How we plan to indict President Putin at the International Criminal Court

At the request of 39 countries, with Karim Khan the prosecutor at the International Criminal Court (ICC), Vladimir Putin is under investigation for war crimes and for crimes against humanity.

This is for the targeting of innocent civilians through rape, torture and mutilation, the bombing of hospitals schools and public buildings, the breach of designated humanitarian corridors and agreed to ceasefires. And, if recent reports are accurate, the use of banned chemical weapons. This week, for the first time, President Biden has accused Russia of genocide, a charge that historically America has been reluctant to make even when ethnic cleaning has been alleged in other parts of the world.

On Monday, Ukraine president Volodymyr Zelensky requested international partners to support the establishment of a special international military tribunal to investigate war crimes committed by Russian aggressors on the territory of Ukraine.

Today, we publish the text of a criminal indictment against President Putin for initiating and executing Russia’s war of aggression. Our charge sheet demonstrates the nature and gravity of the case that war crimes prosecutors could file before an international court.

While a gap in the law means the ICC cannot hear a case on aggression against Russia – neither Ukraine nor Russia are signatories to this statute of the ICC – a special tribunal can be constituted at the behest of Ukraine and supportive states. With the encouragement of the Ukraine government, the 1.7 million people who have a signed a petition, and 50 former presidents and prime ministers and international lawyers from every continent, this is what we have now joined together to request.

And to those who say such a tribunal can never happen and we are engaged in a forlorn pursuit of justice, let us remind people that not only did Nuremberg deliver prosecutions of Hitler’s henchmen, but war crimes in Yugoslavia, Rwanda and Liberia have been prosecuted too. Former Liberian leader Charles Taylor now languishes in a British jail after being sentenced to 50 years imprisonment for his war crimes.

While the collation of such evidence to link Putin’s orders directly to this perpetuation of evil will take months of painstaking and forensic research, the crime of aggression, that started some time ago with the planning and preparation of an invasion, can be proven by documentation that is readily accessible and fully available now and can lead, as the author of this initiative Professor Philippe Sands has argued to the laying of charges against Putin within weeks.

Aggression is Putin’s original crime as set out in the model indictment “Prosecutor v. President Vladimir Putin”, prepared by Ryan Goodman, Professor of Law at New York University and Rebecca Hamilton, Associate Professor of Law at the American University, Washington. It is in line with the declaration made by Allied countries in London in 1942 when, in what prepared the way for the Nuremberg trials of 1946, they pledged to bring Hitler and his inner circle to trial for their aggression which they also called “crimes against peace”.

It was at Nuremberg that aggression was defined not only as an international crime but as “the supreme international crime”, the crime that “contains within the accumulated evil of the whole”. It is one of history’s ironies that the idea of bringing criminal leaders before an international tribunal was forged in the Soviet Union; it was a Russian lawyer Aron Trainin who laid the conceptual groundwork for the definition then and now of the crime of aggression.

While the indictment published today is against President Putin, the definition of the crime of aggression could also apply to other senior Russian officials who were – according to the Rome Statute – in a “position effectively to exercise control over or to direct the political or military action of a state”. This charge could also be laid against Belarus president Alexander Lukashenko and other senior officials for “action of a State in allowing its territory, which it has placed at the disposal of another state, to be used by that other state for perpetrating an act of aggression against a third state”.

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New atrocities reported this week, as Putin resorts to even more desperate and barbaric crimes, have made international action against him more urgent and more essential. Allies of Ukraine will now have to extend sanctions and travels bans against Russia and they must also intensify humanitarian and military help, providing tanks and not just anti-tank missiles.

But even then Putin may still feel he can act with impunity. “When bad men combine, the good must associate,” wrote Edmund Burke more than 200 years ago, “else they will fall, one by one, an unpitied sacrifice in a contemptible struggle”. So it is time that our message that we will not stand aside but stand together and pursue Putin around the world reaches his inner circle who must be warned that they are also liable to punishment for crimes in which they have been complicit.

Perhaps even more importantly, an early agreement on such an indictment will send a message to the people of Ukraine that the whole world is watching on their behalf and that we will not allow war crimes to go unpunished or unprosecuted. And just as we proved at Nuremberg, we will take the decisions necessary to secure justice.

Gordon Brown is a former prime minister and is now UN special envoy for global education