International Law and Putin’s War

  

While Vladimir Putin continues what most of the rest of the world believes to be a brutal, unlawful and unprovoked invasion of a sovereign state – even as Russian media continues to fabricate justification for that brutal attack on neighboring Ukraine, functioning democracy – there is a parallel, non-miliary track to justice under international law. Although international courts have little in the way of an enforcing police force, they do sway global and often local (to the home of the offenders) opinion and limit an “indicted” fugitive’s ability to travel.

We can start with an attempt, vetoed by Russia, to censure Russia at the UN Security Council. A powerful censure at the UN General Assembly – 141 nations in support, 35 abstentions, out of 193 countries – adds opprobrium to the mix, but again, little in the way of enforcement. NATO and many allied or sympathetic nations, even neutral Switzerland, have agreed to honor some or even all of the severe economic sanctions that have dominated recent headlines. 

The impact on Russia has been profound, spiraling that nation towards a full-on depression, but Vladimir Putin’s repressive regime has turned a blind eye to the suffering of his own people. The rest of the planet suffers too, with accelerating higher prices for basic commodities. It is unlawful in Russia to call the brutality in Ukraine, with serious criminal consequences, a “war.” In Russia, Putin’s war is officially only a “special military operation,” sold to his people as stopping Kyiv’s “genocide” against Russian-speakers in Ukraine breakaway eastern provinces and to remove the purportedly repressive “Nazi” regime that governs the country. Thousands of anti-war protestors in many Russian cities have been arrested and could face 15 or more years in prison for their actions.  

Nevertheless, there are formal legal actions being taken by international courts, both against Russia itself and beginning to focus on possible criminal charges against Putin and his top commanders. These include prosecution under four criminal categories specifically delineated by the International Criminal Court, created in 1998 under the multinational Statute of Rome: 1. Genocide (specific intent to destroy in whole or in part a national, ethnic, racial or religious group), 2. Crimes against humanity (a large-scale attack against any civilian population), 3. War crimes (grave breaches of the Geneva conventions in the context of armed conflict and include, for instance, the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes) and 4.  Aggression (use of armed force by a State against the sovereignty, integrity or independence of another State).

While much of the world cries for an accelerated criminal investigation of Vladimir Putin, leading to an indictment, of one or more of the above, it is not so simple. The first three categories require proof that the individual indicted actually and volitionally caused the illegality. This requires a chain of testimony from witnesses and victims as well as actual soldiers and commanders who physically implemented the forbidden acts all the way up to Putin himself. Though proof clearly exists, gathering and legally documenting that essential evidence takes time and a lot of cooperation, including from individuals unlikely to testify. The last category, “aggression,” is much easier to prove even based on Putin’s own statements. However, that provision been watered down in part because of American insistence. The United States, having failed in Vietnam and soon mired in Iraq and Afghanistan, raised the bar on any prosecution under “aggression.” That provides Putin with some wiggle room to contest an indictment based on that category, if he even cares to address an indictment at all.

However, there is an entirely different tact under international law as well, one where an entire nation file claims against another’s unlawful acts. On March 7th, Yale Law School reported: “On Feb. 26, Ukraine requested an urgent decision ordering Russia to halt all military action after its invasion last week [then only against the breakaway eastern Ukrainian provinces, later expanded]. The request argued that Russia had created a judicial dispute regarding the application and interpretation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”), which both Russia and Ukraine have ratified… The ICJ [International Court of Justice] is the United Nations’ court for resolving disputes between nations, established in June 1945 by the Charter of the United Nations and seated at the Peace Palace in The Hague (Netherlands)…

“Ukraine’s application argues that ‘[t]he parties…have a factual dispute as to whether genocide, which is defined by Article II of the Genocide Convention, has occurred or is occurring in the Luhansk and Donetsk oblasts of Ukraine.’ And that ‘the parties also have a legal dispute as to whether, as a consequence of Russia’s unilateral assertion that genocide is occurring, Russia has any lawful basis to take military action in and against Ukraine to prevent and punish genocide pursuant to Article I of the Genocide Convention.’

“At the hearing, Ukraine sought to ‘establish that Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide.’ It asked the court to rule on both the factual disagreement and Russia’s claim to legal authority to take military action in and against Ukraine… At the hearing on March 7, [Yale Law School Sterling Professor of International Law, Harold Hongju] Koh presented Ukraine’s closing argument in favor of appropriate provisional measures and asked for a prompt ruling.

“Russia sent the court a letter saying that Russia ‘had decided not to participate in the oral proceedings.’ Nevertheless, a court ruling is expected within weeks… Koh called this a ‘singular case that until now, most have contemplated only in the hypothetical: a Permanent Member of the United Nations Security Council decides, with planned premeditation, to commit naked aggression and war crimes by launching a broad and brutal military campaign against an innocent neighbor and its civilian population, based on the false pretext that the target state is committing genocide. When confronted by such open illegality, is this Court utterly powerless to stop it?”

We know that Putin is an international pariah, one who actually and genuinely threatens the very existence of NATO and even the United States in addition to Ukraine. He has intervened in American elections with massive online campaigns of disinformation. Russian state-sponsored hackers have assaulted American institutions, from small town governments to hospitals and financial institutions, with threats to shut down our power grid and the Internet, the backbone of our economic connectivity. He has ordered assassination of those who oppose him, not only in Russia but in international cities as well… even London. He is a danger to us all. But most of all, he is a violent and unrestrained criminal, hellbent on invasion, actual and de facto annexation, no matter how many innocents he must slaughter. We could be next.

I’m Peter Dekom, and we have not witnessed such an immoral and brutal tyrant in Europe since the abomination of Adolph Hitler in WWII.