states to prosecute certain crimes against humanity, but that duty does not necessarily extend to putting perpetrators in prison – trying them inabsentia, if there is no other way, would be a worthwhile and appropriate response to a manifest breach of international criminal law by a criminal like Putin with too much power to be arrested.

Vladimir Putin holds an extraordinary grip over political power in Russia – he bestrides his country like a colossus, unaccountable to its courts, its party of government, its bureaucracy, its compliant parliament or its lickspittle media. His advisers are self-selected, his opponents are in prison and his church worships his actions. There are many books and television programmes in the West that purport to analyse his mind and his motives and continue to treat him as a dictator – cold-blooded, capable and efficient. But this presents him as a politician conducting business as usual – the captain with a coterie of advisers steering the ship that is the Russian state. xxivThere is little public sense that he is a criminal, the boss of a gang that has killed many thousands of innocent people for no reason other than to enslave their descendants and dependants and to seize their land, homes and even their ethnic identity. This is behaviour that decent people would describe as ‘wicked’ were it the objective of a run-of-the-mill mafia capo, yet this mud does not stick to the suit and tie of the little President of Russia as his genuflecting guests sit at the end of his long table in the Kremlin as he goes about the business of the state. The importance of a trial, to transform Vladimir Putin in the public eye from a statesman to a crime boss, may be symbolic, but it is a symbol that reflects the truth.

A trial, by procedures accounted as fair, is the means by which a finding of guilt normally results in punishment. Fair trials are not perfect for this purpose, but they are the best we can do. So long as they are held in the open, with capable teams of lawyers on each side, evidence probed and tested by cross-examination, both sides able to call witnesses of fact and of expert opinion before judges who are utterly independent of any state or any other power (military, commercial or religious), then the result will be reliable and will determine whether Putin has broken the law and, to the extent that the law lays down a rule based on a moral principle, whether he is a bad – or, if preferred, a ‘wicked’ or even ‘evil’ – man. Ordering an invasion that will inevitably kill tens of thousands xxvof innocent civilians and hundreds of their children is, prima facie, a deeply wicked action, undertaken not by a statesman but by a mass murderer. It takes a trial to show the difference.

• • •

Chapter 1 of this book sets the stage, by explaining how international criminal law has developed since its initiation at Nuremberg and then through its legacy of ‘ad hoc’ UN courts in former Yugoslavia, Rwanda and Sierra Leone and eventually to the ICC. It will be necessary to give some background to the crime of aggression and its recent formulation and insertion into the statute of the ICC, which can only prosecute states that would never commit it, namely those which agree to be prosecuted if they do. The chapter will also explain the flaw in the UN charter, namely its reliance on the Security Council to save the world from ‘the scourge of war’ but the impossibility of that task when entrusted to ‘permanent members’ like Russia, China or indeed America, which can veto any action against themselves or their allies.

Chapter 2 further explains the crime of aggression and what has to be done to set up an aggression tribunal with the power to bring perpetrators which are not ICC members, like Russia, to account. Such a tribunal will need to circumvent some of the traditional problems in prosecuting presidents and foreign ministers that arose, for example, in the proceedings against xxviGeneral Pinochet – namely, the diplomatic immunity that the law generally accords to such personages and the amnesties they usually grant to themselves or receive as a result of peace treaties. There are questions of law here of some complexity, which have been responsible for delays in the construction of the aggression tribunal proposed by Ukraine and many like-minded states. As this is a book for a general readership, I have tried to keep treatment of these legal issues simple without becoming simplistic, and have avoided the footnotes and case references that choke up law books on the subject.

Chapter 3 cuts to the chase with a description of how the prosecution case will play out, whether or not Putin turns up to hear it. It should not take long, at least if the prosecution sticks to the facts which show that this was not some ‘special military exercise’ but a full-blooded invasion from the start. The intention to occupy Ukraine can be proved by Putin’s own speeches, before and after the invasion, and by photographic evidence of his tanks rolling towards Kyiv. His mindset will be evidenced by an essay he wrote in 2021 to the effect that Ukraine should be considered as part of Russia, and by his attempts, on the eve of the invasion, to grant independence to separatists in the Donbas area in the coal-rich east of the country. The prosecutor could charge Putin separately with aggression for his forcible annexation of Crimea in 2014, although this would extend the hearing and enable him to invoke a wider range of defences. His answer to the charge is anticipated in Chapter 4,xxvii as a ‘dream team’ of defenders would argue that his actions were justified by ‘pre-emptive self-defence’, a doctrine invoked (in fact, invented) by George W. Bush’s lawyers to excuse the invasion of Iraq in 2003. The irony of Putin relying on a legal argument that Russia (along with the UK and Australia) then rejected as a perversion of international law is stark, but it is the only way that Putin could be acquitted.

War crimes, as set out in the Rome Statute of the ICC, are the focus of Chapter 5. They would be tried separately to the aggression charge and, in all probability, only if state parties to the Rome Treaty allowed the ICC to conduct trials in absentia. However, now that a number of countries permit war crimes prosecutions under universal jurisdiction laws, it is possible that peripatetic Russian officers and officials may be arrested on their travels and forced to have their day in a foreign court. Trials in Ukraine would be appropriate because that is where the crimes have been committed, but that nation has indicated its preference that any high-ranking suspects they capture should face an international process which cannot be accused of bias, and trials at the ICC come with a reasonable guarantee of fairness.

Chapter 6 looks at what Putin’s punishment should be if he is convicted. Should he hang, like Saddam Hussein and others who have started wars? Thus far he has ‘got away with it’ and faced no serious consequence for a crime that has caused hundreds of thousands of deaths of Russian and Ukrainian civilians xxviiiand soldiers. This book points to the fatal flaw in the structure of the United Nations, which leaves the General Assembly as a talking shop and gives all power to a Security Council that can be – and now is – hamstrung by a veto reserved to its five permanent members who use it to protect themselves and their allies from accountability for crimes against humanity. The very fact that the UN could not expel Russia, even were it to drop a nuclear bomb on Ukraine, because Russia would veto its own expulsion, demonstrates why it is not fit for its purpose of keeping peace in the world. In Chapter 7, I discuss other examples of how, influenced by Russian impunity in Ukraine, aggression by Azerbaijan has snuffed out the little democracy of Nagorno-Karabakh, and there has been no retribution for the military coup in Myanmar or the violent end of a transition to democracy in Sudan. The so-called rule of international law is no rule at all, unless some attempt is made to reassert it, and that alone makes the case for putting Vladimir Putin, in person or in his absence, on trial.

If the war against Ukraine in time winds down to become a ‘frozen conflict’, it is still important to have an authoritative verdict on who started it and who has to pay for it. If the aggression tribunal is clothed with the full power of international law, it could order compensation against Putin, whose personal wealth is reportedly huge, with assets spanning several jurisdictions. They could be stripped from him and paid to his victims in Ukraine, even were he convicted in xxixabsentia