Vladimir Putin should voluntarily go to an impartial International Criminal Court trial, because he could win

Russian President Vladimir Putin has been threatened of being sent to the Hague International Criminal Court:

The main charge against him is the allegedly illegal aggression against Ukraine, on February 24, 2022:

Vladimir Putin publicly denies this charge. He says that Russia is legally helping the independent states of Donetsk and Lugansk People’s Republics to defend their sovereignty, against aggression from Ukraine:

If President Putin really means what he says, then his next logical step should be to voluntarily plead his case in front of an impartial international criminal court. Not in the Hague, but in a new tribunal, elsewhere in the world, under an improved version of the Rome Statute. This ICC 2.0 was discussed in my previous post.

Putin’s decision to go to this new court will strengthen Russia’s stance, promote international law, especially the principle of territorial integrity, and develop a multipolar world order.

In this article, in order to prepare for his fair trial, I will elaborate Putin’s legal defense argument. It has been criticized by prominent Anglo-Saxon legal experts, such as John B. Bellinger III, from the Council on Foreign Relations in Washington DC, Elizabeth Wilmshurst, from Chatham House in London, and Gabriella Blum and Naz Modirzadeh, from Harvard Law School.

In his declaration of “special military operation”, Putin invoked article 51 of the UN Charter, chapter VII, which says:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, (…)”

In their rebuttals, Bellinger and Wilmshurst recalled that article 51 of the UN Charter only grants self-defense rights to United Nations members. DNR/LNR are not UN members, so they can’t trigger article 51.

In response, on April 26, Vladimir Putin clarified his legal argument, by invoking the Kosovo case:

(Note: in YouTube videos, you can add captions in English, following the tutorial here)

Like DNR and LNR, Kosovo isn’t a UN member. However, Kosovo is hosting a large NATO and US military base at Camp Bondsteel, under a 99-years lease:

Moreover, Kosovo is candidate to NATO, a collective self-defense organization. In this process, the issue of non-UN membership is never raised.

Taiwan is another interesting case. Taiwan is not a UN member, but still benefits from an official military commitment by the United States, known as the Taiwan Relations Act, since 1979. At the same time, Taiwan is not recognized as a sovereign state by the United States. However, in practice, the US President Joe Biden is still threatening the People’s Republic of China of triggering this military legal document, in case of a Chinese “non-war military operation” in Taiwan:

Bellinger and Wilmshurst would build better credibility as trusted experts, if they also discussed the legality of Joe Biden’s explicit threats against China’s territorial integrity, in their attempts to debunk Vladimir Putin’s legal claims. There’s some degree of symmetry between the two.

From the viewpoint of international law, the Kosovo case is even more fascinating than Taiwan, because Kosovo was addressed by the International Court of Justice (not to be confused with the International Criminal Court), in 2010. Serbia was allowed to ask the ICJ:

“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

The Court answered that “the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law”.

The Court stated that “the scope of the principle of territorial integrity is confined to the sphere of relations between States”. Since Kosovo was not a state at the time of unilateral declaration of independence, then this declaration could not violate international law, although it violated Serbian domestic law.

Likewise, the unilateral declarations of sovereignty of Donetsk and Lugansk People’s Republics, of 7 April 2014, don’t violate international law, although they violate Ukrainian domestic law.

That’s an observation that neither Bellinger nor Wilmshurst did.

Of course, unilateral declarations of independence can sometimes violate international law. For example, the Turkish Republic of Northern Cyprus declaration of independence is made internationally illegal by the UN Security Council resolution 541.

In the cases of DNR/LNR, there’s no such issue. However, Putin would be wrong to automatically conclude that Russia can provide military assistance to DNR/LNR without violating international law. That’s a separate legal question:

Are the Treaties of Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Donetsk/Lugansk People’s Republics in accordance with international law?

The Kosovo ICJ opinion explicitly refrained from addressing the “validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State”, because it “is not required by the question”. So the Kosovo ICJ opinion gives no guidance on the validity of the Russia-DNR/LNR treaties.

With the Kosovo case, the ICJ left open a dangerous legal vacuum, which got filled by the individual legal judgement of each sovereign state.

At that time, Putin himself warned: “They have not thought through the results of what they are doing. At the end of the day it is a two-ended stick and the second end will come back and hit them in the face”.

For example, the United States recognized Kosovo, because it “considers Kosovo to be a special case that should not be seen as a precedent for other situations. The sequence and nature of events that led to Kosovo’s independence were themselves unprecedented.”

Other countries, like Ukraine, refused to recognize Kosovo, because they were “committed to the principle of absolute respect for the sovereignty and territorial integrity of all states” (however, if both Kosovo and Ukraine join NATO, then Ukraine will need to renounce to this principle).

In order to address Putin’s case, the ICC 2.0 needs to dig deep into Russia’s justifications for recognitions of the DNR/LNR. That’s something the ICJ carefully avoided in the Kosovo case, fearing a legal quagmire.

For example, Putin can argue that the DNR/LNR are also “special cases”. The level of resurgence of Nazism in Ukraine is unprecedented. The struggle against Nazism is the special founding moment of the United Nations:

The Soviet Union made a special sacrifice, with 68 times more victims than the United States (27 Million vs. 400,000 deaths), to achieve the United Nations victory. Without them, the United Nations organization would not even exist:

Russia, as the successor state of the Soviet Union, has a special responsibility to prevent the resurrection of Nazism, especially because Ukraine is destroying its own Red Army heritage.

This special situation is what could make the recognitions of DNR/LNR, and the military operation in Ukraine, so “special”.

Alternatively, Vladimir Putin can argue that the DNR/LNR are not special cases, after all. They can fit in the category defined by Kosovo.

The sequence and nature of events that led to Kosovo’s independence might have been unprecedented in 2008, when the US Department of State proposed this bold argument for recognition, but not in 2022, after so many terrible things happened in Ukraine.

For Putin, this alternative argumentation is interesting with respect to an ongoing ICJ case: in an attempt to debunk Putin’s legal justification, Ukraine filed a complaint against Russia in the ICJ, for false accusation of genocide.

However, even if events in Donbass are not a genocide according to article 2 of the 1948 Genocide Convention, they can still be a Kosovo-genocide. In this case, DNR/LNR would belong to the same category as Kosovo for statehood rights. That would be enough to legalize the Russian military operation in Ukraine, if the ICC 2.0 accepts the US case for Kosovo independence, like Bellinger and Wilmshurst did.

The ICJ still didn’t answer whether a genocide happened in Kosovo, in the sense of the Genocide Convention. Furthermore, the International Criminal Tribunal for the former Yugoslavia (ICTY) didn’t condemn anyone for genocide in Kosovo.

However, by definition, a Kosovo-genocide happened in Kosovo. So is Donbass the new Kosovo? Let’s compare:

Kosovo vs. Donbass

(Note: in YouTube videos, you can add captions in English, following the tutorial here)

Death Toll

• Kosovo

13,517 people killed or went missing from January 1998 to December 31, 2000

• Donbass

14,200–14,400 people killed from April 14, 2014 to December 31, 2021

Refugees

• Kosovo

1.5 Million people, 90% of the population

• Donbass

1.6 Million people registered as internally displaced in Ukraine + 1 Million abroad, mostly in Russia. 40% of the population

Agression against their own people

• Kosovo

Empty villages attacked:

• Donbass

On April 7, 2014, an “Anti-Terrorist Operation” against “Russia’s invasion” is launched by Alexey Turchynov, chief of the Security Service of Ukraine, and unelected president by interim:

Ukrainian tanks run across Donbass:

Ukrainian Air Forces strike Lugansk:

Massacre with significant impact

• Kosovo

45 deaths in Racak village, on January 15, 1999:

Moral outrage in the White House, paving the way for NATO military operation.

Two contradictory reports, one by a Yugoslav-Belarus forensic team and another by a EU-Finnish team.

No evidence about Racak massacre was ever presented at the ICTY, in order to “improve the expeditiousness of the proceedings while ensuring that they remain fair”.

A decade later, in her biography, Finnish forensic Helena Ranta confessed that Finnish Foreign Ministry official Pertti Torstila, and OSCE William Walker, tried to influence her report.

• Donbass

48 deaths in Odessa syndicate building, on May 2, 2014:

Moral outrage in Donetsk, encouraging self-determination:

Tribunals in Ukraine still didn’t address this event.

Rejection of peace

• Kosovo

Following the Racak massacre, peace talks are held in Rambouillet, Paris region. Serbian President Slobodan Milosevic refuses to sign the Rambouillet peace agreement with Kosovo separatists, and as a consequence, NATO launches “Operation Allied Force”, an aerial bombing campaign on the whole territory of Serbia.

• Donbass

On October 1, 2019, Ukrainian President Vladimir Zelensky officially agrees on the “Steinmeier formula” for implementing the 2015 Minsk peace agreement.

Zelensky’s oppositions, including former President Petro Poroshenko and Azov battalion, refuse “Steinmeier formula”, calling it a “capitulation”. They start protests in front of Zelensky’s office, and more:

Zelensky capitulates to their demands, despite having won elections in April 2019 with 73% of votes, on the promise of negotiating the end of the war in Donbass:

On 28 October 2020, ATO veteran Alexey Arestovych becomes official speaker of the Ukrainian delegation to the TCG at Minsk talks, and later he becomes advisor to the Head of the Office of the President of Ukraine.

On 11 August 2021, Arestovych explains that “there’s nothing wrong with Steinmeier formula, but there is a fourth point that has not been implemented by Russia since September 2014: a ceasefire, a withdrawal of troops, the withdrawal of all foreign troops and the disarmament of illegal armed groups. It will not be fulfilled, no need to worry”, echoing the US official position by Kurt Volker.

In March 2019, Arestovych described ATO (the “Anti-Terrorist Operation” in Donbass) as a Cossack-themed “holiday resort”:

In a self-fulfilling prophecy, Arestovych predicted an armed conflict with Russia “with a probability of 99.9%”:

and this conflict won’t stop until 2035:

In the meantime, Donbass children living on the front line “just want this war to end”:

as Ukraine was steadily growing military spending and NATO interoperability:

Ukraine’s commitment to the Minsk peace agreement is blatantly missing from the above list of “Ukraine’s contributions to Transatlantic security” compiled by the “New Europe Center”; although this agreement was brokered by NATO members and EU co-founders Germany and France.

After the launch of the Russian “special military operation”, some Zelensky voters in Mariupol voiced their disappointment about his failed promises:

Nationalistic leaders

• Kosovo

Serbian President Slobodan Milosevic in Gazimestan speech in 1989: “Six centuries later [after the battle of Kosovo], now, we are being again engaged in battles and are facing battles. They are not armed battles, although such things cannot be excluded yet.”

• Donbass

Ukrainian President Petro Poroshenko in 2014: “their children will hole up in the basements”

Azov’s first combatant Andrey Biletsky, on 5 February 2022: “we have fun killing”

Foreign intervention

• Kosovo

On 24 March 1999, US President Bill Clinton launches an openly illegal NATO military operation:

In his declaration, Bill Clinton completely ignores international law.

• Donbass

According to Vladimir Putin, there are Russian volunteers with military experience, but the regular Russian army isn’t involved as such:

Genocide legacy

• Kosovo

4 years before the 1999 NATO military operation in Kosovo, a genocide happened in Bosnia and Herzegovina, according to the ICTY and the ICJ, and in particular, the Srebrenica massacre of 1995:

• Donbass

63 years before the 2014 Donbass war, the Holocaust genocide happened in Ukraine.

For example, the Lviv Pogrom of 1941:

Jews weren’t massacred simply because they were Jews, but because “the Jews in the USSR constitute the most faithful support of the ruling Bolshevik regime, and the vanguard of Muscovite imperialism in Ukraine”, according to the Organization of Ukrainian Nationalists.

With the Euromaidan, OUN supporters gained more visibility:

In 2015, Ukraine adopted the law “On the Legal Status and Honoring the Memory of Fighters for Ukraine’s Independence in the Twentieth Century”, making illegal to “publicly show contempt” for the OUN.

In accordance with this law, I am not taking any stance on the controversial debate whether the OUN participated in the Lviv Pogrom.

Even Vladimir Zelensky, despite his Jewish roots, can’t distance himself from this new legally sanctioned narrative:

By anticipating an extension of this law to 21st century fighters, I will simply present this video explaining the absence of connection between Azov battalion logo and the Nazi SS Wolfsangel:

Intent to transform the ethnic identity of a territory

According to article 2 of the Genocide Convention, a genocide is:

an intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Overall, an intent to physically destroy would not be the best designation for either Serbian or Ukrainian nationalist projects, in Kosovo and Donbass, but there is still some kind of proximity:

• Kosovo: ethnic cleansing

According to German Defense Minister Rudolf Scharping, Serbia had an ethnic cleansing plan called “Potkova [horseshoe] Plan” :

“The clear objective of the Horseshoe plan is to clean ethnically the whole of Kosovo and to deport the whole civilian population. Operation Horseshoe was planned in Belgrade by the military staffs, by Milosevic and his regime (…) It started during Rambouillet and during the negotiations in France, and it was intensified after the negotiations”

This ethnic cleansing plan was never published anywhere, and at his ICTY trial, Milosevic denied it.

However, ICTY judge Iain Bonomy still concluded: “It was the deliberate actions of these forces during this campaign that caused the departure of at least 700,000 Kosovo Albanians from Kosovo in the short period of time between the end of March and beginning of June 1999”

• Donbass: derussification

Derussification is not the simple promotion of Ukrainian language. It’s a state-sanctioned project of transformation of the Ukrainian identity, of what it means to be Ukrainian. It’s the cleansing of the Russian and Soviet elements in the Ukrainian identity.

A symbol of this project is the iconic encounter of a Ukrainian soldier with a grandma holding a Soviet flag:

Following the 2016 law of Ukraine “On condemnation of communist and National Socialist (Nazi) totalitarian regimes in Ukraine and ban on propaganda of their symbols”, more than 51,493 streets were renamed, as well as 3% of cities and villages.

For example, among them, the city of Stakhanov, in Lugansk region, named after Alexey Stakhanov, a Donbass coal miner with legendary productivity. A migrant worker from Russia, he inspired the Stakhanov labor movement across all the Soviet Union, and achieved world fame:

Heroes of socialist labor like Stakhanov have no place in the new “glory of Ukraine”, and are replaced by OUN heroes such as Stepan Bandera, Roman Shukhevych and Dmytro Klyachkivsky, who achieved legendary productivity in a completely different domain, during the Second World War:

Education is another field where the Ukrainian identity is being rewired. It’s not only about “children camps” by state-sponsored Azov battalion :

It’s also about mainstream education, in public schools. For example, the 8th grade geography book by Petro Maslyak, published in 2016:

The book teaches that “closeness of language does not always mean the closeness of the genetic origin of peoples or even their race.” For example, Ukrainians are “Slavicized Germans”, while Russians are “Finno-Ugric”. When the book made a scandal, Maslyak denounced “Muscovites and their fifth column in Ukraine.”

Names of cities, and school books, would be anecdotal, if they didn’t participate in a systemic pattern of othering of the Russian identity, with implications for the peace process.

Arestovych and his American mentor didn’t want to apply the peace agreement until “Russian forces” withdrew from Donbass. But why did they insist on withdrawal, instead of inclusion into the Ukrainian army?

Why could the Azov battalion be so easily integrated into the Armed Forces of Ukraine, but not the Somali battalion?

(by the way, since Azov’s logo isn’t a German Nazi symbol, then Somali’s logo isn’t a Russian Empire symbol, after all. It’s actually a symbol dating back to several ancient civilizations. For example, the double-headed eagle can be found on the sphinx gate at Alacahöyük, an archeological site in Anatolia:)

A distribution of Ukrainian passports to DNR/LNR fighters of any origin would have been the simplest solution.

Donetsk and Lugansk People’s Republics could even have been granted autonomy in immigration policy, like Quebec within Canada. As part of their “special status”, they could have had their own Ministries of Immigration, Russification and Integration, like Quebec has a Ministry of Immigration, Francisation and Integration.

All Somali battalion fighters would have received Ukrainian passports as gifts, in recognition of their fight for Ukrainian values of pluralism, multiculturalism, and federalism. After all, Zelensky’s election slogan was: “Ukraine — It’s you!”

If Zelensky’s slogan wasn’t a joke, then why didn’t he seriously proclaim: “Ukraine — It’s Givi and Motorola” ?

Kiev central authorities can give away Ukrainian passports very liberally, when it fits their political agenda. For example, Petro Poroshenko offered a Ukrainian passport to his former classmate Mikhail Saakashvili. So why Donetsk and Lugansk authorities could not offer Ukrainian passports to their Russian friends?

This inclusive solution was inconceivable for Alexey Arestovych and Kurt Volker, because their ethno-political project was to purify the Ukrainian identity of its Russian component. Shipping passport printers to Donetsk and Lugansk was a capitulation from this perspective. This generosity would have strengthened the “Muscovite fifth column in Ukraine”.

Instead, the solution proposed by Arestovych was to wage war until 2035, and the solution proposed by Azov battalion was a US-sponsored counter-insurgency operation, modeled after the ‘surge’ military operation in Iraq. Vladimir Zelensky was naively thinking that his North American instructors were transforming Ukraine into a new Canada, but all they were preparing for Ukraine was a new Iraq.

Conclusion : absolute territorial integrity can be the solution

Challenged to draw a legally relevant distinction between Kosovo and Donbass, the Court judging Putin could avoid this controversy altogether, and instead affirm the “principle of absolute respect for the sovereignty and territorial integrity of all states”, like Ukraine did in 2010 about Kosovo. Rejecting all “special cases” might be the most reasonable option, all things considered. That will still be a personal victory for Putin, who is fighting for the principle of territorial integrity since the Chechnya war.

That will also have far-reaching consequences. Kosovo is currently recognized by 50% of UN members:

Heads of states of those 97 countries could join Putin in the tribunal, for illegal violation of the territorial integrity of Serbia.

Incidentally, the recognition of the Republic of Crimea by the Russian Federation, on 17 March 2014, will also be affected. At the end, this legal pathway can lead to a principled settlement of the situations in Ukraine, Kosovo, and Taiwan.

And what about Putin’s trial? Even in this case, he still has other defense arguments. However, since all Putin critics are supportive of Kosovo independence, I am keeping these arguments for later.