Ukrainian-Russian war: Vladimir Putin’s atrocities justify prosecution, but how to put him in the dock? — Martin McLaughlin

An unreasonably provoked war is fueled by Putin and Putin alone. He rejected all attempts to end the conflict and demonstrated a bloodthirstiness that defies any reasonable intervention.

After more than three weeks, it seems like the only way to end this is to get him convicted of many atrocities. US President Joe Biden called Putin a war criminal, and Foreign Secretary Liz Truss said there was “very, very strong” evidence of war crimes being committed in Ukraine.

She added: “Ultimately the International Criminal Court has to decide who is a war criminal and who is not, and we have to present the evidence.”

This may be true, but even getting to the stage of prosecution against Putin is far from easy.

Prosecutors are notoriously difficult to prove intent to commit war crimes – of the 45 people charged by the ICC, 10 were convicted. The burden of proof in the Court of Public Opinion is significantly lower than in The Hague, and time-consuming preparatory work is required, such as verification of video evidence.

However, in this case, the evidence is not the main stumbling block. It is hard to imagine how Putin’s brazen encroachment on the sovereignty and territorial integrity of Ukraine cannot be qualified as a war crime. This was clear back in 2014.

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Last weekend, Vladimir Putin attended a concert marking the eighth anniversary of Russia’s annexation of Crimea. Photo: Sergey Guneev/AFP/Getty

The daily atrocities committed in besieged Mariupol and elsewhere have changed the rules of the game. Russia’s targets were a maternity hospital, a shopping center and a theater where children took refuge. Both actions, individually and together, only strengthen the case against Putin and clarify the argument that he has violated the very foundations of the world’s legal order.

ICC Chief Prosecutor Karim Khan QC said there are reasonable grounds to believe that war crimes and crimes against humanity were committed in Ukraine, and this was in the last week of February, long before the wave of devastating attacks on civilian targets. across the country.

Geoffrey Robertson QC, a prominent human rights lawyer, has since argued that Mr Khan and his team “would have no difficulty in arguing that the invasion of Ukraine was an act of aggression, given its scale and the appalling consequences of death and destruction.” “.

He added: “The prosecutor will only need to name evidence of these facts: a Ukrainian government minister, several victims who witnessed or were injured during the bombings, and transcripts of Putin’s own public speeches. There will be enough photographic evidence to provide evidence.”

The ICC, which is already gathering evidence on the ground in Ukraine, must then determine whether Russia’s actions are consistent with the crimes it is prosecuting, namely: war crimes, genocide, crimes against humanity and the crime of aggression. The fact that 41 countries have referred cases of Russian atrocities in Ukraine to the ICC provides additional momentum and resources for this task.

The last offence, taken by the court four years ago, is perhaps the most important. It authorizes it to take action against the planning, preparation and execution by a State, military or political leader of “an act of aggression which, by its nature, gravity and scope, constitutes a clear violation of the Charter of the United Nations.”

Notably, Putin himself would be directly open to being prosecuted for crimes of aggression – the ICC specifies that the crime only applies to senior leaders who “exercise control” or “direct the political or military activities of the state.”

The problem, however, is how to square the circle. Russia may have signed the Rome Statute governing the ICC in 2000, but has never ratified the membership agreement. Meanwhile, six years ago, he formally withdrew his signature from the founding act, a day after a court released a report classifying the Russian annexation of Crimea as an occupation.

This is a difficulty, although not an insurmountable one – the ICC has the right to exercise jurisdiction over Ukraine, and anyone suspected of having committed offenses in this territory, regardless of their nationality, can therefore investigate the activities of Russian commanders waging war in Ukraine, and, according to idea, Putin himself.

A more serious problem is the fact that Russia is a permanent member of the UN Security Council and will be able to veto if and when the Council goes to court.

The fact remains that the ICC may try to hold Putin accountable for other war crimes, but the question is how it will do so in practice. The Court has never tried anyone in absentia, and the Rome Statute explicitly rejects such a possibility.

For Putin to appear in The Hague, Russia would have to extradite him or arrest him in a foreign state that signed the treaty. At present, none of the scenarios looks likely.

There are other scenarios in the game. Ukraine has already filed a lawsuit against Russia in the International Court of Justice, but this is not a criminal court.

The most interesting proposal is the idea of ​​a special international tribunal tasked with investigating Putin. The idea, backed by former prime ministers Gordon Brown and Sir John Major, is a way to overcome a loophole in the law that limits the jurisdiction of the ICC.

This is a bold and long-awaited idea. However, this is also hampered by an obvious problem: how to detain Putin and physically put him in the dock. Until this issue is resolved, bloodshed and suffering will continue.

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