The question can be divided into two: the answer if he can be accused is affirmative, but if there ever will be a sentence becomes more difficult.
It can also differ if he is in power or has already abandoned it, since they are crimes that do not prescribe; and that it can be advanced, delayed or perhaps it will be conditioned if he wins or loses the war.
Let us add that a key element of any justice system is the presumption of innocence that must always be respected, no matter how clear it may seems to be the accusations, given the individual and personal character of the person or persons responsible and the different levels of involvement that international law recognizes, and practice accepts.
Finally, even before the invasion, we find a lot of fake news as in other wars, as part of two conflicting narratives, that of the Russian government towards its people and that of Ukraine towards a fundamentally Western audience.
Even the Courts are going to be questioned, the International Criminal Court (ICC) for individual crimes, for not having subscribed Russia to its jurisdiction, although in my opinion the International Court of Justice (ICJ), the most important organ of the system between States has jurisdiction, from the moment that both countries, in this case, both Ukraine and Russia recognized that capability, although whether or not it applies for example to the crime of genocide will be discussed.
As is widely known, the existence of the right of veto makes it difficult to use the international system, which still finds its ultimate foundation in the United Nations system. This is how the experience of the cold war left only two instances to try to circumvent that veto. In the first, a majority of 9 votes in the UN Security Council, can recommend the convening of the General Assembly (Resolution 377) that was attempted in this case.
In the second, and much more difficult to achieve, the country itself can abstain if it is affected by a dispute of its own, a step taken by Argentina in the Eichmann case with Israel, but almost impossible for Russia in its invasion of Ukraine. In any case, the end is well known, since nothing prevents the veto of another country, in this case China, and in the final decision, which is the authorization for the use of force, there must participate the five powers.
In any case, it can be said that we are witnessing a special moment, since everything seems to indicate that a door that was previously closed in cases such as Iraq for example is opening, and the figure of Putin can mark a before and after, as happened for former Heads of State in the arrest of General Pinochet in England in 1998 , although the recommendation is only one, that false expectations should not be created, since this can feed frustration and delay one’s own search for truth, justice and guarantee of non-repetition.
In order to regulate armed conflicts, there is the international humanitarian law of war, as is the case with the Geneva Conventions and the Additional Protocols, but many times the protection of victims has encountered two types of problems. The first is when the invading armies commit atrocities and barbarities, not as unintended consequences, but as part of their military strategy, no less in violation of legislation, but more difficult to pursue. It was seen in Syria and Libya, and earlier with the French army in Algeria and with the massive use of Napalm by the United States in Vietnam. And for what we have witnessed on television and social networks in the current invasion of Ukraine, experience show us, that contrary to what is assumed, it becomes more difficult to pursue a deliberate strategy against civilians than a specific event.
The second element has to do with the proof and responsibility of the culprit(s). Undoubtedly, the attack on civilians is a crime that should always be punishable, but the problem is how it can be transformed into a war crime, which happens by the one who orders it rather than by the one who executes it. That is, the big question of how it is possible to prove that it was for instance, by order of Putin or a commander on the ground, especially in the cases where the invaders simply retreat, regardless of having fulfilled their objectives.
In Putin’s case, the first thing is to clear that he can be accused. And with the information available, the crime that seems most accessible today is that of aggression, also unprovoked, so it is a manifestly illegal war, and, therefore, a crime, according to existing international law.
And there comes the problem of how he might be judged, on the basis that experience tells us that the leaders of important countries that have not been occupied by others simply do not come to trial, and that the ICC has been mostly concerned with African leaders and the losers of the civil war in the former Yugoslavia, which is not cynicism but basic realism.
More than an established court, this tells us that a special international criminal court would be needed. But how is it imposed on Russia, which could even retreat, although this is not seen as forthcoming. It is also unlikely that Putin will be deposed soon, but Russia’s protection could not be withdrawn, even if he were not in power.
If one follows some European leaders such as French or German, one notices that they have been especially careful not to refer to Russian leaders and not just Putin, in terms of war criminals. Perhaps it was also the reason why the Nuremberg Statute introduced the expression “crimes against peace”, the creation of the Soviet Russian jurist Aron Trainin.
Finally, there is a problem that harms Ukrainians today, which is that of the double standard, since it does not help that in Iraq, Libya or Syria there has been no prosecution, neither for Vietnam, nor in Afghanistan for Soviets or for Americans; or the interventions of France and the United Kingdom in former colonies in Africa and the Middle East went unnoticed, elements that create a precedent of hypocrisy.
Many images have emerged from Ukraine that break the soul, but in order not to create expectations without support, the experience of international trials for violation of human rights shows us that accusation is not enough, but that the standard to condemn is always high, and therefore, in war crimes photos are not enough to condemn, since to determine the responsibility of a crime requires decisive evidence of the participation of a person. In other words, as a conviction in a ruling must be “without doubt”, to discredit accusations, examples are repeatedly used such as the false massacre of Timisoara in Romania in 1989 or when new information transforms the previous version into false, as happened with that of Katyn (Poland, 1940) where the Soviet Union accused the Nazis, discovering only the truth with Gorbachev in 1990.
For their part accusations such as Biden’s genocide are particularly complicated, as they refer to the systematic and deliberate annihilation or extermination of a human group for racial, religious or political reasons. There is no doubt about the crime of aggression, the invasion of another country and the deliberate attacks on civilians, but an accusation of this type, without meeting the requirements, can become an aid rather than a detriment to the accused.
In conclusion, there has been so much impunity that progress is needed on this issue, and we go backwards when false expectations are created. There are serious bases for crimes such as aggression or those committed against civilians, and the best guarantee of non-repetition is obtained with the evidence provided in a trial.
I do not believe that Putin or any other leader of a world power of the Security Council will ultimately be arrested, but the cause of justice will be well served if at least progress is made with the proof of the accusations in the system, since we must always bear in mind that these are courts of law, and not anything else.
As there is no statute of limitations, this would represent a transition to a better world as the fence of the possible has been moved, at least in justice.
“The opinions published herein are the sole responsibility of its author”.
