March 20, 2023
Even as Americans prepare for the spectacle of Donald Trump’s various arrests and trials, his patron Vladimir Putin finds himself confronted by a far more demanding set of legal predicaments. In the past few days, a number of very interesting things have happened, which I thought I would signal in this post. The wheels of justice may turn slowly, and certainly it is easy to be frustrated when obvious atrocities are not met with immediate formal condemnation. That said, it is hard to think of many moments when so much legal attention was paid over a short period to a single dictator. So, a quick and incomplete rehearsal might be useful:
- The creation of a group of more than thirty states preparing the way for a special tribunal for the crime of aggression. A working group will meet, March 21st. Aggression is one of the core crimes to be tried by the International Criminal Court at the Hague, and is defined by “the planning, preparation, initiation or execution, by a person in a position effectively to 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.”
The crime so defined is committed by individuals rather than states, so it would seem to apply to Vladimir Putin and other high political and military officials of the Russian Federation. Of all the crimes committed in and with respect to Ukraine, this one is generally regarded as the simplest to try and prosecute. The formidable legal mind Philippe Sands has lent his support to just this approach. At Just Security you can find a selection of articles on the topic.
- The appearance, on 16 March, of the “Report of the Independent International Commission of Inquiry on Ukraine” to the Human Rights Commission of the United Nations. It documented “willful killings, unlawful confinement, torture, rape, and unlawful transfers of detainees from the areas that came under the control of Russian authorities in Ukraine.” These include a “widespread pattern of torture and inhuman treatment committed by Russian authorities against the people they detained” as well as “cases of sexual and gender-based violence involving women, men, and girls, aged from 4 to 82, in nine regions of Ukraine, and in the Russian Federation.” The report specified that rapes “were committed at gunpoint, with extreme brutality and with acts of torture, such as beatings and strangling. Perpetrators at times threatened to kill the victim or her family, if she resisted.”
- The issuance by the International Criminal Court, on 17 March, of an arrest warrant for Putin for war crimes, the first charge being the abduction of children from Ukraine. This has been one of the ghastlier Russian practices, one to which I and others have been trying to draw attention for a year. The issuance of an arrest warrant by the ICC is the most politically consequential of recent events, since it defines Putin as a wanted suspected war criminal subject to arrest by any country that acknowledges the ICC (which is most of them). It is also not a signal that can be ignored by Russian elites as they ponder the future of their country. It will hinder Putin’s
international travel, and not only in the obvious sense. Henceforth he will have to wonder, every time he gets into an airplane, whether the pilot might just deliver him somewhere where he is subject to arrest.
The kidnapping of tens (or more likely hundreds) of thousands of children is certainly a war crime, but it is worth noting that some war crimes are also genocide. The 1948 genocide convention specifically defines it as such. Genocide is thought to be a harder crime to prosecute, because the convention also specifies that the actions must be accompanied by an intent to destroy a group. This war is historically unusual, however, in that Russian authorities and propagandists have provided a constant, public flow of evidence of intent.
- The public collapse of Russia’s victimhood narrative. In addition to flooding the zone with so much atrocity advocacy that we are meant to take it for granted and not notice, Russian authorities and propagandists have pursued another preemptive defense strategy: to claim that the real problem is the “russophobia” of Ukrainians, which somehow justified the invasion and all of the crimes. This defense strategy seems to reveal awareness of guilt — among many other problems.
As I took part in a 14 March session called by the Russian Federation at the Security Council on “russophobia”, I could not help but notice that no one, even the Chinese, believed that anything of this sort was taking place. Almost every diplomat who spoke made the obvious point that a critique by one country of the politics of the other is not a reason for an invasion and for war crimes.
In my own briefing, I tried to make a couple of basic points: (1) that if we were truly concerned about harm to Russians, we would attend to the policies of the Russian Federation itself; and (2) that the claim that Ukrainians have an illness called “russophobia” is a typical colonial effort to displace the actual experiences of the victims of an imperial war. In context, the claim of “russophobia” by Russian officials and propagandists is part of a panoply of hate speech directed against Ukrainians and designed to justify mass crimes, including mass murder. In that sense it should be understood as an element of ongoing Russian war crimes, which in my opinion include genocide.
Given this specific abuse of its place on the UN Security Council, and against all this backdrop, it is grotesque to imagine that Russia is about to assume the chair of the Security Council. Although one might believe that the United Nations does not matter, or get lost in the tangle of its various agencies, the UN has in fact provided a platform for Russian propaganda for the past year and more. Chairing the Security Council gives Russia the opportunity to set agendas and make appointments that will at the very least consume needed time and at the very worst divert public discussion away from obvious crimes.
Interestingly, a good case can be made that Russia has no right to chair the Security Council at all, since the Russian Federation never formally joined the United Nations. The Soviet Union was a permanent member of the Security Council; but the Soviet Union is not Russia, and ceased to exist more than thirty years ago. All of the other post-Soviet states were either already members of the UN as Soviet republics (Ukraine or Belarus) or went through the application
procedure to join. Russia never in fact did this. Ukrainian diplomats refer to Russia as “occupying the seat of the Soviet Union,” and this formulation is precise. There is no doubt that Russia’s formal role at the UN has provided cover for its crimes, so the crimes are as good a reason as any to reconsider that formal role.