Below is an interview conducted recently with Walter Clemens, a professor emeritus of political science at Boston University and an associate of the Davis Center for Russian and Eurasian Studies at Harvard University.
MOTYL: Walter, you’re well known for tackling complex moral and legal issues of international relations in your work. One of your books was Can Russia Change?
CLEMENS: I’m still doubtful.
MOTYL: Your current project is titled “Can—Should—Must We Negotiate with Evil? The World and North Korea.”
CLEMENS: The subtitle could also read “The World and Vladimir Putin.”
MOTYL: What should the international community do about Mr. Putin?
CLEMENS: He should be indicted and brought before the International Criminal Court. Putin is probably guilty of all types of transgressions the court is authorized to prosecute—genocide, crimes against humanity, war crimes, and aggression. As Russia’s president or prime minister, Putin dispatched Russian armed forces against the peoples of Chechnya, Georgia, and Ukraine while keeping them in a province of Moldova. His troops killed between 100,000 and 200,000 Chechens, split off South Ossetia and Abkhazia from Georgia, and watched as South Ossetians carried out ethnic cleansing of Georgian villages. Putin’s forces have seized Crimea, putting Tatars as well as Ukrainians at risk. Putin has fomented separatism in eastern Ukraine and sent several thousand Russians to fight alongside the separatists. He may not have intended for his proxies to shoot down a Malaysian airliner, but he provided the equipment and training that permitted them to do so and kill nearly 300 civilians. When weapons based in Russia strike targets inside Ukraine, however, there is no doubt about Putin’s intentions.
MOTYL: Do his actions actually meet the definitional requirements of the crimes you outline?
CLEMENS: The Rome Statute setting up the International Criminal Court in 2002 gave precise definitions of genocide, crimes against humanity, and war crimes—all of which fit Putin’s policies. But the member states’ lawyers did not define “aggression” until 2010. According to this definition , aggression includes “the invasion … by the armed forces of a state of the territory of another state”; “annexation by the use of force of the territory of another state”; “bombardment by the armed forces of a state against the territory of another state”; and “the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries … against another state.” Putin’s forces have clearly committed all these forms of “aggression,” but the ICC cannot exercise its jurisdiction over such crimes before 2017 and until the requisite number of member states have given their approval.
Meanwhile, it is clear that Putin’s Kremlin has violated the 1929 “Litvinov Protocol,” which put into force for Russia, Poland, Romania, Estonia, and Latvia the Pact of Paris outlawing war. That pact is still in force.
MOTYL: Very well, let’s agree that Putin’s armed forces are guilty on each of these counts as well as of committing crimes of genocide, crimes against humanity, and war crimes. Is the man Vladimir Putin guilty of these crimes as well? Couldn’t he argue that he knew nothing about them?
CLEMENS: Putin might counter that he bears no personal responsibility for what Russian forces have done. On the other hand, he has reigned as a virtual dictator over Russia since 1999 and cannot evade responsibility for the crimes his troops commit. Putin could deny that the ICC has jurisdiction, because Russia is one of 31 states that have signed but not ratified the Rome Statute. Pending ratification, however, Russia is obliged under international law not to violate its ICC obligations.
MOTYL: So who would bring charges against Putin?
CLEMENS: That’s where the complexities get deeper. The Rome Statute gives first jurisdiction to courts in the home country of the accused. Since Russian courts are puppets of the president, they cannot be expected to try and convict their boss. The United Nations Security Council could refer the Putin case to the ICC, but Russia would surely veto such a move.
Some 122 states have signed and ratified the Rome Statute. The statute provides that a party to the treaty “may refer to the prosecutor a situation in which one or more crimes within the jurisdiction of the court appear to have been committed” and request “the prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.” Three states party to the statute have cause to bring charges against Putin: Moldova, Georgia, and the Netherlands. Given that the Netherlands lost nearly 200 citizens on MH17, it probably has the strongest grounds for bringing charges against Putin. Georgia and Moldova, for their own reasons, have solid reasons to join the suit. Nongovernmental actors such as Human Rights Watch and Chechen organizations could also file charges. The Rome Statue permits the prosecutor to initiate investigations motu proprio, or on his/her own initiative, on the basis of information received from individuals or organizations.
Malaysia and Ukraine also have grounds to bring charges against Putin, because Flight MH17 belonged to Malaysia and was shot down in Ukrainian airspace. But their failure to ratify the statute disqualifies them from taking their complaints to the court. The United States has also disqualified itself by the George W. Bush administration’s decision to “un-sign” the Rome Statute negotiated and signed by the Clinton White House.
MOTYL: Do you seriously expect charges against Putin to be brought?
CLEMENS: Putin’s crimes rank with those committed by leaders in the former Yugoslavia who were charged and convicted of war crimes. But there are obstacles. Whereas complaints from ultranationalist Croats and Serbs about persecution of their heroes did not rattle the international community, many governments and businesses in Europe do not wish to offend the Kremlin. Even the United States prefers to retain Russian cooperation in many spheres, from outer space to North Korea.
Still, the climate is changing. Putin’s actions in late July–early August led the European Union and the United States to intensify their sanctions against Russia. To try and put the leader of a regional superpower in the dock would be a further step up the ladder. Significantly, Navi Pillay, the UN high commissioner for human rights, said the downing of the Malaysia Airlines jet may be a “war crime.” In July, the Court of Arbitration in The Hague ordered Russia to pay $50 billion in damages to shareholders in the defunct Russian oil company Yukos. That same month, Washington announced that Russia has been testing ground-based cruise missiles in violation of the 1987 Intermediate-range Nuclear Forces Treaty. These accusations come on top of other suspicions aroused by a string of unexplained murders of Russian journalists and others who challenged Putin over the years. And did not the recent cyber attacks against Ukrainian government offices in Kyiv and abroad originate in Putin’s Kremlin? A milieu of crime appears also to have spawned the theft by Russian gangsters of 1.2 billion usernames and passwords belonging to more than 500 million e-mail addresses around the globe.
The bottom line is obvious. If the world does not stand up to Putin today, as the Economist warned on July 26th, “worse will follow.”