28 February 2023
by Aleksandr Podrabinek
Oleksandra Matviichuk, head of the Ukrainian human rights organisation Centre for Civil Liberties, who was awarded the Nobel Peace Prize last year, has called for an international tribunal for President Putin. In her opinion, this should be done as quickly as possible, inasmuch as this will have a “chilling effect” on the Russian leadership and might possibly stop further war crimes.
I feel I should make it clear: a trial cannot stop war crimes. Execution of the sentence against the defendants can. Or at least the real threat of its execution. Right now many people are in fact turning to the Hague tribunal, UN court, International Criminal Court, and other bodies of supranational justice. They believe that the very fact of creating a special court for Putin will in some magical way stop the avalanche of crimes being perpetrated by the Kremlin leadership. This is a slightly naive and, I would say, “Western” view of Russian reality.
Trials and Puppet Shows
The Kremlin leadership, along with its president, have gone too far to fear legal decisions not equipped with the commensurate execution of the sentence. The free world’s desire to see the triumph of justice, if only on paper, to hear if not the defendants’ final statement then at least the verdict of a fair trial, is understandable.
However, it must be clearly understood that a trial incapable of implementing its own decisions ceases to be a trial and turns into a puppet show. Of course, there have been instances when a sentence could not be carried out due to various new circumstances. But when a court begins a trial knowing in advance that it can’t touch the defendant, then that isn’t a trial, it’s a mockery of justice. International justice must not discredit itself like this.
Does this mean that international bodies of law and order should not take any steps against President Putin and the Russian leadership? Naturally not. You just have to know where to stop on that path so that the trial meets the high standards of justice and doesn’t turn into a kangaroo court with a predetermined result. In particular, trial in absentia cannot be permitted for a criminal case in court, as the practice is in countries with a low legal culture. As was widely practiced for decades in the Soviet Union and is now still practiced, if not as widely, in Russia.
Defendants Must Sit in the Courtroom
Yes, we are certain of the Russian leadership’s guilt in crimes against humanity, in unleashing an aggressive war, and in war crimes. But the court cannot base its decision on anyone’s certainty. It has to have evidence and hear both sides—the prosecution and the defense. The defendants have to be questioned and have the opportunity to respond to the charges, however terrible they may be.
Defendants have to sit on their bench in the courtroom and prosecutors on theirs. And if the latter presents no problems, there are an abundance of problems with the former. Though no shortage of defendants.
The temptation is very great to issue a verdict as quickly as possible, hot on the trail of the villainies committed and regardless of the defendants’ absence during the legal proceedings. We have to resist this temptation. Trial in absentia is a surrogate of justice, a semi-finished product of the legal system. Trial in absentia may be supported by those who will themselves be defendants in future cases, since any verdict in absentia is going to look less than convincing no matter what evidence the prosecution possesses. That kind of verdict will necessarily leave grounds for doubts, reproaches that justice was partial and not objective in considering the case.
Which plays into the criminals’ hands, of course. And finally, let us not forget the maxim of Roman law: Nullum crimen sine poena—there is no crime without punishment. If a crime has been committed and the criminal is alive, then he must be caught and punished. There’s no other way.
Translated by Marian Schwartz