Putin must be prosecuted before International Criminal Court

Russian president has no valid legal justification for attack on Ukraine

It is right that the maximum economic sanctions are imposed on Russia in response to its gross violation of Ukraine’s sovereignty in launching an unprovoked aggressive war against Ukraine contrary to international law. Sanctions should not only apply personally to Vladimir Putin and his foreign minister Sergei Lavrov, to Russian banks, financial institutions, companies and some rich Russian oligarchs who have prospered from their relationship with Putin.

It is right that they have broader application, specifically targeting Putin’s enablers who are directly complicit in Putin’s decision-making and are a part of the Kremlin governing structure. They include members of the Duma, the Senate, Putin’s Security Council, the Presidential Council, the top echelons of the security and defence services and the top state television employees who spread propagandist disinformation.

Sanctions will initially have limited, if any, impact on Putin’s conduct and their imposition but possibly not their extent will have been anticipated by him. Moreover, Germany’s mothballing last week of the Nord Stream 2 gas pipeline, due to German dependence on Russian gas, was likely viewed by him as a temporary inconvenience that time would correct.

To Putin, sanctions are an inevitable part of the United State’s, the EU’s and Nato’s playbook and currently of minor personal temporary consequence. In so far as sanctions impact ordinary Russians, they are utilised by him in propaganda to depict the USA and western Europe as the enemy. As his international critics are determined to avoid using military power, directly confronting Russia and becoming embroiled in a war over Ukraine, he sees retaliatory sanctions more as a sign of weakness than of strength. However, their unprecedented depth and unexpected immediate impact, together with the EU’s unprecedented decision to finance the purchase and delivery of weapons and other equipment to Ukraine, may change that perspective.

Putin perceives himself as the embodiment of mother Russia and is on an imperial mission to restore the old Russian and Soviet empires and dominated spheres of influence

Putin is at the height of his domestic political power. While his Ukraine war could ultimately prove to be his undoing, he delusionally perceives himself as the embodiment of mother Russia and is on an imperial mission to restore the old Russian and Soviet empires and dominated spheres of influence. Surrounded by dependent and cowed acolytes, he believes he is free to act with impunity.

Criminal adventurism

To protect the continuing credibility of the international legal order, the rule of law and to deter both Putin and other autocrats and dictators from such international criminal adventurism, it is crucial to remove all doubt as to ultimate accountability and seriously detrimental personal consequences.

The International Criminal Court was established under the Statute of Rome in 1998 to end impunity for the perpetrators of the most serious crimes of concern to the international community and to contribute to the prevention of those crimes. Russia and Ukraine are not among the over 120 state parties to the statute but Ukraine has accepted on an open-ended basis the court’s jurisdiction over alleged crimes committed on its territory. Russia’s actions in Ukraine and those responsible for them are therefore amenable to the court’s jurisdiction.

The process towards bringing prosecutions before the court for violations of international law is commenced by the court’s permanent prosecutor, Karin Khan, on his own initiative or following a request by a state party or state parties to the Rome statute. A preliminary examination conducted by the prosecutor’s office into the commission of war and other crimes in eastern Ukraine, in the areas of Donetsk and Luhansk, has resulted in it concluding that there is a reasonable basis for believing that alleged war crimes and crimes against humanity have been committed.

Khan on Monday stated that he intended to apply to the court's pre-trial chamber for permission to open an investigation and that he intended to include any such crimes committed in Ukraine since Russia's invasion last week. When doing so, he explained the process would be speedier if a state party to the court specifically requested it undertook an investigation. Any such initiative by the court must render the conduct of Putin specifically subject to investigation.

Putin has made clear his contempt for and intent to destroy the concept and fact of an independent Ukraine. He has launched an unjustifiable aggressive war of invasion and bombed Ukrainian territory and civilians. No valid legal justification exists for Russia attacking, invading and occupying any part of Ukraine contrary to the false, Orwellian narrative promoted by Putin and Lavrov.

Manifest violation

Under the Rome statute “a crime of aggression” is “the planning, preparation, initiation or execution, by a person in a position to effectively exercise control over or to direct the political or military action of a state, of an act of aggression which by its character, gravity and scale constitutes a manifest violation of the charter of the United Nations”. An act of aggression means “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state”. Such acts can include, among others, invasion, military occupation and annexation by the use of force or blockade of the ports or coast. Russia’s conduct and invasion of Ukraine constitutes such criminal action and Russian troops in Ukraine are an occupying force. Russia’s conduct and any atrocities committed may also extend to the crimes of genocide, crimes against humanity and war crimes under the Rome statute.

Putin has made clear his contempt for and intent to destroy the concept and fact of an independent Ukraine

It is not states but individuals who are prosecuted by the International Criminal Court under the Rome statute. There is no doubt that Putin, as prescribed by the statute, is the perpetrator of an “act of aggression”, being the person who effectively exercises control over and directs the political and military action of the Russian state. He is also responsible for any other crimes committed in Ukraine under the statute by Russia’s military, the FSB (Russia’s federal security service), the SVR (Russia’s foreign intelligence service) and other Russian state agencies and agents. Responsibility may also be assigned for crimes relating to Ukraine to other Russian state actors and also to Belarus’s president and Russia’s puppet tyrant, Alexander Lukashenko, from whose state troops streamed into and invaded Ukraine. But that does not diminish Putin’s primary personal responsibility for Russia’s attack on Ukraine.

Ireland, as a party to the Rome statute, together with all other EU party states, should this week respond to Khan’s Monday statement by specifically requesting that he immediately proceed with an investigation into events in Ukraine and that it include an investigation into Putin’s conduct and responsibility for the conflict with a view to his ultimate arrest and prosecution before the International Criminal Court.

Alan Shatter is a former minister for justice, equality and defence, and a former member of the Justice and Home Affairs Council and Council of Defence Ministers