The trial of Vladimir Putin: Geoffrey Robertson on the scenarios

The question of whether Putin is guilty of aggression is quite simple. Robertson’s book discusses this issue in detail, but does not address more difficult questions seriously enough, such as whether it would be wise to try Putin in his absence – while he remains at large in Moscow – rather than physically in the dock.

To simplify the law just a little, a leader who orders an invasion of another country is generally guilty of aggression, unless the act is in self-defense or approved by the United Nations Security Council.

In 2022, Putin ordered an invasion of Ukraine. Russia claimed this was self-defense, but its arguments are made of cardboard, props from a pantomime performed for its allies and domestic audiences. You just have to breathe on them to knock them down.

Robertson generally does this well, although he overlooks the most elaborately constructed Russian argument: the fiction that two parts of eastern Ukraine, Donetsk and Luhansk, were independent countries that Russia stepped in to help.

He also addresses the separate question of whether Putin is guilty of war crimes. These are crimes committed during a war, as opposed to the crime of unlawfully starting it. A challenging issue here is that Putin himself is not on the ground in Ukraine. Evidence would be required that in his role as commander he is responsible for actions carried out by subordinates.

One of the stronger elements of the book is Robertson’s explanation Where Putin could be put on trial. The International Criminal Court has jurisdiction to try him for war crimes, and issued an arrest warrant for him in 2023 for the war crime of transferring Ukrainian children to Russia.

Can it also try him for aggression? In fact, this is not possible, for reasons that ultimately reflect the reluctance of countries to expose their leaders to prosecution. Instead, a special aggression tribunal should be established, in the tradition of the Nuremberg trials against the Nazis.

Robertson takes his readers through every step of the trial: the construction of a tribunal, the case against Putin, the case in his defense, a separate war crimes trial, and the aftermath – including whether Putin should be executed, which seems unlikely but which Robertson controversially argues “should be seriously considered”.

The book sometimes reads almost like a work of fiction, even though it is formulated in the future tense: the prosecutor “will” argue this or that; there is “probable living evidence from witnesses”; “there will be a pause at the end of this evidence to allow each legal team to prepare a final presentation”; the judges must reach a decision “within three months”.

It is not pure fiction; it is speculation based on Robertson’s experience. The details he imagines will bring these potential future trials to life for readers less familiar with the inside of a courtroom than he is.

At the same time, a certain banality emerges here. Does Robertson really have to tell us three times that statements need to be uploaded to the internet? Or four times that they have to be translated into Russian and Ukrainian? This detail also contrasts with his less thorough discussion of the difficult questions.

Rhetorical devices

The International Criminal Court requires suspects to be physically present during a trial. But in theory, a special aggression tribunal could try Putin even in his absence, depending on how the tribunal is set up.

Whether Putin should be tried even in his absence is a difficult question, because there are arguments on both sides. On the one hand, there is no global police force that can swoop into the Kremlin and handcuff him, so a trial in his absence is the only kind of trial that is likely to happen and that could at least turn international opinion against him .

On the other hand, a trial in the absence of the suspect is often perceived as unfair, because the suspect does not have the opportunity to challenge the evidence against him or present his own evidence.

Even if the judges convinced themselves that it was fair under these circumstances, this would still allow Putin to do so portray the trial is seen as unfair, as biased against him, as a Western sham – and that could have the opposite effect on international opinion, defeating the whole purpose.

Robertson does not spend enough time weighing these arguments. Instead, he uses rhetorical devices such as hyperbole: if “international law is to have any meaning,” he writes, a trial in the absence of the suspect “must be acceptable.” Does the validity of the entire legal system really depend on everyone agreeing on this complex issue?

He is also somewhat dismissive of those who disagree: they have “a stubborn attachment… to having the defendants present.” Elsewhere he describes this attachment as ‘obsessive’.

Another example of a difficult issue is the right to remain silent, which is seen as another aspect of procedural justice. Robertson criticizes this, saying that it “gives a man who has given orders to kill thousands the right to stand back and laugh”.

The problem is not that Robertson’s views on these issues are necessarily wrong. These are complex issues that people will disagree on. It is that he gives the impression that complexity does not exist.

Dismissive language is a more general characteristic of his writing style. Some will enjoy it; it will hinder others. He reserves his most biting comments for his fellow lawyers. They suffer from “the affectation of Latin quotations and long-standing precedents.” They are ‘wordy’. Putin, who has a law degree, “is intelligent, as lawyers call it.”

The implication is that Robertson is atypical among lawyers, someone who casts aside convention and assumptions. In fact, the book contains a fair amount of Latin – tu quoque And a fortiori and so on – and only a few of his arguments are really bold.

But if there’s one thing to say, it’s that not many experts take the time to explain how international law works in books for a broad audience. This is extremely valuable, especially in a period when expertise is often drowned out by untruths. These are sometimes spread deliberately to undermine democracies such as Ukraine or Western countries, and sometimes spread recklessly by uninformed, opinionated and vocal people. Robertson has taken his time.

The United Nations

One of the bolder elements of the book is what Robertson says about the United Nations. As he notes, five major powers – Britain, China, France, Russia and the United States – cannot be held accountable by the UN Security Council because they have the right to veto its decisions.

He makes the startling claim that the “diplomats who designed the UN in 1945 did not appreciate this fatal flaw” – as if they were handing out these vetoes absent-mindedly, when in reality they were making clear-eyed political choices after hundreds of hours of negotiation and compromise. .

Robertson claims that the “most obvious and clearly correct reform” would be to prevent any of these superpowers from using their veto “if there was a conflict of interest”.

There is certainly debate about the vetoes. But has Robertson thought about the consequences of this “obvious” reform? One is that the Security Council could, for example, authorize the United States to take military action against another nuclear-armed superpower: is that outcome ‘clearly correct’? Robertson does not elaborate further.

He also states that the UN should be able to expel Russia. The same logic could be used to justify expelling the United States, Britain and Australia, which were accused of unlawfully invading Iraq in 2003. Robertson compares the UN unfavorably to its predecessor, the League of Nations, which “expelled the Soviet Union because of the attack on Finland.” .

This is a strange comparison. The League of Nations is known for its catastrophic failure. One of the many reasons for that failure was that during World War II most of the major powers were no longer members. The UN is designed to prevent its mistakes from being repeated, to keep everyone in the tent, on the theory that a global organization that can achieve some things – even if not everything – is better than nothing at all.

While these elements of the book are daring, they come across as a bit politically naive.

Readers alert to these and other weaknesses of the book will still learn much from its strengths, especially the discussion of what a trial against Putin might look like, either in the unlikely event that he is arrested and is physically taken to prison. or if enough countries accept Robertson’s position that he should be tried in his absence.

Those interested in this broad area of ​​law, if not this specific topic, might also look at alternatives, such as the thoroughly researched books of Philippe Sands.

This article is republished from The Conversation under a Creative Commons license. Read the original article.