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The Case of Vladimir Putin: Limits and Possibilities of Liability Under International Law

posted 2 years ago

For almost two weeks now, we have been hearing and seeing the war in Ukraine in the media, and in the press, Facebook, Instagram accounts and other social media. The virus is spreading through hard-to-understand videos that shock people with horrific images from Ukraine. So everyone naturally has questions: who will be responsible for this and when? What are the legal and practical possibilities for the administration of justice? While most world leaders recognise Russia’s invasion of Ukraine as a clear violation of the United Nations (UN) Charter and an act of aggression under international law, the consequences of which must be blamed not only on the state but also on its leader, Vladimir Putin. Not as simple as it may seem from the side.

“Inherited” Membership of the UN Security Council

The United Nations Security Council, responsible for maintaining international peace and security, is a permanent member of one of the six most important United Nations bodies, based on the UN Charter, and includes collective measures to prevent and counter threats to peace and to suppress aggression. It can be said that the UN Security Council has successfully achieved its intended goal to this day, but here is one “but”: The Russian Federation inherited (although the USSR Constitution does not provide for the succession of the USSR) permanent membership in an organisation whose decisions directly affect not only Ukraine’s national security and Security in the Black Sea region, but also the whole world. Without widening the question of the legitimacy of Russia’s veto, Article 23 of the current UN Charter states that the Union of Soviet Socialist Republics, and not a separate republic – the RSFSR or the Russian Federation – is one of the five permanent members of the UN Security Council.

It is worth remembering that the UN Security Council (and the UN Charter in general) was established by the Allies who “won” World War II. With the establishment of the UN Security Council, the powers of states such as China, France, the United Kingdom, the United States and Russia (as the successor to the USSR) were functionally above the law. They became permanent members of the Security Council (known as P5) and vetoed UN action. This was done explicitly to prevent the UN from taking action against Member States and to allow them to strike a balance between each other’s ambitions. However, the system only works when the P5 agrees to abide by the rules.

This was successful during the Cold War, as no P5 state felt comfortable enough to act unilaterally and upset that balance, but as this turbulent balance of power collapsed after the collapse of the USSR, the willingness of P5 members to exercise restraint began to wane. In the 1990s, the US and the UK used the UN Security Council to approve their expansive military activities. Later, when Russia and China felt confident enough to use their veto power (following the invasion of Iraq in 2003), the US and UK simply acted unilaterally, and the UN Security Council was powerless to prevent it as planned.

The Removal from the UN Security Council Should be Approved by Russia Itself

Basically the same scenario is happening now, and Russia is disregarding international norms, and its aggression against Ukraine can be seen as an abuse of its veto power in the UN Security Council. The situation could change with the reform of the UN Charter to exclude Russia from the UN Charter, but this proves to be functionally impossible – the UN Charter does not provide for the possibility of changing or extending one country’s permanent membership of the UN Security Council to another. Although Article 109 of the UN Charter allows for changes, this requires the consent of all P5.

So, in order to remove Russia from the Security Council, Russia should agree to it, but it is probably clear that this will never happen, and the International Court of Justice has not legally helped the “USSR” to change the Russian Federation in the UN Security Council. Although the prospects for the elimination of Vladimir Putin within the framework of the UN Charter are vague, for Ukraine it is one of the means to legally use force to defend against aggression, and may request military assistance from other countries (Article 51 of the UN Charter states the right to individual and collective bargaining).

Ukraine has Recognised the Jurisdiction of the ICC

Political and military leaders are empowered to exercise jurisdiction over very serious crimes that cause concern to the international community by the International Criminal Court in the Hague. The jurisdiction of this court and its activities are governed by the 1998 international treaty – Rome Statute (ICC Statute). 123 States have ratified the ICC Statute, and 17 have signed but not ratified it, including Russia. Moscow has signed but not ratified the ICC Statute, as Vladimir Putin revoked Russia’s signature in 2016, a few days after the ICC report in Russia’s 2014 report. The annexation of Crimea was described as an occupation. The ICC, again in 2016, launched an inquiry into Russia during 2008 efforts to support the breakaway regions of Georgia.

Although Ukraine is also not a member of the ICC, it has indefinitely recognised the jurisdiction of the court for crimes committed on its territory since the beginning of the Maidan Revolution in November 2013, and 2014 when Russia invaded Crimea. The International Criminal Court has jurisdiction over the responsibility of decision-makers concerning Vladimir Putin and the Lukashenko regime.

How could Russia’s Actions be Qualified?

Does Russia’s military action meet the definitions of international law? According to Article 5 of the Rome Statute. The ICC has jurisdiction over crimes such as genocide, war crimes, crimes against humanity and crimes of aggression, which are specifically defined in the Rome Statute as “the deliberate harassment of all or individual civilians not directly involved in hostilities; civilian objects […] the attack or bombardment by any means of unprotected towns, villages, dwellings or buildings which are not for military purposes”. According to the United Nations, the term “war crimes” refers to serious violations of international humanitarian law committed against civilians or “enemy fighters” during an armed conflict.

The rules were agreed during the conflicts after World War II in 1949 – Geneva Conventions signed by all UN members, including Russia.

Perhaps Putin’s most obvious crime is the “crime of aggression.” According to the Rome Statute, the “crime of aggression” is “the planning, preparation, initiation or execution of an act of aggression by a person capable of effectively controlling or directing the political or military action of the State”. By its nature, gravity and scale, it is a clear violation of the UN Charter. The act of aggression means “the use of the armed force of a state against the sovereignty, territorial integrity or political independence of another state”. Such actions may include, but are not limited to, invasion, military occupation and annexation using force or port or coastal blockade.

Russia’s behaviour and invasion of Ukraine are in line with this treatment of crime, and the Russian army in Ukraine may be subject to the wording of the occupying power. Thus, judging by the scope of the definitions of war crimes in international law, Russia’s behaviour today and any atrocities committed may also include crimes of genocide, crimes against humanity, as well as war crimes.

For War Crimes, Imprisonment for Life

The International Criminal Court may exercise its jurisdiction over any of the offences set forth in Article 5 of the Statute of the ICC if one or more of those offences are referred to the ICC Prosecutor by a State Party under Article 14 of the Statute of the ICC.

Lithuania has already submitted a report to the prosecutor requesting an investigation into the situation in Ukraine regarding war crimes against Russia and Belarus under Article 8 of the Rome Statute and crimes against humanity under Article 7 of the Rome Statute. As many as 39 national governments, most of them European countries, have approached the prosecutor with requests to investigate the situation and decide whether to prosecute one or more specific individuals for committing such crimes. A preliminary investigation by the prosecutor’s office into war and other crimes in eastern Ukraine, Donetsk and Luhansk areas concluded that there were reasonable grounds to believe that suspected war crimes and crimes against humanity had been committed.

If Putin were convicted of war crimes, he could face life imprisonment. Any sentence longer than 20 years would still be like life imprisonment for Putin, who is almost 70 years old. It is also important that the International Criminal Court does not run courts in absentia (without the convict’s personal presence) and would have to be extradited to Russia or arrested outside Russia, which could be anywhere in Europe, including the UK.

From a time perspective, decision-making in war crime cases in courts usually takes several years. A preliminary study of hostilities in eastern Ukraine lasted more than six years, from April 2014 to December 2020. At the time, the prosecutor said there was evidence of war crimes and crimes against humanity. Further steps have been slowed by the COVID-19 pandemic and lack of resources in court.

In this case, however, history may change even in legal practice – and prosecution may be different, as we have a unique international outrage against Russia and overwhelming support from dozens of countries.

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