Because Ukraine is a party to the International Criminal Court, its prosecutor has the power to investigate war crimes committed on its territory and has begun to do so. Putin may claim that he did not order them directly, but according to Article 28 of his statute, the court bears the “responsibility to order” if he does not prevent them or, as soon as he realizes, has not ordered the prosecution of the perpetrators. For weeks, he has remained concerned about the war crimes committed by his forces, and only for this reason should he be indicted in The Hague. Even if there is little prospect of his presence, it is an important step: Milosevic’s indictment was the point at which his family began to turn against him. Russia is not a party to the ICC, so Putin should be tried for the crime of attack by a special tribunal set up by the UN Security Council – a step that the current Russian government would veto. But there can be no time limit for this crime, and in some future trial his prosecution would be simple. He is guilty, beyond any reasonable doubt, of the crime of assault. Proof of this guilt is easy, because the crime – which was defined and added to the ICC jurisdiction only in 2017 – means the use of armed force for “obvious” violation of the UN Charter by invading a sovereign country. The “Manifesto” is judged by “character, gravity and scale”. His invasion of Ukraine clearly satisfies this test and there is plenty of evidence. Putin’s lawyers would have an almost impossible task of showing that Russia acted in self-defense, which is allowed under the UN Charter. It is nonsense to imply that Ukraine was a threat to Russia. There was a civil war in Donbas, but there was no danger of it spreading to Russia. In addition, Putin’s supporters would be tied to his own supposed defense, that is, that he invaded to stop the genocide. This would be allowed under the Genocide Convention, but it is simply a lie to say that the Ukrainian government or army had genocidal intentions in relation to the citizens of Donbass. Undoubtedly, for political purposes, Putin’s lawyers will seek to rely on what is called a “tu quoque” defense – citing “I did it but you did it” – citing the Bush-Blair invasion of Iraq in 2003. is not a defense at all, but there would be a simple, albeit technical, answer to that. The law of aggression, as it is authoritatively defined, dates back only to 2017: what happened in 2003, and in many cases in the past, is irrelevant. Putin will not be tried in The Hague soon. But if and when he is, the international judges – the court has no juror – should sentence him and sentence him to life imprisonment, their most severe punishment. In the meantime, it is important to recognize the overwhelming case against him and to treat him as an international criminal. And the prosecutor of the international court must be funded so that he can gather all the evidence – a successor can one day use it. Geoffrey Robertson QC presided over the UN war crimes tribunal in Sierra Leone. His latest book is “Bad People and How to Get Rid of Them”
