GEOFFREY ROBERTSON The Trial of Vladimir Putin. Reviewed by Braham Dabscheck
Geoffrey Robertson argues that the United Nations needs to establish a new court in order to bring Vladimir Putin to justice.
Geoffrey Robertson is an internationally renowned lawyer specialising in human rights, and is a champion of the role of the courts in dispensing justice:
The reason why a court … carries weight is precisely because it delivers a form of justice. There is a sense that in a true adversarial setting, with an ‘equality of arms’ between prosecutors and defendants, disputing each other’s evidence in public, with final decisions made by impartial judges, there will emerge a verdict that is right and just.
Robertson wants Russian president Vladimir Putin to be charged with war crimes following Russia’s invasion of Ukraine in February 2022, and the transporting of Ukrainian children to Russia following earlier military interventions against Ukraine in 2014. His major problem is finding a means to bring about such a prosecution given realpolitik and the current operation of international courts. To understand these issues requires an examination of the United Nations and its three key institutions: the General Assembly, the Security Council and the International Criminal Court (ICC).
The ICC tries and investigates individuals charged with war crimes and the crime of aggression. It should not be confused with the International Court of Justice (ICJ), which investigates and adjudicates disputes between nations. As Robertson is concerned with bringing Putin to justice, the ICJ has no role to play here.
All members of the UN participate in sessions of the General Assembly, which Robertson describes as little more than ‘a talking shop’. Power within the UN resides with the Security Council, which comprises 15 members, ten of whom rotate, and five permanent members: China, France, Russia, the United Kingdom and the United States – the victors of World War II. The permanent members have the power to veto decisions of the UN.
An ICC prosecutor has recently made application for arrest warrants of the respective leaders of the war between Israel and Hamas. On 17 March 2023, the ICC issued arrest warrants for Putin and the Russian Commissioner for Children’s Rights for the alleged unlawful deportation and transfer of Ukrainian children to Russia.
However, China, Russia and the United States are not members of the ICC. For the latter two in particular, this is to escape sanctions against their respective heads of state for their (numerous) invasions of other states since World War II. Robertson observes:
… the UN is worthless as a guarantor of peace, because it cannot stop [the Security Council’s] permanent members from going to war and cannot require them to enter into peace talks once they do.
Article 2.4 of the United Nations Charter states:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other matter inconsistent with the Purposes of the United Nations.
Robertson details the evidence against Putin since Russia’s invasion of Ukraine in February 2022, and contends that Putin should be charged under Article 2.4 of the UN Charter and the Rome Statute for the Crime of Aggression, as adopted in 2018. The problem is how to bring Putin to trial. How do you arrest someone who is in charge of a nuclear stockpile?
It is conceivable that a change of leadership in Russia could deliver him to the international community. But given the current political climate in Russia, the UN Security Council cannot be used as a vehicle to bring Putin to justice, as Russia would simply use its veto to block such an attempt.
Another possibility is that Putin could be tried in absentia. The ICC, however, as Robertson points out, does not have the power to conduct in absentia trials. France and the United Kingdom made sure that this would not occur when the Rome Statute was negotiated to protect American presidents from potential prosecution.
Robertson conducts a broad overview of developments over the ages in international law in dealing with aggression and warfare. He argues for the creation of an Aggression Court to hear a case against Putin and his violation of the UN’s conventions against wars of aggression. Such a court could be established by negotiations between the UN Secretary General and Ukraine, which would be endorsed by the UN General Assembly, bypassing the apparent need for the imprimatur of the Security Council. It is not clear, however, whether Russia could use its veto power to block the court’s creation, and Robertson does not address this possibility. The UN Charter bestows major powers on the Security Council for the running of the UN (and hence the veto power of its permanent members) in its quest for world peace.
Article 24 (1), for example, states:
In order to effect prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
If an Aggression Court could be established and was appropriately financed, Putin could conceivably be tried in absentia. Robertson explores what could happen should Putin refuse to engage with such proceedings and not instruct lawyers to defend him. Irrespective of this, Robertson maintains that lawyers could be appointed by the court to mount a defence on his behalf. To ensure the trial would be regarded as legitimate and fair, highly qualified and respected lawyers would need to be appointed, and no limits placed on the evidence, arguments and legal precedents they could use in his defence. Robertson examines the types of evidence and legal arguments that could be mounted against Putin, and the defences lawyers could mount on his behalf. For Robertson’s recommendation to work, it would be essential that the trial conform to the highest jurisprudential standards of a ‘fair’ trial, with evidence tested against the precepts of international law.
Robertson anticipates that Putin would be found guilty, and says:
There is little doubt that a written and reasoned verdict, by unbiased and expert judges after a proper adversarial trial where evidence can be challenged before it is finally assessed, can carry weight in the world … it would serve to vindicate international law by demonstrating that its breach had consequences … It might serve as a deterrent to other aggressors … The trial proceedings would be covered in the world media and would increase knowledge about international criminal law and its constraints on cruel behaviour by combatants.
In addition to the question of whether Russia could use its veto power to block the creation of an Aggression Court, it is also unclear whether such a proposal would be supported by the United States, which also has a history of acting aggressively towards other nations. To the extent that these issues can be overcome, there is then the problem of obtaining funds to create and run the court, including its staff and the array of lawyers who would be needed to ensure its smooth functioning.
Robertson anticipates that a case against Putin and a subsequent appeal, which he sees as being essential for ensuring the legitimacy of any findings, could run for at least three years. The next problem would be to work out where the court should be located. Should it be in The Hague, where the ICC sits? Or should it be elsewhere, with a separate courtroom and associated accoutrements?
The major strength of The Trial of Vladimir Putin is the valuable information it provides on the evolution of international law as the nations of the world – well, most of them – have sought to work for world peace and to deal with aggressive nations who wage war against others. While Geoffrey Robertson’s proposal to create an Aggression Court may or may not be achieved, The Trial of Vladimir Putin represents an honest and interesting attempt to overcome a problem that has bedevilled humankind since time immemorial.
Geoffrey Robertson The Trial of Vladimir Putin Biteback Publishing 2024 PB 210pp $34.99
Braham Dabscheck is a Senior Fellow at the Melbourne Law School at the University of Melbourne who writes on industrial relations, sport and other things.
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