by Miceál O’Hurley
THE HAGUE — When FBI Agent George Spiro interrogated Saddam Hussein following his capture in Ad-Dwar, Iraq three things became abundantly clear—the United States intelligence conclusion that Al-Qaeda collaborated with Iraq to conduct the 9/11 attacks was at best extremely dubious; Iraq did not possess weapons of mass destruction; and, Saddam Hussein’s bogus claims about possessing weapons of mass destruction was not a threat to the United States but was merely a ruse to keep Iran at bay.
Unquestionably, Saddam Hussein was responsible for making the chicken-hawks in the George W. Bush administration believe both he and Iraq posed a real and imminent risk to the security of the United States and its then regional allies. The blunder of conflating Al Qaeda and Iraq as a joint menace to the United States is entirely the failure of the American intelligence apparatus for whom ‘group think’ grotesquely eclipsed intelligence gathering, evidence and proper intelligence analysis. In retrospect the casus belli upon which the United States marched to war against Iraq in 2003 simply did not exist. Had the Bush Administration not shouted down wiser and more reasoned critics that debacle could have been avoided. It endures as one of the most consequential blunders of United States foreign policy in its history, the consequences of which resound yet today.
In his illegal conquest of Donbas and Crimea in 2014 prior to ordering the Russian Federation to attempt to topple the Government in Kyiv in 2022 in a full-scale invasion of Ukraine Vladimir Putin failed to properly weigh the consequences of his actions. There is compelling evidence that as he moved to consolidate more powers in the Presidency of the Russian Federation, including changing the Constitution to allow him to essentially serve as dictator for life, Putin concomitantly moved to ensure he had no domestic challengers. Life most so-called leaders before him who relied on force and fear to attain and preserve power Putin became more isolated. It should have been apparent to Putin that he was creating an ‘echo chamber’ of ‘yes men’ who were incapable of speaking truth to power. In essence, the same ‘group think’ that led to the Bush Administration into believing their own hype about Iraq permeated the Kremlin leaving Putin without critical analysis. The virtual isolation of Covid-19 only served to further isolate Putin from reality. Consequently, Putin miscalculated on Europe’s solidarity, their willingness to arm and sustain Ukraine’s defense and security and that such unity would invoke sanctions that have now crippled the Russian economy.
The isolation of his self-constructed echo chamber also seemed to have allowed Putin to allow another lesson of the Second Iraq War to illuded him. The world was no longer willing to leave a despot in situ as they did with Hussein in the First Iraq War. Hussein’s capture showing him disheveled and cowering in a ‘spider hole’, preserved for posterity on video, followed by his humiliating trial then brutal death dangling on the end of a rope should have entered into Putin’s calculations. After all, history gives proof that dictators and strongmen don’t always die the most pleasant or peaceful deaths—this was true of Caesar, Xerxes, Cromwell, Robespierre, Enver Pasha, Mussolini, Hitler, Tojo, Antonescu, Bordaberry, Park Chung-He, Nguema, Trujillo, Ceausescu, Doe, Gaddafi and Hussein and a litany of others.
True enough—the long-arm of justice is not always fool-proof as evidenced by the number of despots who elude judicial examination. Kim Jong-Un, Emomali Rahmon, Islam Karimov, Serdar Berdimuhamedow, Pierre Nkurunziza, Bashar Al-Assad, Paul Kagame and Teodoro Obiang Nguema Mbasogo are just some of the current Heads-of-State known to be human rights abusers on a grand scale that have yet to be brought to justice. What Putin did not bargain for in his failed 3-day master plan to overwhelm Ukraine and attempt to annex it piecemeal thereafter was becoming a common criminal accused of international child-trafficking by the Prosecutor of the ICC. His indelible public boasts of his evil deeds, by Presidential Decree of 30 May 2022 then publicly claiming the kidnappings to be a “humanitarian necessity” will be his own undoing. Now, Putin is on a glide-path to join Argentina’s Jorge Vidella as a the only other Head-of-State to be convicted of child-stealing.
To their credit, the International Criminal Court (ICC) has moved with unique swiftness to issue arrest warrants for Putin and his Children’s Rights Commissioner, Maria Alekseyevna Lvova-Belova. Both stand accused by the ICC Prosecutor of violating international law by removing Ukrainian children from parents and guardians during a time of war then transporting them from their nation of origin by trafficking them to Russia where they were placed for adoption and/or made wards of the Russian Federation.
Lvova-Belova’s claim to the Association Press (AP) that she was only, “helping children to preserve their right to live under a peaceful sky and be happy” shows the ludicrous mental machinations that underpinned this heinous programme of child-kidnapping. The UN ‘Prevention of Genocide Convention’ prohibits, “forcibly transferring children of the group to another group”. The UN ‘Convention on Children’s Rights” outright bans the, “illicit transfer and non-return of children abroad”.
Despite Putin claiming his goal was to “de-Nazify” Ukraine he and the Russian Federation’s action yet again echo the fascist regime of Hitler and Nazi Germany who kidnapped children and transported them to the Reich for “Germanisation”. There is little difference in practice between Putin’s Presidential Decree of 30 May 2022 which liberalised the adoption of Ukrainian children by the State and the 25 November 1939 order of Heinrich Himler acting on Hitler’s instruction of 7 November 1939 which achieved the same goals as that of Putin, Lvova-Belova and the Russian Federation:
…we should exclude from deportations racially valuable children and raise them in old Reich in proper educational facilities or in German family care. The children must not be older than eight or ten years, because only till this age we can truly change their national identification, that is "final Germanisation". A condition for this is complete separation from any Polish relatives. Children will be given German names, their ancestry will be led by special office.
The ICC’s announcement of the issuance of the arrest warrants is surprising only for the relative rapidity with which they have heretofore not been known to act. The scope of the crimes combined with the overwhelming and compelling evidence has made their job easier. Putin’s 30 May Decree which made this programme of child kidnapping possible and public statements, along with those of his co-accused Lvova-Belova, self-incriminating and irrefutable. They have confessed to these crimes sua sponte and now the consequences of their criminality is clear.
What is far less clear is whether Putin and his minion will ever see the inside of an ICC courtroom. Russia does not recognise the authority of the ICC. According to his long-serving spokesperson, Dmitry Peskov, “We do not recognise this court; we do not recognise its jurisdiction”. And yet, the ICC has made clear that neither borders or position are barriers to the universality of their jurisdiction. Unquestionably, Putin will discover that a refusal to recognise the authority of the ICC will do him as much good as it did the Nazi defendants that refused to submit to the authority of the International Military Tribunal that sat in judgment at Nuremburg.
Beyond the law the politics are equally difficult. On 17 July 1998, the United States joined an ignominious list of countries including Iraq, Israel, Libya, Qatar, and Yemen that refused to vote in favour of the Rome Statute’s establishment of the ICC. Russia and 20 other countries abstained from the vote. Russia eventually signed the Rome Statute in In 2000 but failed to ratify the Statute. In 2016, Russia formally withdrew its signature from the ICC. Whatever Russia’s position, there will undoubtedly be widespread accusations of hypocrisy if, and when, the Biden Administration or United States Members of Congress laud the issuance of the ICC arrest warrants.
The ICC announced the following on Friday regarding the arrest warrants issued for Putin and Lyova-Belova:
Mr Vladimir Vladimirovich Putin, born on 7 October 1952, President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).
Ms Maria Alekseyevna Lvova-Belova, born on 25 October 1984, Commissioner for Children’s Rights in the Office of the President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Ms Lvova-Belova bears individual criminal responsibility for the aforementioned crimes, for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute).
These are only the first of what are expected to be a plethora of ICC prosecutions arising from Russia’s illegal invasion of Ukraine in 2014 and the full-scale invasion of Ukraine in 2022.
As there is a presumption of innocence in all criminal trials the burden falls to the prosecution to prove its case. Given the wealth of self-incriminating evidence compiled by the Prosecutor it should never be assumed that a conviction is assured. The number of acquittals from the ICC is not insignificant. According to Richard Goldstone, a Justice of the Constitutional Court of South Africa and former Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia, “… [concerning] the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY). During its active life from 1995 to 2017, it indicted 161 individuals of whom 99 were sentenced, 19 acquitted and 13 referred to domestic courts. The United Nations International Criminal Tribunal for Rwanda, during its period of activity indicted 96 individuals of whom 62 were sentenced, 14 acquitted and 10 referred to domestic courts”. Amongst the most notable acquittals at the ICC was that of the notorious former Vice-President of the Central African Republic, Jean-Pierre Bemba in 2018 which overturned on appeal his unanimous conviction from the trial chamber. While the arrest warrants do pose significant dangers for Putin and Lyova-Belova their conviction, if they are ever physically brought before the ICC—which does not hold trials in abstentia—is far from guaranteed.
The immediate effect of the ICC arrest warrants is that it significantly curtails Putin’s freedom of movement. If Putin were to cross into the territory of any of the 123 countries that have ratified or acceded to the authority of the ICC he is subject to arrest and extradition to The Hague. Those countries are geographically diverse including 33-African, 19-Asian-Pacific, 28-Latin American and Caribbean, 18-Eastern European as well as 25-Western European and other States. Even crossing international air space presents a clear and present danger to Putin’s freedom of movement.
Anxious to show his self-determination and attempting to highlight the lack of reach of the ICC, Putin visited occupied Mariupol in a carefully orchestrated publicity stunt on Saturday subsequent to the ICC warrants being issued. The brief visit hardly constituted any real exercise of freedom as Russian Federation forces currently occupy Crimea which is accessed contiguously from Russian Federation territory by an artificial land-bridge. In all, it was a feeble publicity stunt that only served to reiterate his now virtual confinement to Russia. Future travel to China, who also refuses to recognise the ICC, remains a possibility. But, like Hitler, as his war began to prove an increasing failure his self-imposed confinement became the norm until eventually he faced being captured by Allied Forces or committing suicide.
Given Russia’s failure to topple the Government in Kyiv, their setbacks of the battlefield and the grotesquely high personnel and equipment depletion in their quest to take Ukraine, Putin will eventually be constrained to remaining in Russia, diminished in both power and prestige, having no real future on the world stage. Putin seems to have proven United States President Barrack Obama correct—Russia is a mere regional power, or to paraphrase Senator John McCain—Russia is a mere gas station with nukes.
The effective ramifications of the ICC arrest warrants are real, immediate and far-reaching. Russia’s ability to cultivate relations with what it calls the ‘Global South’ is now deeply in periled. Having recognised the authority of the ICC the ‘Global South’ is now committed by treaty to upholding its arrest warrant and authority. This effectively tends to blunt Putin’s automatic reliance on these countries. Even if Putin does not set foot in the so-called ‘Global South’ there will be hesitation to overtly undermine the ICC by showing solidarity with a wanted criminal for fear it may invoke domestic backlash. As of from Friday, doing business with the synonymous Putin-Russia means doing business with a fugitive from justice and risking sanction regimes and international ignominy.
This is, however, of benefit to China as it serves China’s global interest and further subordinates Russia to China’s influence, economic lifeline and opportunity’s for military support. Russia, more than ever, will need to rely on China and has thus become more of a vassal state than ever. As this is the first time a Head of State of a Permanent Member of the United Nations Security Council is wanted by the ICC for criminal prosecution Russia’s effectiveness in the UNSC will also further decline—all to China’s benefit.
With unbridled bravado that smacks more of fear than defiance, Putin’s colleagues have resorted to physical threats of warfare against the ICC. Evidence of this can be found in the Telegram channel statement of Russia’s Deputy Chairman of the Security Council, Dmitry Medvedev who warned attempts to try Putin in the ICC would have, “monstrous consequences” for international law. Medvedev then went further, clearly threatening the ICC with a Russian hypersonic missile strike:
“Alas, gentlemen, everyone walks under God and rockets. It is quite possible to imagine the targeted use of a hypersonic 'Onyx' from the North Sea from a Russian ship at the Hague courthouse,". “And the court is just a miserable international organization, not the population of a NATO country. That's why they won't start a war. They will be afraid. And no one will feel sorry for them. So, judges of the court, look carefully into the sky…".
In all, Putin now finds himself where so many dictators and strongmen have—with nowhere to turn and therefore little to lose. His flouting of the ICC and the Russian Federation threatening the ICC with a hypersonic missile attack demonstrates clearly that Russia no longer values or fears international norms, laws or institutions. It is difficult to believe that such a Head of State and his country could be considered reliable partners in a durable diplomatic solution. Putin and Russia’s hubris greatly diminishes any real chances for a diplomatic solution as long as he retains such enormous and autonomous authority over the government of the Russian Federation. Like so many despots before him their identity and that of the State are so conflated as to be, in their mind, indivisible. For Putin, Russia would cease to exist if he were not firmly in charge.
If Putin were to step-down or be deposed his freedom and life would become subject to the will of those he no longer controlled. Making such a decision to relinquish his essentially unbridled power is therefore highly unlikely, hence, he now must guard against being dethroned from the inside or end up on the Senate floor like Caesar. To retain power he must now redouble his adherence to Machiavelli’s axiom of The Prince, “it is much safer to be feared than loved because …love is preserved by the link of obligation which, owing to the baseness of men, is broken at every opportunity for their advantage; but fear preserves you by a dread of punishment which never fails.”
With access to supersonic and nuclear weapons and the ability to strangle Ukraine’s access to exporting grain on the Black Sea Putin has the power to strike fear far-and-wide on the global stage. His options are now limited to “winning” in Ukraine in some face-saving measure or parlay fear of an expanding conflict into assurances that might extend his domestic power and national security. In all, facing prosecution by the ICC has brought into sharp focus that he has little to lose in exercising the full arsenal at his disposal. This changes the metrics by which strategic decisions will be concerning Ukraine’s defense and security.
The only question remains, will Putin place his interests above that of the Russian Federation and force the conflict in Ukraine to be a determining factor in the survival of the Russian Federation or will he defy logic and ‘go gently into that good night’. The nature and history of dictators like Putin agitate towards Putin’s belief that his personal interests are synonymous with those of the Russian Federation. Dictators, history tells us, conflate their person with that of the State and this creates a new dynamic in Russia’s war on Ukraine militating towards a more global conflict. Either way, time is running out for Putin and it remains a real possibility that he will either be deposed or be tried and die in prison.
Absent a successful Russian “20 July Plot” the West must now commit, without reservation, to providing any and all assistance needed to see Ukraine’s borders restored lest tyrants across the globe be conditioned to believe cross-border aggression will be tolerated and rewarded and the ICC will be reduced to the feebleness of a Weimar Republic. A fight to the bitter end is likely and the West must resolve to win outright or jeopardise international order and institutions irrevocably.
