War crimes committed by Russia during the war in Ukraine have direct connection to President Putin and Russia’s top political leaders. President Joe Biden called Russian counterpart Vladimir Putin a “war criminal” on Wednesday over his bloody invasion of neighboring Ukraine.
Lars Klingbeil, co-chair of German ruling Social Democratic Party, and British Health Minister Sajid Javid also said publicly that Russian President Vladimir Putin is a war criminal.
Former British Prime Ministers Gordon Brown and Sir John Major, and some British politicians, lawyers, scientists and public figures, are pushing for a new international tribunal (like the Nuremberg Tribunal) to investigate Russian President Vladimir Putin and those around him over invasion to Ukraine.
The immunity of senior officials, like head of state, head of government, minister of foreign affairs, is a legal obstacle to prosecute them over the crimes against humanity, genocide, war crimes or crimes of aggression.
National and international law grants immunity to the top state leaders. Their position in their home countries makes them beyond reach of national justice. But international criminal courts and national courts, with extraterritorial jurisdiction, can prosecute foreigners.
International law grants immunity from criminal jurisdiction in a foreign state to heads of state, heads of government, and ministers of foreign affairs.
Personal immunity, however, protects heads of state and other top officials from criminal prosecution after leaving the office over the acts they committed while in office.
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Article 7 of the Charter of the International Military Tribunal – Annex to the Agreement for Prosecution and Punishment of the Major War Criminals of European Axis stated that the official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.
The judgment of the Nuremberg Tribunal emphasized that the principle of international law, protecting the representative of the state under certain circumstances, can not be applied to acts which are condemned as criminal by international law. Those who committed the acts can not hide behind their official position to avoid punishment in due course.
As part of the Nuremberg trials, Admiral Karl Doenitz, who headed the state after A. Hitler’s death, faced trial, and during the Tokyo trials, four former prime ministers and eleven former ministers of Japan were brought to justice.
After Nuremberg and Tokyo, the rule of absolute immunity for representatives of states was not waived until 1993, with international ad hoc tribunals for the former Yugoslavia and Rwanda. The charters of those tribunals stipulated the official position of any person, including any head of state does not exempt them from criminal responsibility nor does it mitigate punishment.
In 2000, the International Tribunal for the former Yugoslavia signed an indictment against Slobodan Milosevic, who held office as president. That was the first time when a head of state was prosecuted in defiance of immunities by international law.
Milosevic, however, was arrested and brought to court after he left the office. The trial of Milosevic, therefore, is a precedent to recognize that prosecution of crimes under international law dominates over international immunity for former heads of state.
Article 27 of the Rome Statute states that an official position does not exempt a person from criminal responsibility.
International criminal courts, therefore, when prosecuting the state leaders, can hold them personally responsible for international crimes, with their immunity not making any obstacles.
International crimes involve top officials who develop plans and issue illegal orders. They should bear more responsibility than the subordinates who directly committed the act.
Russian officials often abuse immunity. Russian Foreign Minister S. Lavrov, e.g., during state visits, functions not as an instrument for external relation, but for Russian propaganda. Lavrov imitates negotiations to solve military problems – to regroup troops and deal with logistics, Russian hybrid war doctrine says.
President Putin and some Russian leaders, therefore, can and should be brought to justice. But international law has been and remains conservative, with bulk of it needed to be “adapted” to the emerging realities as soon as possible.
First of all, the concept of legal immunity requires clarification, as it is the basic one to practically hold Putin and some Russian leaders accountable for military and other criminal offenses.
The institution of immunity was introduced assuming they use their powers in good faith and responsibility, according to international law. but current developments show that immunity from prosecution is being used as a right to impunity and an incentive to commit serious crimes.Unpunished crime leads to another one.
