Putin and his generals must be tried for war crimes, even in absentia

Russian president Vladimir Putin has responded to tactical reversals on the battlefield in Ukraine by appointing the “Butcher of Syria” to take charge of all of Russia’s invasion forces in Ukraine. This ominous development not only requires Western democracies to enhance their supply of defensive materiel to the beleaguered Ukrainian forces, but it also provides fresh incentive to begin formal preparations for war crimes trials directed at Putin and his top commanders.

Western leaders are not excused from responsibility to pursue this course, simply because such a tribunal may not be able to haul Putin and his generals into custody to stand trial. International law of armed conflict allows for trials in absentia when a war criminal evades capture or shelters behind his own frontiers. Ukraine provides a compelling case to invoke this principle. The Biden administration has been unfortunately ambivalent on this kind of initiative, in part because of the refusal of the United States to join the International Criminal Court, a reluctance previously endorsed by Congress. But times have changed, and this is the rare issue on which congressional leaders should be able to forge a bipartisan accord to pressure the administration to lead the Western democracies to act.

In recent weeks, the world has witnessed the deliberate massacres of bound civilians in Bucha, the targeting of a train station crammed with fleeing refugees in Kramatorsk, the missile strike on a theater clearly marked with the vain plea “Children” in Mariupol, and countless other atrocities that cry out for justice. The situation promises to get worse with the appointment of Gen. Alexander Dvornikov, commander of Russia’s Southern Military District, to serve as theater commander of Russia’s overall military campaign in Ukraine.

Dvornikov earned the gruesome nom de guerre “Butcher of Syria” by authorizing indiscriminate bombardment of civilian areas, reducing Aleppo and other Syrian cities to rubble-filled graveyards for thousands of women and children. He is a brutal master of Russia’s historic “way of war,” a strategy of “besieging cities and exploiting the destruction of their infrastructure to leave their inhabitants facing intolerable conditions.”

Ukrainian authorities have announced that they have recruited as many as 50,000 officials to begin documenting individual incidents of war crimes committed by individual Russian soldiers and local commanders. But more must be done to hold Putin and his senior commanders accountable for these violations of the well-settled international law of armed combat, the principle of “command responsibility.”

In 1946, the Supreme Court in the Yamashita case upheld the death sentence imposed on the Japanese general called the Tiger of Malaya for his failure “to control the troops under his command” to prevent violations of the law of war that “are likely to attend the occupation of hostile territory by an uncontrolled soldiery.” In Ukraine, we see such acts as the calculated Russian strategy.

Although President Biden has been dragging his feet on this important initiative, congressional leaders should press to have the United States immediately convene Western powers to establish a war crimes tribunal to address the culpability of senior Russian officials for the depredations taking place throughout Ukraine. If necessary, trials of senior Russian officials responsible for war crimes may be held without their physical presence.

There is abundant precedent for such action. Most significant is the ground-breaking Nuremburg war crimes tribunal created by the Big Four powers in the aftermath of World War II to prosecute German political and military leaders. The tribunal’s Charter defined as war crimes the very acts being perpetrated in Ukraine — a war of “aggression,” wanton targeting of civilians, and other “crimes against humanity.”

The Charter also declared that the tribunal had the “right to take proceedings” against a person charged with those crimes “in his absence,” if “he has not been found” or if the tribunal otherwise found it “necessary, in the interests of justice, to conduct the hearing in his absence.”

Most of the major German war criminals were captured by Allied forces at the end of the war. They were tried in person. One major figure, however, evaded capture: Martin Bormann, the notorious Deputy Fuehrer who was one of the chief architects of the Holocaust. Relying on the authority to try him in absentia, the Nuremburg prosecutors charged him with a list of war crimes and invited the tribunal to appoint defense counsel to act on his behalf. In case Bormann were still alive, public notices about the upcoming trial were placed in newspapers and on the radio in autumn 1945 to notify him of the proceedings. In October 1946 he was convicted and sentenced to death by hanging, provided that — if he was later found alive — any new facts brought to light could be taken into consideration to reduce the sentence or overturn it.

Since Nuremburg, the United Nations or regional groups of countries have created an array of specialized international tribunals to investigate and prosecute war crimes, including tribunals for the former Yugoslavia, Sierra Leone, Rwanda, East Timor, etc. Some have incorporated the Nuremburg principle authorizing trials in absentia. For example, in 2007, the UN Security Council, by agreement with the government of Lebanon, created the Special Tribunal for Lebanon to address war crimes committed during the lengthy fratricidal struggle there. Its charter authorized the special tribunal to try an accused in absentia, if among other reasons he has “not been handed over to the Tribunal by the State authorities concerned.”

This kind of provision would cover Putin and his commanders, in the likely event that they boycotted the proceedings.

The Lebanon tribunal’s charter contained a procedural protection designed to address any concern about trying a person in absentia. It required, like the Bormann precedent, whatever notice was possible and also allowed the convicted war criminal to appear later to submit himself to a new, conventional trial. This same process is used in other countries, such as Italy, that allow criminal trials to proceed in absentia. The European Court for Human Rights has held that such trials are consistent with human rights guarantees, if the accused is provided with as much notice as possible about the right to appear and defend himself, and if, after conviction in absentia, the defendant may appear to request a fresh trial by offering evidence in exoneration.

The Western liberal democracies must go beyond helping Ukraine defeat Russian forces on the battlefield and must proceed with war crimes trials.

International law has a normative value; a courtroom is the place to demonstrate that the international law of armed conflict forbids what the Russians are doing. In addition, a formal judicial decree branding Putin and his generals as war criminals would echo down the halls of history long after — it is hoped — the Russians are driven out of Ukraine. Congress and the administration now must join to show leadership in demonstrating that moral principles of international humanitarian law stand behind the military power of the liberal democratic world order.

Philip Allen Lacovara was Deputy Solicitor General of the United States, counsel to the Watergate Special Prosecutor, and president of the District of Columbia Bar.