Battleground: Ukraine

A history podcast that explores the narratives, turning points and characters that shape conflicts, encompassing a blend of social and military history. Following on from the series on the Falklands War, best-selling military historians Patrick Bishop, and Saul David turn their attention to the war in Ukraine.

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41. The Big Interview:  Janet Anderson & Stephanie van den Berg on Putin's Arrest Warrant

41. The Big Interview: Janet Anderson & Stephanie van den Berg on Putin's Arrest Warrant

Wed, 12 Apr 2023 01:00

This week's interview discusses the decision by ICC judges to issue arrest warrants against Vladimir Putin and Maria Lvova-Belova. Joining Saul and Patrick to delve into the topic are two Hague based journalists and hosts of international justice podcast Asymmetrical Haircuts - Janet Anderson and Stephanie van den Berg.

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That's slash switch Hello and welcome to the battleground Ukraine's big interview with me Saul David and Patrick Bishop Today we're talking to two criminal justice specialists and haig-based journalists Janet Anderson and Stephanie Van den Berg of Reuters and we're talking to them about the decision by the International Criminal Court to charge Vladimir Putin with war crimes Together they host an excellent weekly podcast on international justice called asymmetrical haircuts and wonder where they got that name from well, this is what they told us Well Janet and Steph welcome to the podcast thanks so much for coming on it's been a big week in terms of news from the international criminal court and before we get onto that news and the specific charges against Putin and Maria Lavova below that Can you explain when and why the ICC was set up and what are the precedents for in writing ahead of state um the ICC is a treaty-based court which means that states have to agree to join up to it and by doing that they say yes we'll do our own prosecutions in you know what the ICC does which is war crimes crimes against humanity genocide and a little bit of aggression but generally if they can't do it then the ICC takes over it's only been going for 20 years or so it celebrated its 20th anniversary last year so it's not a really long long established court like some of the others in the hage it's mainly focused on African situations because a lot of countries in Africa have said we what we aren't able to do our own prosecutions can you help us with that but it has started now we've got a new prosecutor who came in fairly recently it's started to expand the bit and you asked about precedents for heads of state there were three sitting heads of state who had the ICC issue in arrest warrant against them the way it works at the ICC is that you don't see an indictment so the charges are listed in the arrest warrants and then at a later stage you have when somebody is arrested and brought before the court you have a special hearing to confirm the charges against them with judges saying that this is what it is and then you have a kind of indictment so we do speak of the charges because they're listed in the arrest warrant but it's not actually an indictment that they issued against Putin that we can read from the other leaders that they had were Libyan leader Muhammad al-Qaddafi who died before this was ever executed and then we have the Sudanese leader Omar al-Bashir who's still at large she's currently in prison in Sudan but she's still at large as far as the court is concerned there's not really a very impressive record is it i mean i don't want to send to critical but you know given the resources and given the range of potential in dieties that doesn't seem to be a sort of huge success rate and i'm wondering fundamentally whether the absence of the big players know to be the US from the signatories is a big handicap there's a great phrase around the ICC which is this giant with no arms and no legs it doesn't have a police force doesn't have a defense force doesn't have any methodology of arresting anybody except fire states collaborating and yeah you've put your finger on one of the big problems which is not only the US but also Russia also China also India so you've got some really big states around the world that aren't members yeah now there has to be said also that there is a wide range of people who could have been indicted although we do see a lot of why it wasn't bush-indicted and those things it has to be said that the ICC is not a retroactive court it became a legal reality in 2001 i want to say 2002 July 2002 yeah July 2002 and so it cannot do any cases of before that so that is something to keep in mind when we're looking at what they could have indicted but indeed i think in 20 years they have only a handful of convictions on the core crimes which are you know war crimes crimes against humanity in genocide and and so far only war crimes and crimes against humanity no genocide rulings yet okay can we move on to the specific crime or crimes that Putin and live over at Belova are alleged to have committed and why you feel that the ICC or the or the prosecutor went with those charges well the prosecutor kareem Khan made very clear from the beginning of his his tenure as prosecutor that he would focus on crimes against women and children and this is very obviously the crime that Putin and the on the woman or the children's commission's woman is charged with is the deportation of children now it charges a war crime so it has to be said that in the Rome statute which is the rules that govern the the ICC deportation is of children is not listed separately as a war crime it is just deportation of population it is not allowed as a war crime but it is a very specific thing because if you look further deportation of children or forcible transfer of children is mentioned as a specific crime under the genocide convention and so the significance of of narrowing it down to children and in focusing on children is that they may want to at some point expand these charges and go for genocide of which this is a specific element the other thing to say on this I would suggest is that war crimes are you kind of common garden crime going on during conflicts both staff and I have covered a lot of trials where people have been given I don't know a dozen years or something in prison for some war crimes then you get crimes against humanity and for crimes against humanity you have to prove that it is widespread and systematic so that's another level and then you get to genocide and it's not that genocide is a kind of a much worse crime but it's much more difficult to prove than some of the others because you have to prove intent which means you have to show maybe some insiders have to give some testimony to say Putin was thinking this at the time in order to be able to prove genocide so war crimes is you know it's not nothing crime but it's a kind of a basic crime that Kareem Khan has gone for yeah and in that sense this is a kind of smart thing to charge him with because if you have these people and a war crime is fairly straightforward you have to establish that there was an armed conflict at the time that this happened and you have to confirm that people were brought from the area where the fighting was into another country into the country that is one of the countries that is fighting the war so in that sense you know you have Putin and Lavovabelova saying on record that these children were transferred to Russia that your evidence is almost already there for the war crimes bit. It's the hope then that although you may not actually get your hands on this pair in the immediate future at some point later on when perhaps has been regime change in Russia that these charges will then actually have some real meaning and some real value and the pair of them will finally be delivered to some sort of justice. I think it's important to recognize that these are really long term charges they don't go away they don't you know disappear until somebody's dead that's it he's now going to have to face these charges one way or the other that's also an issue that I keep on coming across amongst people who are trying to do peace deals is saying hey why have we got courts like this involved because it actually ties our hands sometimes in terms of doing deals now I think Steph would point back to the Yugoslav tribunal and how it was with regime change that then you know you could put a lot of it on trial I'd point to a particular trial that went on in Africa which was the president former president of Chad and it was only because he was removed from the country and then was actually basically regime change within a particular African country in Sanago where he was put on trial and they said yeah we'll put him on trial in the end yeah I think this is absolutely it's the long haul I think there's nobody that is expecting Putin or the child commissioner to appear in the hage in the coming months or even years but as everybody that I spoke to involved in international justice has the same thing we never thought that former Serbian strongman Slobodan Milosevic would show up in the hage and then regime change happened and then all of a sudden it's very very practical for your political opponents if the regime change involves your political opponents what is better than to remove somebody whose potential political threat to your regime you send them to the hage that's also what some newly minted African leaders did that's how the former president of Ivory Coast ended up at the ICC because it's very nice to have your political opponents sit in a prison in the hage where he cannot communicate with his following or doesn't have access to the internet so you know we've seen Slobodan Milosevic end up in the hage we've seen Serbian Bosnian Serb leaders Radovan Karidic and the military leader Radkomnadić end up in the hage which we never thought possible so you know it takes a long time but they do end up in the hage at some point it's what kind of history has shown us so far. Now I was listening to your podcast a symmetrical haircut's rather wonderful name we're gonna have to rebrand ourselves I think Patrick and you were you know it's very fratuteous wasn't it this news came out at the same time as a as a conference was going on on international justice and you were getting the opinion the immediate opinion of a number of people I can't remember if that was you doing that stuff but what one of you was and the general opinion seemed to be that these charges were significant there's a you know a lot a lot of speculation in the press Patrick's not entirely convinced himself I think it's more significant than you know a lot of people imagine is that fair to say from your community this is a significant moment. We love the skepticism that you should express I don't think anybody should just kind of take a press release and just say wow this is amazing but within the community that we engage with we engage with international law professors activists who try to use the courts there's this sense that I'm constantly trying to get some change happen somewhere some opening some methodology whether it is a small case in Sweden we've seen an Iranian torture chief put on trial in Sweden over the last year whether it's setting up a new sort of investigation somewhere we've seen you know investigations into Syria investigations into Myanmar where they're just gathering the evidence there's no trials but they are gathering the evidence and there's this sense that the ICC is like if you can get the ICC involved then you've really achieved something and this Ukraine situation has had this huge amount of attention on the in the justice field we've got a joint investigative team we've got money coming in from all kinds of European countries we've got all kinds of stuff and we didn't see any result as such out of any of this until now so of course our bubble I mean we recognize it is a bubble but average is just really excited because suddenly we've got a small result in terms of the future and the cynicism that you're expressing yeah you think you know I've got a number of people probably in other parts of the world who's saying but what about us you know what about the justice that we deserve as well can I just jump in there I didn't want to sound cynical I'm just being a little bit skeptical just looking at the results but I completely support you know the the idea that the signal has to be sent that there is no such thing as impunity and I think that really is the fundamental thing that you're doing which is highly admirable and of course you we all want to get the best results possible but as you rightly say in the current circumstances early successes are perhaps a bit too much to hope for it's what did they clear that up no and absolutely one of the things that you have to remember also for my work as a religious journalist I don't think there would be any story that we would write about Vladimir Putin where it would not have at least one line saying that he is an indicted war criminal just because that's the way the news works so this as janitor this sticks to him he cannot unless he shows up in in court and they have a kind of confirmation of charges or some kind of legal proceeding where he would be exonerated or acquitted or the charges against him couldn't be confirmed that is the mark that stays with him and with the child commissioner so in that sense it's very hard to be erased and it really does matter and it impacts travel maybe the question is how much does anywhere does Putin go but you know officially everybody who's an ICC member which is 123 states are obliged to arrest him and hand them over to the court if he shows up now there is a lot of question and some countries are saying that they might not notably Putin is scheduled to travel or invited to go to the BRICS conference in South Africa I think in September South Africa says they have it have invited them but they have a law on the books saying that he would have to be arrested now South Africa has previously not arrested the Sudanese president who was also under ICC kind of warrant but it's a diplomatic problem for them and for him and he'll encounter that wherever he goes with nations that are ICC members well one thing we haven't mentioned is the fact that the prosecutor framed the specific charges within the sort of broader sense of a war of aggression how significant do you think that is because it would suggest to me that there are other charges coming down the pipeline well we have done some reporting also for writers and there's also some New York Times report that there are more charges coming so we are expecting indeed that there will also possibly be charges brought against this October wave of targeting civilian infrastructure as potentially a war crime that is something that we know that the office of the prosecutors looking at I think it's also a kind of very high stakes a game of calling dibs and we know there is an effort to buy the Ukrainians and some European countries and the UK and the US to establish a special tribunal for the crime of aggression which is essentially the crime of invading another sovereign country which the ICC under the circumstances cannot prosecute Russia for in the Ukraine situation and we know that the current prosecutor doesn't like this idea of the aggression tribunal he would like to either have the ICC prosecute aggression or kind of have the attention not taken away from his court but on the ICC so by basically issuing the restaurant he does two things he is the first so now maybe the European countries that support the tribunal of aggression are going to be more reluctant to put money into that because there's already a procedure against Putin and the ICC should have first dibs on the other hand he is acknowledging that he's seeing that this has happening and is kind of putting his legal weight behind calling this a crime of aggression so I think I think that's a political diplomatic move by the prosecutor. Well that was fascinating wasn't it do join us in part two for the second half of Janet Steph's interview. Welcome back to our big interview with Janet Anderson and Steph Fandenberg. Is there any sense that Putin will be able to argue that he's immune from these charges that in a legal sense that he obviously rushes you've already pointed out is not a significant treat to the treaty therefore there is no legal basis for these charges or is that just some antics. There's not much that people who work around the ICC will point to to say that because Russia's not a member it wouldn't apply to him because Ukraine has given the ICC jurisdiction over this therefore and that's a straightforward thing but there is still a debate over whether the ICC really has the ability to put a head of state on trial they say that they have I mean they've given themselves that right they are a sufficiently international court to do so but there are still some scholars who are arguing backwards and forwards on that and I don't expect that to die down entirely I expect that to come back up. I mean we're all working out we in the this sphere of huge amount of disinformation that goes around this conflict so I do think it's important to try and separate off fact from argument around it so that's why I put it in those two terms there's no question that there is not the ability to put Putin on trial because of Ukraine giving jurisdiction full stop but there are some questions on the other issue and I have yet to see a political leader on trial who does not try to argue that the court he is in front of is an illegal court so I expect in that sense put into repeated I expect if he ever comes to the hagg this will be one of the main arguments there's usually a couple there is you know a destroyer's noise and illegal tribunal there is I was not a war monger I was a peacemaker and then there is the classic I was just surveying from the top and I didn't know what was happening on the ground and if you're a soldier on the ground with blood on your hands you say I got all my orders from the top and former soldier on the ground I couldn't influence this that is the kind of classical defense that you would mount so I expect this to continue and even if even during a court case that is the thing that people will point out and that is what what a good defense will probably look like I mean it seems to me that the significance of the charges because by the way when I asked that question before I am more convinced that something very significant has happened here and it seems to me that whether or not Putin ever does come to the hagg or whether he is actually tried for his crimes the fact is a really strong signal has been sent in the middle of a war that what he's doing is criminal activity and that is going to have an effect both on the people who support him in Russia in my view but also on the population more generally and maybe even soldiers on the ground in Ukraine so it is a significant moment in my view whether we actually see him tried or not and I think you already saw some effect of that because yesterday there was reporting out of the UN that the Russian ambassador to the UN had said that you know these charges are false because we are going to return these children to Ukraine so that is already you know somebody has talked to their lawyers and somebody in Moscow some lawyer got through and and Russia was like you know this maybe if we read the fine print that doesn't look very good maybe we should you know at least make the remark that we are trying to reintegrate them and this is not a permanent situation which is you know already significant having some influence in at least how they presented so it is obvious that this is criminal conduct in the eyes of the ICC and Russia has to engage with that assessment somehow and they are even though they are trashing the court and you have the ex-president saying that they would send missiles to the Hague you on the other hand have this moment of the the Russian ambassador to the UN saying no no no no no we are not keeping those children we are going to send them back to Ukraine when it is safe which is which is no a different tune that he is singing them what they were saying before I can certainly relate that to discussions hints that you get for example the Israel Palestine situation is also at the international criminal court and what we know is that the Israeli military forces have incredibly effective legal advisors who will help to define exactly how legal a particular action is I mean whether you can target that building or that building what kind of warnings you have to give everything that goes on under the international humanitarian law under the Geneva conventions and you can you can physically see that going on sort of during these you know when when it goes up and down because the ICC is watching not saying that the ICC is about to kind of put out a warrant for Netanyahu or anyone there because I think that politically that's a lot more difficult for them to do than to do with Putin where they have really got this groundswell of opinion amongst the west that this is a good good thing but your right I think it does have an influence on how a war is conducted by putting out an arrest warrant like this at this point and for that reason alone it's got to be a good thing and just so the last question and a bit of an unfair question really because none of us really know how things are going to turn out but if you you mentioned Milosevic before and I remember when he was initially charged not believing in a million years that Yugoslavia was ever going to give him up and as you both as one of you pointed out he was given up and he did die in the middle of a trial and so getting your crystal ball out for both of you can you imagine do either of you think it's likely that one day we might see Putin in the hagg? I wouldn't bet against it not only I have the example I followed the Yugoslav Tribunal very closely so there you had Milosevic right off on Karatech Radkol Mandic I was even in Belgrade when Mandic was arrested and I couldn't believe that they finally found Mandic as Janet said he sent her brain chard I think we saw in the past couple of years there's been a tribunal for the Khmer Rouge regime in Cambodia which is in the 1970s so definitely you know if I had to place a bet my bet would be that he will be in the hagg at some point maybe will I have my seniors bus pass by then quite probably you know I don't know at one time I think I probably I might have been retired I'll probably come out of retirement to go and see him he's also old there are some speculation about his health so those are all things that could factor in but if I had I don't know five pounds to put on it I would put on in in some form we might see him in the hagg at some point because most of the indictments I've seen so far something has come of it Janet oh I'm not going to second guess Stefan her bus pass the prison's just behind me the detention unit is is just there are the ICC's just over there so I've seen them come I've seen them go I also would not bet against it but definitely not in the short term brilliant thanks so much both of you that was fascinating thank you for having us thanks yes well I really enjoyed hearing that I'm sorry if I sounded a little bit negative at the beginning but it does drive me that for the amount of energy that goes into these things you know all very admirable results are often not spectacular and I think that's fundamentally because the only way you ever actually get to deliver a war crimes tribunal on the scale of say Neuronberg is when you have actually crushed the enemy and you could deliver victors justice which is what it's pejoratively called usually but I mean it may be imperfect victors justice but it does it is actually justice and I think so many things have to happen before you actually get an indictable criminal into a court and set him off to prison it makes the chances of success pretty slim yeah I think it was interesting some of the points they made about the sort of almost the tactics of the prosecutor Karin Khan going for a charge against Putin which frankly let's face it was pretty surprising I mean it took me by surprise but is has a relatively low proof threshold you know I mean pretty clear what's gone on and they even added actually that they looked to be indications that the Russians are trying to mitigate some of their crimes already so although they're saying on the one hand well you know first of all nothing to see here and secondly we're not bound by you know the ICC legally anyway it looks like they have been shaken by this a little bit for them to start talking about threats that they're going to actually send missiles to the hake tells me they're rattled frankly Patrick you know I think it does have a reputational impact for sure as we've seen from the response I mean the word criminal is one that's bandied around quite a lot by regimes like the Russian regime and to have it attached themselves is something that obviously causes them some pain which is rather good to see my feeling is that it's good that the signal is sent that there's no such thing as impunity in this world of even though as Stefan Janet said it may take a very long time that shadow is always sort of hanging over them and of course when you when you do actually put one of these characters these sort of almost quasi demonic figures into the dock they shrink in front of your eyes I remember I covered a couple of the war crimes tribunals in the hake from the Yugoslav Civil War and people that like Gladich you know who was really almost diabolical figure in our eyes I did actually come across him once or twice in the flesh suddenly they're just they're the whole kind of persona shrinks they're just another sad old defeated man standing in the dock and I think that's a healthy outcome yeah and you know they said something else that was really striking which is that these charges will remain with Putin till he dies he is going to be someone who has been accused of war crimes whether we'll ever get to the point that he might actually be convicted of war crimes is another matter but how fascinating wasn't it so here both of them say they wouldn't rule it out but he's got to live with that charge hanging over his head and you know if we all accept Patrick in our study of history that dictators of people who have an inflated sense of me go they're probably sociopaths most of them but they are also people who are very you know closely guard their reputation or at least the way they way they are seen by their own people better way putting it and this is undoubtedly in my view going to tarnish him to some extent and also great to hear that it may actually make a difference to the way the Russians are acting on the battlefield that may be very optimistic but even if five or ten percent is taken off some of the monstrous acts they're committing it will have been worth it absolutely and to people who might think that this is all a bit naive and optimistic these international war crimes efforts it's interesting to hear Janet and Steph saying that there are these you know quite cynical calculations being made by the regime that replaces the outgoing regime if that's how the the indictment walk him or is delivered in which they say what better way of getting rid of a political threat and sending them off to their hate I think in the case of Putin it's more likely that if he is overthrown justice will be done first in Russia before he actually makes the journey to the Netherlands but yeah it's interesting to hear that there is there are real world calculations being made here yeah and some you know well that is though you know your point that he may be done away with him Russia I mean that is rather the Russia way of dealing with matters and yet at the same time I can almost imagine a scenario where pregusion who seems to be distancing himself from the senior Russian leadership including Putin now talking about concentrating on Africa instead of Ukraine where of course they've come up against a bit of a brick wall in back moot maybe you know thinking a hold on a second Putin is weakening slowly but surely and this is another chink in his armor here's hoping okay that's all we've got time for this week to join us next Friday when we'll be giving you all the latest news and analysis goodbye