There are many voices that hold that leading to Vladimir Putin and his associates before an International Criminal Court is a pipe dream. They argue that the realpolitik and the fact that Russia is a nuclear power makes it immune from sanctions imposed by any criminal court in the world.
If the two fathers of international criminal law, Raphael Lemkin Y Murray BernaysIf they had lowered their arms before the almost unanimous criticism that their theses received in their day, today we would be far from having the international criminal system that we have.
We must insist, therefore, that Putin can be held criminally responsible and these are five keys to understanding why:
1. A crime against peace
The horrors that we have seen in recent weeks perpetrated by the Russian armed forces in Ukraine, such as the massacres of civilians in Buchathe siege of the city of kyiv, the bombing of Mariupol, among many other atrocities, could undoubtedly constitute war crimes.
But beyond their status as acts contrary to the Geneva ConventionsIt is something more serious. They constitute criminal acts of war that are included in the most serious of the typical figures of international criminal law: the crime of aggression or aggressive war or, as was originally formulated in Nurembergthe crime against peace.
We are not facing a war, we are facing a heinous crime under international criminal law -the worst of them all-. Then the actions deployed by the army of the Russian Federation in the territory of Ukraine and against its citizens do not derive from a war (not even in appearance). They lack, from the first moment, any hint of legitimacy or justification, neither legal nor much less ethical.
2. An action that threatens the international security framework of Humanity
The crime of aggression or crime against peace, in its original formulation in the Article 6 of the Statute of the Nuremberg Tribunalhinges on two ends, designed by Murray Bernays:
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The conspiracy: co-author sui generis which is configured on a criminal agreement consisting of launching an illegal war against another State.
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The membership: the individual responsibility for executing a role within an organization or institution oriented to the execution of the criminal plan.
Thus, to be authors of the crime, article 8 bis of the Statute of the International Criminal Court it requires that they enter into the pact or criminal agreement, so only those individuals who have sufficient capacity (factual and legal) to prepare, initiate or carry out acts of aggression may be.
This is the reason why, more than in individual criminal acts, its criminal interest lies both in its potential to destabilize said international legal order, and in destabilizing the international security framework of humanity (displacing the imputation of a real contest of homicides, murders, injuries, sexual crimes, etc.).
3. The responsibility of the entire Russian Federation and its allies
Not only Vladimir Putin, but all leaders of the Russian Federation and its ally Belarus, to the extent that they control or partially direct the political or military action of the state, who have not resigned or have opposed intervening in the armed conflict, have intervened in the execution of that pact or criminal agreement.
This pact does not require an express agreement, but is verified through the readjustment of the political and military institutions of the state, directing them to the preparation, initiation or carrying out of acts of aggression.
There is a real reconfiguration of the structured field of sociopolitical interaction aimed at the consummation of the international crime that is aggressive war (for example, soldiers, public officials, journalists from public agencies, etc.) in pursuit of the iniquitous purpose (although always disguised as a pseudo-legitimizing discourse, such as the supposed fight against nazi elements).
4. Against the Russian veto
This is not hindered by the fact that Russia is not a member of the International Criminal Court nor has it adhered to its statute. The Security Council of the United Nations can resolve the creation of a Tribunal ad hoc for these purposes, or it could refer the case to the International Criminal Court.
It will be said that such an approach is at least chimerical, given the possibility that Russia will interpose its veto. However, there is significant doctrine that questions the legitimacy of vetoing a resolution on heinous crimes by any of the permanent members of the Security Council. His main argument against the use of the veto in these cases is that it carries a cost in human lives.
We must also consider the pronouncement of the International Court of Justice, of which a certain doctrine It follows that the veto power conferred by the UN Charter must be used in a way that is compatible with the norms of binding common law (such as the Geneva Conventions, the Nuremberg Principles, etc.), and in no way undermines the duties of every member of the Security Council to give an adequate response to any serious violation of said rules and of international security.
5. The denunciation of the States
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 competence to prosecute and punish these crimes.
Neither could they take refuge in general or special privileges or amnesties, since for these cases of responsibilities for heinous crimes, such institutes are unenforceable.
Our work, from the Academy, must not be that of doomsayers of a supposed status quo factual devoid of ethics, of justice, only sustainable through the bestiality of force. We must devalue it and amend it in pursuit of a it must be that is (increasingly) a guarantor of the observance and respect of human rights.
Mario Martin Pereira GarmendiaProfessor of Criminal Law and International Security, university of Navarra
This article was originally published on The Conversation. read the original.