Put this monster on trial. Let humanity be the judge

As Vladimir Putin’s war enters its third year, it is time to count the bodies. Ukraine admits to 31,000 deaths suffered by its troops. The actual toll is probably much higher, not to mention all the serious injuries. Tens of thousands of its civilians have lost their lives, including hundreds of children, while 21,000 young people have been kidnapped and taken by force to Russia.

Damage to infrastructure and housing and the environment has been huge. Russia has not dared to admit to the number of its military casualties, estimated at more than four times that of Ukraine. It is thought that by the end of this year, half a million people will be dead or disfigured.

What does international law say about all this?

Hear no evil? Russian President Vladimir Putin Credit: Sputnik, Kremlin Pool via AP

It says, very clearly, that Putin is guilty of invading another country for no good reason and, as one of the founders of international law, Emmerich de Vattel, said centuries ago, the Russian leader bears legal responsibility for “all the evils, all the horrors of war; all the effusion of blood, the desolation of families, the rapine, the ravages are his works and his crimes”.

Vattel, of course, could have had no conception of the further horror of nuclear war that Putin threatened only on Thursday against any NATO country that sent military forces to Ukraine’s defence. Sabre-rattling or not, the very threat of such attack constitutes, in my judgment, a crime against humanity.

Modern law makes a leader guilty if the United Nations Charter is breached by his decision to invade another member state with a force of the “character, gravity and scale” that makes the breach “manifest”. This definition of aggression fits Putin and his war like a glove.

The only defence Putin can offer – which he has already signalled to the UN Secretary General and to the obsequious American interviewer Tucker Carlson – is self-defence under article 51 of the charter. He claims his entitlement to attack and kill Ukrainians because the country might have joined NATO, and NATO might have attacked Russia. This is called “pre-emptive self-defence” – invented by George Bush’s lawyers in 2003 as an excuse for attacking Saddam Hussein in case he acquired nuclear weapons that he might one day use against the US.

It is ironic that Putin should rely on a doctrine that Russia, as well as all other countries except Israel, regarded as a perversion of international law, at a unipolar moment when the US could do and say pretty much what it liked. The United Kingdom and Australia did not endorse it but relied instead on a highly doubtful theory about the “revival” of an old Security Council resolution about Saddam’s invasion of Kuwait. America itself has since resiled from claiming a right to pre-emptive self-defence, which would be a blank cheque for any powerful country to invade another on mere speculation about its future hostility.

Putin’s defence would be rejected by any bench of international judges. But where is the court that can try him? The International Criminal Court has issued an arrest warrant for war crimes of organising the transportation of Ukrainian children, but Putin is unlikely to turn up in The Hague, and the court has no power to try him in his absence. It has jurisdiction to put leaders on trial for aggression but, absurdly, only if they agree to be tried. It cannot indict leaders of states that are not ICC members, such as Russia, China and America.

The ruins of Putin’s war. Credit: AP

So, 39 democratic nations, of which Australia is one, have formed a “core group” to set up an aggression tribunal – a court to put Putin on trial. It is not an entirely hypothetical prospect: he may one day be surrendered, like Slobodan Milosevic, by his own people, or be overthrown and end up hobbling into the dock like some old Nazi. But unless the tribunal has power to try him in absentia, the chances are he will entirely escape justice.

For leaders like Putin, trials in absentia must be an option. Anglo-American lawyers are opposed, but they work quite well in most European countries and in Ukraine itself, so long as any person convicted has the right to come back for a retrial.

It would be necessary for the absent Putin to have the strongest court-appointed defence – a dream team (Alan Dershowitz would be available, although I would not recommend Rudy Giuliani). The importance is to have every point in his favour taken before a bench of distinguished international judges, hearing and deciding whether the pernicious Bush doctrine of pre-emptive self-defence plays any part in the law.

There has been a recent flurry of academic voices in the West claiming that NATO, not Putin, is to blame for the war because it failed to honour promises made during the reunion of Germany (but never in writing) that it would not accept member states on Russia’s borders. This notion that Putin was unfairly provoked is peddled by a few American professors of international relations, but it is hard to credit them with intelligence or morality because they leave out of their equations the rights of Ukrainians to life and to liberty.

There is little doubt Putin will be triumphantly returned in this month’s presidential elections, by a people who now bear political responsibility for his crimes. Other nations are contemplating whether to break off diplomatic relations with Russia on the basis they represent a war criminal, and such representatives are unacceptable in a civilised society.

ASIO recently warned Russia’s embassy was swollen with spies (aka diplomats). They should be given a few days to decide whether to defect and then declared personae non grata. The Australian air, even of Canberra, is too pure for these warmongers, who support the killing and kidnapping of children, to breathe any longer.

But there are Russians, mainly young and university-educated, who would make ideal immigrants. Many thousands can be found in internet cafes in Armenia and Georgia, avoiding conscription for a war in which they would be expected to kill innocent people. Australia should offer them refuge from the ogre described by Vattel: “guilty of a crime against the enemy … he is guilty of a crime against his own people. Finally he is guilty of a crime against mankind in general, whose peace he disturbed and to whom he sets a pernicious example.”

Geoffrey Robertson KC is a London-based Australian human rights barrister. He is the author of The Trial of Vladimir Putin, which will be published by UNSW Press next month.

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