Verdict — The Court

THE COURT OF THE CITIZENS OF THE WORLD

File Number TCCW-1

The PROSECUTOR

AGAINST

The ACCUSED,

VLADIMIR VLADIMIROVICH PUTIN (“VLADIMIR PUTIN”)

ORDER CONFIRMING INDICTMENT

The Court of the Citizens of the World sitting at The Spanish Court in The Hague has heard sufficient credible evidence to support a finding that there exist substantial grounds to believe that the President of Russian Federation used grievous and destructive armed force against the sovereignty, territorial integrity, and political independence of Ukraine and confirms the indictment presented to the Court by The Office of the Prosecutor based upon the Statute of the International Criminal Court, and the authority of the Rule of Law, in that VLADIMIROVICH PUTIN has committed thousands of acts amounting to the Crime of Aggression. These constitute, in particular, contraventions of Article 8 bis (a), (b), (c) and (d), of the ICC Statute and the authority of the Rule of Law.

By actions taken commencing in January 2021 or earlier and continuing until today and in plans for the future, President VLADIMIR VLADIMIROVICH PUTIN, through his de jure and de facto power and authority, and thus in a position effectively to exercise control over or to direct the political and military action of the Russian Federation, planned, prepared, initiated and executed and continues to plan and execute, the Russian Federation’s acts of aggression in Ukraine. The Court accordingly:

a. finds that there are substantial grounds for the confirmation of an indictment to be issued against President Vladimirovich Putin for more than one thousand instances of the Crime of Aggression committed against the territory and people of Ukraine from about January 2021 or earlier until cessation of Russian hostilities.

b. issues an indictment against President Vladimirovich Putin for contraventions cited above and because those acts were of such character, gravity, and scale that they constituted a manifest violation of Article 2(4) of Charter of the United Nations for the reasons described by the judges in their oral opinions; and

c. calls upon and urges the United Nations, the European Union and all the governments and peoples of this world to take every step necessary to ensure that a court with legal powers issues an indictment against President Vladimirovich Putin and takes appropriate measures to arrest the perpetrator and put him on trial in an official Ukraine tribunal as soon as possible.

Agreed and signed on this 24th day of February 2023 by the judges of this Court.

The Court of the Citizens of the World: Opinion of Zakeria M. Yacoob, Judge of TCCW and Final Decision

The Court of the Citizens of the World – a peoples tribunal – was organized by the Cinema for Peace Foundation, relating to the crime of aggression in Ukraine. The tribunal considered charges brought against Vladimir Putin for the crime of aggression presented by a Prosecution team, and heard witness testimony from 20 – 23 February 2023 in public hearings in The Hague. The three judges at this tribunal – Zak Yacoob, Stephen Rapp and Priya Pillai – came to a decision regarding confirmation of the charges, and these posts are their independent reasons relating to the decision, pronounced at the last hearing of the tribunal on 24 February 2023.

This part of the opinion was delivered after the opinions of Judges Stephen Rapp and Priya Pillai had delivered their opinions which have been already published at this forum and must be read in that context. The opinion starts with a few comments with which Judges Pillai and Rapp substantially agree. The text of the final written decision delivered at the hearing is then set out.

24 February 2023

Thank you very very much Judges Rapp and Plilai. It is now my turn. Before I read the order or decision of the Court signed by all of us, I would like to make a few comments or observations of my own.

I must first clarify and emphasise that the order, judgment or decision of the Court of Citizens of the world has no legal authority and is accordingly not binding on anyone. However, this can by no stretch of the imagination mean that it is useless. On the contrary, this Court has the force of moral persuasion, and hopefully, the moving, substantial and genuine evidence heard here, and the decision of the Court now being delivered, will be a powerful instrument or convincing reason and will serve soon to persuade the International community to take immediate and appropriate action against Vladimorovich Putin, the President of Russia to face trial.

Second, I must draw pertinent attention to the fact that while there has been some evidence which bordered on ideological criticism of one side and implied praise of another, the prosecution has considered that any question of ideological correctness is entirely irrelevant to our decision. Neither the evidence presented nor our decision must be understood as support for one ideology or another.

Thirdly, I would like to set out my general approach which must be seen in the context of the other valuable components read by my colleagues and heard earlier earlier today. The approach is that it is common cause, or to put it differently, there can be no dispute whatever about the fact that there was a violent, unacceptable incursion by the Russian Army into an independent Ukraine before Ukraine’s direct involvement in any armed attack against Russia. There has not, nor could there have been, any denial of this inescapable hard fact.

In fact, President Putin has claimed full responsibility for this brutal incursion and has attempted to justify it. The “justification” can only be described as nothing but pathetic and absolutely manipulative. His actions are an affront and insult to the International Community and to the integrity of the citizens of the world. Years of preparation and planning refute the proffered public justification and I reject it in no uncertain terms.

Fourth, we have been considerably moved by the untold suffering of tens of thousands of vulnerable human beings who were not army personnel. We have heard evidence of a representative sample of these atrocities over a long four days. This evidence was emotionally utterly exhausting. But we have done our duty. We express our deepest sympathy with the people of the Ukraine and express the fervent hope that there will be at least some justice and restitution.

Finally, I am compelled to state that national and international peace and security are completely interrelated. It is not possible to have national peace and security without international peace and security. And the impunity of leaders for their heinous actions simply because they are leaders of their countries is anathema to the achievement of world justice.

I now read the decision that all of us have signed.

The Court of the Citizens of the World: Opinion of Stephen Rapp, Judge of TCCW

[Stephen Rapp is a former US Ambassador-at-Large for Global Criminal Justice and former international prosecutor at Rwanda and Sierra Leone tribunals.]

The Court of the Citizens of the World’ – a peoples tribunal – was organized by the Cinema for Peace Foundation, relating to the crime of aggression in Ukraine. The tribunal considered charges brought against Vladimir Putin for the crime of aggression presented by a Prosecution team, and heard witness testimony from 20 – 23 February 2023 in public hearings in The Hague. The three judges at this tribunal – Zak Yacoob, Stephen Rapp and Priya Pillai – came to a decision regarding confirmation of the charges, and these posts are their independent reasons relating to the decision, pronounced at the last hearing of the tribunal on 24 February 2023.

24 February 2023

We have determined that there is sufficient evidence to indict and arrest Vladimir Putin for the Crime of Aggression. We have decided to confirm an Indictment and have asked the Registry to make its text widely available to the public.

This morning I wish to speak about the applicable law and how it fits this situation. My colleagues will describe the evidence and explain how its supports findings of criminal conduct by the Accused, and why it meets the substantial evidence standard for confirmation of an Indictment (Article 61, Rome Statute)

The Definition of the Crime of Aggression

Article 8bis of the Rome Statute of the International Criminal Court (ICC) defines the Crime of Aggression as follows:

… the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

However, because of the terms of Rome Statute Article 15bis, the ICC does not have jurisdiction over the Crime of Aggression allegedly committed by Russian citizens on the territory of Ukraine (while it does have jurisdiction over alleged War Crimes, Crimes Against Humanity, and Genocide committed by Russian citizens in Ukraine since November 2013 by reason of Ukraine’s two declarations filed under Rome Statute Article 12(3)).

However, we conclude that the ICC definition of the Crime of Aggression can and should be applied to the acts of Russian citizens in Ukraine because it reflects customary international law applicable to all the citizens of the world. We do so because we are sitting as an international tribunal of a kind that could be established under a treaty between the State of Ukraine and the Secretary General of United Nations, acting on the recommendation of the UN General Assembly (UNGA), representing the international community as a whole.

While the Rome Statute’s definition of crimes is not always reflective of customary law, it is so reflective in the case of the Crime of Aggression, as the text of Article 8bis was approved unanimously by ICC States Parties and Non-Party States, including Russian representatives in conferences up to and including the ICC Kampala Review Conference in 2010. While the adoption of the aggression amendments to the ICC Statute was contentious, the controversy always involved the conditions for the exercise of jurisdiction, now reflected in Rome Statute Article 15bis. Indeed, the Russian delegation specifically stated that it approved the definition of the crime. Any questions about the definition raised by another nonparty were resolved by the consensus adoption of the “Understandings” in Annex III of Resolution 6 of Kampala Review Conference.

Article 8bis thus passes the test for recognition as international law as set forth in Article 38(1)(b) of the Statute of the International Court of Justice. Moreover, if there were a UN Security Council (UNSC) referral of Aggression in Ukraine to the ICC under Rome Statute Articles 13(b) and 15ter, the ICC would apply 8bis to the acts of a nonparty, just as it authorized prosecution of citizens of Sudan and Libya for other crimes defined in the Rome Statute, even though those States never joined the ICC.

Application of Article 2(4) of the UN Charter

Article 2(4) of the United Nations Charter prohibits all states from threatening or using force “against the territorial integrity or political independence of any State.”

There is no question that Ukraine is an independent State and that its borders are universally recognized. While its independence was a fiction when it was part of the USSR, it became fully independent with the breakup of the Soviet Union in 1991, and its independence, sovereignty, and borders were guaranteed in the Budapest Memorandum of 1995 signed by Russia and other States.

While Article 39 of the UN Charter mandates the Security Council to determine the existence of ‘an act of aggression,’ and this determination was blocked by a Russian veto in the UNSC on 26 February 2022, the UNGA made the necessary determination under the “Uniting for Peace” precedent by a vote of 141-5 on 2 March 2022. However, as provided by Rome Statute Article 15ter (4), “a determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings” and it is necessary for evidence to be presented to prove the predicate act(s).

Acts of Aggression and the Crime of Aggression

Article 8bis sets forth a two-step process. First a determination is required that certain defined acts have been committed. Then, and only then, it must be determined whether the acts were of such “character, gravity, and scale as to constitute a manifest violation of the UN Charter” and thus the Crime of Aggression. Given the “Understandings” adopted at the ICC Review Conference in Kampala in June 2010, and combination of the three factors is required. A military mission launched to protect a threatened group from atrocities would constitute an act of aggression, but not necessarily the crime, if the mission’s character was solely humanitarian and international humanitarian law (IHL) was strictly complied with, and the scale was narrow, and the gravity measured by loss of life or destruction of property was limited.

The Prosecution here has asserted that forces under the command and control of the Accused have committed five of seven acts described in Article 8bis (which adopted the listing set forth in UNGA Resolution 3314 of December 1974), specifically those at subparagraphs a, b, c, d, and g. Briefly described, these include the following:

Invasion, attack, or occupation by one State on the territory of another State by armed forces.
Bombardment by one State of the territory of another State.
Blockade by one State of the ports or coasts of another State.
Attack by the armed forces of one State on the armed forces of another State. 5.
Use of mercenaries or irregulars by one State against another State.

As my colleagues will describe, the evidence of the first four acts is overwhelming. As to the fifth, while there is major press reporting about the deployment of the Wagner Group, and of its mercenary character, we did not hear from any of the 16 witnesses or see in the proffered documents any specific evidence describing the times and places of Wagner’s substantial involvement. Therefore, a majority of the Court declined to confirm this allegation in the Indictment but remains open to considering evidence that would support an appropriate amendment.

As for the “character, gravity, and scale” of the acts, the latter two terms are well-understood. As my colleagues will also describe, the evidence is overwhelming on ‘gravity; given the numbers of dead and injured combatants and civilians, and the destruction of property that an expert testified had already reached US $127 Billion by six months ago. As to ‘scale,’ the evidence is also abundant, given that the invasion occurred over a two-thousand-kilometer front, and ground attacks have been continuous along large parts of that front for a full year, as well as bombardments from the air and sea of targets throughout the second largest country in Europe.

The term ‘character’ is less well-understood, and this factor might be found to be insufficiently proved if a military operation was of a humanitarian nature. However, we conclude as a matter of law that an operation would not be of a humanitarian character unless it were consistently conducted in a manner that caused significant harm to civilian life and infrastructure.

The Defenses of the Accused

While it will be for the Accused to raise defenses at trial, the Prosecution is required to seek and present evidence that is exculpatory as well as inculpatory, and the consideration of such evidence bears on our determination of whether the evidence as whole is sufficiently substantial to merit conformation of an indictment.

The Prosecution has presented the speeches of the Accused that were delivered on 21 and 23 February 2022, asserting that the ‘special military operation’ would be undertaken for humanitarian reasons to protect threatened Russian ethnic or Russian-speaking groups. This is not a defense to an act of aggression, according to the decision on provisional measures by International Court of Justice in Ukraine v. Russia on 16 March 2022, where it held that “it is doubtful that the Genocide Convention authorizes a contracting party’s unilateral use force in the territory of another state for the purpose of preventing or punishing a genocide.” This assertion is of value to the Accused, only in showing that the act of aggression was not of character to constitute the crime of aggression. However, the evidence of violence or discrimination against such groups is lacking, and the wide scale of violations of IHL, particularly the massive Russian attacks on civilian energy infrastructure as cold weather began in October 2022, make it impossible to classify the Russian ‘military operation’ as an exercise of humanitarian intervention.

The Accused has also been heard to assert the Russian use of force was an exercise of self-defense under Article 51 of the UN Charter and has so notified the United Nations. If valid, this would be a complete defense. But there is no evidence of an actual or threatened armed attack by Ukraine on Russia. The Accused may be asserting that such attack was imminent as Ukraine was fast becoming a NATO ally. To extent that this could be viewed as sufficient, there as no evidence of this either. As General Wesley Clark testified yesterday, it was unlikely (before the Russian invasion last February) that Ukraine would have been admitted to NATO and no offensive weapons had been placed there by NATO countries. What Putin feared was a successful democracy on his borders. Hardly an armed attack.

The Individual Criminal Responsibility of the Accused

The Prosecution has presented abundant evidence that the Accused is a leader that qualifies for prosecution under Article 8bis as he is “in a position effectively to exercise control over or to direct the political or military action of a State.” He benefits from no personal immunity as a Head of State, and he would not at the ICC under the Rome Statute Article 27, or at a UN-Ukraine treaty-based international court given the decision of the International Court of Justice in the Arrest Warrant Case (2002), the Special Court of Sierra Leone in Prosecutor v Taylor (2004) and of the International Criminal Court Judgment
in the Jordan Referral re Al-Bashir Appeal (2019).

Finally, the public statements and announcements of the Accused, followed immediately by the threatened actions, are highly relevant to his liability for the actus reus of the Crime of Aggression, specifically planning, preparation, initiation, and execution. They can as well satisfy the mens rea requirement, in showing knowledge of the factual circumstances, inconsistency with the UN Charter, and the character, gravity, and scale of his ‘special military operation.’

I yield now to my colleagues for their analysis and conclusions.

The Court of the Citizens of the World: Opinion of Priya Pillai, Judge of TCCW

24 February 2023

This World Court – or people’s tribunal – has been called to do what is not being done so far – to assess and make a legal determination as to the crime of aggression in Ukraine, and the responsibility for this crime.

While the crime of aggression is not new per se, it has not been prosecuted since the trials at Nuremberg. This is an opportunity to address some of the legal complexities in the crime of aggression. At this stage – the confirmation of the charges – it is to determine whether there is sufficient evidence to establish “substantial grounds” that a person has committed the crimes as charged.

But much more than this legal determination, the hearings this week have given an opportunity to survivors to come forward with their account of what has happened to them, and how they have coped with what can only be described as cataclysmic events in their lives. We thank them for their courage, fortitude and determination to bear witness.

Evidence has been adduced this past week of the devastating consequences of a war such as this. We have had moving testimony from many ordinary citizens of Ukraine, who, before 24 February 2022, were going about their regular lives. We heard from two teenagers whose bravery in the face of tremendous loss can only be viewed with absolute awe and complete compassion. We have had witness testimony this week from individuals from across Ukraine – from Kherson, Mariupol, Bucha, Hostomel, Kazarovici, Ritomer, Kharkiv, Chernihiv, Berdansk. They have spoken to us of the terror of the invasion and the upturning of their lives. They have told us their stories of extreme loss and pain, which no one should have to go through. They have been witness to and have experienced detention and captivity, torture, filtration camps, witnessed close family killed before their very eyes, and have described in detail the destruction of civilian infrastructure and the impact of this invasion on their lives.

This is the human face of a war such as this, and the impact of these actions that can only be described as illegal and criminal.

Coming to the specificity of the crime of aggression, I will focus on the elements of the crime of aggression – the character, gravity and scale, and the manifest violation of the UN Charter – as well as the acts defined that may qualify as aggression.

There is no doubt from the witness testimony as well as the documentary evidence provided to this tribunal that the invasion was of such a scale, gravity and character as to constitute the crime of aggression, that has violated the UN Charter. The attacks on Ukraine were spread all over the territory of the country, starting in the east and south, and enveloping much of the country subsequently. The ferocity and manner of the attacks – including artillery, aerial bombardment, ground troops, tanks – left no doubt as to the intentions of the invasion. Furthermore, the attacks were not restricted to military targets – there was rampant targeting of civilians, both in the initial days of the invasion as well as in occupied areas. We heard from the witnesses as well as had expert evidence of the deliberate targeting of hospitals, ambulances, pharmacies – 707 incidents recorded in one report – violative of the laws of war. These were in many instances targeted and in others, a result of indiscriminate acts. We heard from witnesses of the ways in which civilian infrastructure was targeted – from water facilities, to electric sub-stations, to bombardment of shopping centers and grocery stores. We heard of the over 31,000 potential war crimes cases documented by the Centre for Protection of Civil Liberties, with clear patterns of violations emerging from the analysis. The killings, detention, torture, the use of civilians as human shields, of conflict related sexual violence – all indicate an egregious violation of international law, and expose the character and manner of the invasion to be the ultimate crime of aggression. The words of the UN Secretary General, just yesterday at the emergency special session of the UN General Assembly to mark one year since the invasion, this is a “violation of the UN Charter and international law” – clear expression of the manifest violation of the UN Charter.

The commission of some of the acts that may qualify as aggression from Article 8 bis of the Rome Statute – such as, Attack on or occupation of the territory of another State by armed forces; Bombardment of territory of another State; Blockade of ports or coasts of another State; Attack by armed forces of the armed forces of another State; and the sending of irregulars or mercenaries – all indicated by evidence to have been committed here.

All these acts of aggression were of a scale and magnitude, to necessarily have been planned and prepared for, well in advance of 24 February. As the expert witness General Clark indicated, this type of invasion was certainly not possible “overnight”, and not even in 1-2 months. The planning, preparation, initiation and execution of these acts of aggression can be clearly laid at the doorstep of the leadership of the Russian Federation, and specifically that of the President, who exercises total control over the political and military action of the state. More than sufficient evidence has been adduced to the effect that the key decision maker was one individual – Vladimir Putin, the President of Russia.

I will end with two quotes from witnesses who appeared before us this week. On being asked why they were testifying, it was to “share the stories of evil”. And if we needed a reminder, in particular on this day, one year on, in the words of another witness: “the slaughter continues, the destruction continues”.

It is incumbent on us all to make every effort to end impunity such as this and it is our hope that this is one small step towards that goal.