Opinion

Send Putin To The Hague

John Ford Attorney
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Last week, pro-Russian separatists in eastern Ukraine used a sophisticated anti-aircraft missile system called BUK to shoot down a civilian airliner carrying 295 civilian passengers, killing all aboard. The rebels appear not to have known at all what they were shooting at nor does it appear cared very much, having made no effort to distinguish between military and civilian aircraft. The killing of 295 civilians is the most grisly indication yet that Vladimir Putin’s aggressive maneuvers to expand Russian power in Eastern Europe are a grave danger to the world.

In light of this latest atrocity it is time for the world to call Vladimir Putin what he is: A war criminal.

This is not rhetorical bombast. Vladimir Putin easily fits the legal definition of a war criminal under international law and can and should be indicted by the International Criminal Court.

The shoot-down of MH17 is a war crime. Article 8 of the Rome Statute (the treaty that created the ICC) plainly states that launching military attacks with the knowledge that the attack will cause a loss of life that is not proportional to any possible military advantage is a war crime. This principle of proportionality is a basic tenet of the law of war which is why this principle is written into the rules of engagement used by the U.S. armed forces and is ingrained in every U.S. soldier who goes into a combat zone. It appears that pro-Russian rebels are simply trying to shoot down anything that flies without having any reliable way of identifying what they are shooting at. This kind of indiscriminate attack carries massive risk of killing civilians with little or no possible military advantage. It is a classic case of disproportional use of force and is a war crime under the Rome Statute.

It looks like Russian forces did not launch the attack themselves, relying instead on pro-Russian separatist militias. This does not get Putin off the hook. The rebels are working closely with Russian security forces, even receiving anti-aircraft training in Russia according to multiple sources. Further, the missile system the rebels used (like much of their arsenal) may have been given to them by the Russians according to U.S. officials and the Ukrainian government, a conclusion supported by video of a BUK launcher being moved across the border. International law does not allow Putin to employ reckless paramilitaries, give them dangerous weapons and then when those weapons are used to massacre civilians proclaim that he is shocked, shocked that there is gambling in this establishment.

There is clear precedent for holding Putin accountable for the actions of pro-Russian rebels. Omar Bashir, the dictator of Sudan, was indicted by the ICC for war crimes committed by the Janjaweed militia in Darfur, though the Janjaweed are not formally part of the Sudanese armed forces. Slobodan Milosevic was indicted for war crimes committed by ethnic Serb paramilitaries in Bosnia and Kosovo, though these paramilitaries were not formally a part of the Serbian armed forces. Putin does not have plausible deniability. He has supported this rebellion from the start and he armed it with the very weapons it used to commit mass murder. He is now liable for law of war violations these rebels commit.

The shoot down of MH17 isn’t the end of what should appear on any indictment of Putin. The strongest charge against Putin is that he launched a war of aggression. This is the same charge that most of the members of the Nazi high command faced at Nuremberg. Ever since the Kellogg-Briand Pact of 1928, it has been illegal under international law to wage aggressive war. Putin has launched two separate wars of aggression against his neighbors, a feat matched in my lifetime only by Saddam Hussein. In addition to invading the Ukraine and annexing the Crimean Peninsula this year Putin also launched an invasion of Georgia in 2008. Neither war can be justified as self-defense. Both of these wars were blatantly illegal under international law. And then of course there is the brutal war in Chechnya, which Putin directed as Prime Minister in 1999, in which civilian populations were devastated by deliberate attacks on populated areas so brutal that the U.S. Holocaust Memorial Museum placed Chechnya on its Genocide Watch List.

These crimes would be easy enough to prove. The greater hurdle is jurisdiction. Russia, like the U.S., Israel, China, India, and many other powers has not ratified the Rome Statute. The ICC can only exercise jurisdiction over 1) nationals of states that ratify the treaty, 2) crimes committed in states that ratify the treaty, or 3) cases where the UN Security Council approves an indictment. This is how Omar Bashir was able to escape indictment for so long while violence in Darfur raged – he never signed the treaty and committed all his crimes on his own soil. The ICC had no jurisdiction until Bashir’s crimes became so outrageous that even his friends in Beijing were too ashamed to use their Security Council veto to protect him.

Russia never ratified the treaty so Putin would not ordinarily be subject to ICC jurisdiction. Nor would he ever allow the Security Council to approve an indictment. Nor has Ukraine ratified the treaty, meaning Russian crimes committed there are not ordinarily subject to ICC jurisdiction. But under Article 12 of the Rome Statute, a state can consent to jurisdiction even if it has not ratified the treaty. Ukraine could volunteer to give the ICC jurisdiction over Russian crimes in Ukraine. This provision has never been used but it does exist and for cases precisely like this one.

If the Ukraine were afraid to consent to jurisdiction, fearing Russian retaliation, another country could invoke this provision: Malaysia. Article 12 allows the state with whom a vessel or aircraft is registered to consent to jurisdiction over crimes committed on that vessel or aircraft. Malaysia can refer the case to the ICC because it was their jet.

If Ukraine or Malaysia consented to jurisdiction Putin would have no protection from an indictment. The fact that neither Russia nor Ukraine ratified the treaty would be irrelevant and Russia’s veto on the Security Council couldn’t be brought to bear.

Skeptics of the ICC might argue the court is so powerless it could not even bring Putin to trial, making any indictment a waste of time. This view is wrong because declaring what is true has a power of its own. The ICC still hasn’t brought Omar Bashir to trial but the very fact of his indictment has changed the way other states interact with his government. Sudan is a pariah state in part because of the indictment. Once you are declared a war criminal nothing is ever the same. The truth is that Vladimir Putin is a very dangerous person who has repeatedly and wantonly violated international law and the law of war. It’s past time we said so.