Why Putin will never be tried in The Hague even if his crimes do not go unpunished

One Monday morning, Alfred Yekatom he looked impassively around the room as a witness described how his family survived a night of looting he allegedly orchestrated. The former head of the Central African militia faces a disappointing record. In addition to murders, torture, the creation of a children’s army and the looting of a mosque in 2013, one charge stands out: for crimes against humanity. That’s why Yekatom, who denies all charges, was in the dock far from his home in The Hague, the Dutch city that is home to the International Penal Court (CPI), with a scarf to protect against the spring cold. Procedures are slow. The trial is now in its third year. If a trio of blue-robed judges convict him, he faces a long prison sentence.

where there are thugs Central African Republic, Will a Russian president follow? “Vladimir Putin in The Haguehas become a rallying cry for those who want Ukraine’s war mastermind to face a judicial response commensurate with the carnage he is causing. The case is morally overwhelming, born out of the atrocities committed by Russian troops, the bombing of civilians, and the very act of trespassing on a neighbor’s home. All this certainly deserves punishment. Volodimir Zelensky, President of Ukraine, has made the prosecution of senior Russian leaders one of his 10 points for securing peace. Annalena Baerbock, German Foreign Minister, is one of those calling for Putin to be brought to justice. Foreign investigators are in Ukraine to preserve evidence for a future trial.

Now, the obvious reality: Putin is not going to find himself in the dock at the ICC anytime soon. The limited international criminal justice that exists today simply does not apply to the leaders of nuclear-weapon countries. However, there are still chances that some Russian crimes will be prosecuted.

Putin’s effective immunity is a consequence of the fragility of the international judicial system. While justice in countries has clear statutes and established courts, international law is determined by jurists as treaties are signed and standards are established. Countries may or may not join at their discretion; in any case, there is no global police force to enforce it. A first obstacle for those who would like to see Putin in prison is that Russia has not signed the ICC. It does not matter, say some jurists: the UN could create an ad hoc tribunal, as was done with Rwanda oh Yugoslavia in the 1990s after the massacres that took place there. Slobodan Milosevic, the Yugoslav president, spent his last years in court and died in a Dutch detention center. This could be just what Putin needs.

Precedents are important in international law, and none exist that could land Putin in jail. There are two broad categories of charges Russian war officials could face. One includes war crimes and crimes against humanity: when civilians are attacked during conflict, for example, or when soldiers rape and loot. Soldiers who commit these outrages can be prosecuted (as some Russians have already been in Ukraine). In theory, their commanders and policy makers can also be held ultimately responsible. In practice, it can almost never be shown that they ordered such behavior.

This is why Ukraine and its allies talk about the second category of charges: the crime of aggression. The act of invading a neighboring country can be directly attributed to politicians. But the prosecution of a crime of this type is very uncharted legal territory. In the only two cases where this has happened – the trials of Nürnberg there Tokyo who followed the Second World War– the countries concerned invited the defendants (both governments were led by the United States and its allies). Unless Russia is invaded or Putin is overthrown, this will not happen.

The courts of Rwanda and the former Yugoslavia no longer offer any hope. Both were created by UN Security Councilwhich has endorsed other similar courts in places like Sierra Leone. Since Russia exercises its right of veto, it is unlikely to be repeated. Some lawyers believe that the United Nations General Assembly (where each country has one vote and cannot veto) could convene such a tribunal. But this solution would push international law beyond its current limits. And victory is not guaranteed: many countries, including the United States, are not in favor of giving more power to international courts.

Two options remain, neither of which is satisfactory. One is to prosecute the Russians through the Ukrainian legal system, perhaps in court backed by foreigners and with international judges. This would not have the symbolic value of a trial in The Hague: only lower-class Russians would be prosecuted, in what would appear to be punitive justice. The other would be to allow the CIC to prosecute Russian war crimes and crimes against humanity, but not the crime of aggression, which does not fall within its current jurisdiction in the case of Russia. For that, it is enough for Ukraine to recognize the authority of the court in The Hague, which has thus opened an investigation into Russia’s actions. But few believe a case can be made against Putin. In any case, he generally does not try suspects in absentia.

Objection!

Ukraine’s preferred plan is the creation of an ad hoc tribunal in The Hague, independent of the CIC and capable of prosecuting the crime of aggression and therefore prosecuting the Kremlin. It’s also not realistic. Worse, it could discredit the CIC in its nascent attempt to pursue such cross-border attacks in the future, says Olivier Corten, professor of international law at the Free University of Brussels. The CIC’s pursuit of war criminals on the battlefield, while avoiding the grand prize of catching Putin, would not be merely symbolic. Anyone who might fear prosecution by the CIC – generals and Wagner Group types, for example – would be reluctant to leave Russia for fear of being taken to The Hague. It would be a kind of punishment.

Being content with this approach does not necessarily mean giving up on Ukraine. For if the international community cannot prosecute Putin’s crime of aggression, it must redouble its efforts to ensure that the crime is not paid for: by providing Zelensky with the weapons and the money he needs to defeat the invading force.

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