The acts that Vladimir Putin commits against Ukraine can perfectly be judged by the International Criminal Court and these are the legal arguments
There are many voices bringing Vladimir Putin and his associates before an International Criminal Court is a pipe dream. They argue that Realpolitik and the fact that Russia is a nuclear power makes it immune to sanctions imposed by any criminal court in the world.
If the two fathers of international criminal law, Raphael Lemkin and Murray Bernays, had lowered their arms to the near-unanimous criticism their theses received in their day, today we would be far from the international criminal system we have.
We must therefore insist that Putin can be held criminally responsible and these are five keys to understanding why:
The horrors we have witnessed in recent weeks by the Russian armed forces in Ukraine, such as the massacres of civilians in Bucha, the siege of the city of Kiev, the bombing of Mariupol and many other atrocities, can undoubtedly be war crimes.
But beyond their status as acts contrary to the Geneva Conventions, there is something more serious at stake. These are criminal acts of war that are counted among the most serious of the typical figures of international criminal law: the crime of aggression or aggressive war or, as originally formulated in Nuremberg, the crime against peace.
We are not facing a war, we are facing a heinous crime of international criminal law – the worst of all. Then the actions of the army of the Russian Federation on the territory of Ukraine and against its citizens do not result from a war (not even in appearance). They lack any trace of legitimacy or justification from the first moment, neither legal nor much less ethical.
The crime of aggression or crime against peace, in its original formulation in Article 6 of the Statute of the Nuremberg Tribunal, is divided into two extremes, designed by Murray Bernays:
The Conspiracy: Sui Generis co-authorship formed on a criminal agreement consisting of starting an illegal war against another state.
Membership: the individual responsibility for fulfilling a position within an organization or institution aimed at the implementation of the criminal justice plan.
So, to be perpetrators of the crime, Article 8bis of the Statute of the International Criminal Court requires them to enter into a criminal pact or criminal agreement, so only those persons who have sufficient capacity (actual and legal) to prepare , or perform acts of aggression.
This is why, more than in individual criminal acts, its criminal interest lies both in the potential to destabilize said international legal order, and in destabilizing the international security framework of humanity (thus making the charge of a real match of murders , murders, injuries, sex crimes, etc.).
Not only Vladimir Putin, but all leaders of the Russian Federation and its ally Belarus, in so far as they control or partially direct the political or military action of the state, who have not resigned or have opposed intervention in the armed conflict, intervened in the implementation of that pact or criminal agreement.
This pact does not require an express agreement, but is verified by the adjustment of the political and military institutions of the state, leading them to prepare, initiate or carry out acts of aggression.
There is a real reconfiguration of the structured field of socio-political interaction aimed at the perpetration of the international crime that is the aggressive war (for example, soldiers, officials, journalists of public authorities, etc.) in view of the unjust purpose (although always disguised as a pseudo-legitimizing discourse, such as the alleged struggle against Nazi elements).
or the above is hampered by the fact that Russia is not a member of the International Criminal Court or has adhered to its statutes. The United Nations Security Council may decide to establish an ad hoc court for these purposes or refer the matter to the International Criminal Court.
It will be said that such an approach is at the very least a chimera, given the possibility that Russia will veto it. However, there is an important doctrine that questions the legitimacy of the veto of a resolution on heinous crimes by one of the permanent members of the Security Council. His main argument against using the veto in these cases is that it costs human lives.
It is also necessary to consider the ruling of the International Court of Justice, from which a certain doctrine infers that the veto power conferred by the UN Charter should be used in a manner consistent with the norms of mandatory customary law (such as the Conventions of Geneva, the Nuremberg Principles, etc.), and does not in any way prejudice the duties of any member of the Security Council to provide an adequate response to any serious violation of the said rules and of international security.
International criminal law is not structured on international courts, but on national courts. Any state, whether or not it is a party to the Treaty of Rome, may have jurisdiction and authority to prosecute and punish these crimes.
Nor could they resort to general or special privileges or amnesty, as such institutions are unenforceable for these cases of responsibility for heinous crimes.
Our work, of the Academy, must not be that of doomsayers of a supposed de facto status quo, devoid of ethics, of justice, lasting only through the bestiality of violence. We must devalue it and change it as part of our duty to (more and more) guarantee the observance and respect of human rights.
This article was published in ‘Het Gesprek’.
Source: La Verdad
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