41. The Big Interview: Janet Anderson & Stephanie van den Berg on Putin's Arrest Warrant
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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 Hague-based journalists, Janet Anderson and Stephanie Vandenberg 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. I 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 on to that news and the specific charges against Putin and Maria Lvova Belova, can you explain when and why the ICC was set up and what are the precedents for indicting a head of state?

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 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's celebrated its 20th anniversary recently.

last year. So it's not a really long, long established court like some of the others in The Hague. It's mainly focused on African situations because a lot of countries in Africa have said 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 a bit.

And you asked about precedents for heads of state. There are three sitting heads of state who had the ICC issue an 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 Mohammed al-Qadhafi, who died before this was ever executed. And then we have the Sudanese leader Omar al-Bashir, who's still at large. He's currently in prison in Sudan, but he's still at large as far as the court is concerned.

That's not really a very impressive record, is it? I mean, I don't want to sound too critical, but, you know, given the resources and given the range of potential indictees, that doesn't seem to be a sort of huge success rate. And I'm wondering fundamentally whether the absence of the big players, notably 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 saying,

It doesn't have a police force, doesn't have a defence force, doesn't have any methodology of arresting anybody except via 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, and it 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 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 and genocide. 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 Lvova Belova are alleged to have committed and why you feel that the ICC or the prosecutor went with those charges? Well, the prosecutor, Karim Khan, made very clear from the beginning of 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 ombudswoman or the children's commission woman is charged with is the deportation of children. Now, it's charged as a war crime. So it has to be said that in the Rome statute, which is the rules that govern the ICC, deportation of children is not listed separately as a war crime. It is just deportation of population 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 narrowing it down to children and 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 your kind of communal garden crime going on during conflicts. Both Steph 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 crimes.

So that's another level. And then you get to genocide. 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 a nothing crime, but it's a kind of a basic crime that Kareem Khan has gone for.

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 occupied.

one of the countries that is fighting the war. So in that sense, you know, you have Putin and Lvova Belova saying on record that these children were transferred to Russia. Your evidence is almost already there for the war crimes bit. Is 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

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 recognise that these are really long-term charges. They don't go away. They don't 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.

I think Steph would point back to the Yugoslav tribunal and how it was with regime change that then, you know, you could put Milosevic 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 there was actually basically regime change within a particular African country in Senegal 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 Hague in the coming months or even years. But as everybody that I spoke to involved in international justice issues,

has the same thing. We never thought that former Serbian strongman Slobodan Milosevic would show up in The Hague. 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 who's a potential political threat to your regime? You send him to The Hague. 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 opponent sit in a prison in The Hague 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 Hague. We've seen Bosnian Serb leaders Radovan Karadzic and the military leader Radovan Komladic end up in The Hague, which we never thought possible. So, you know, it takes a long time, but they do end up in The Hague at some point. It's what kind of history has shown us so far.

Now, I was listening to your podcast, Asymmetrical Haircuts, rather wonderful name. We're going to have to rebrand ourselves, I think, Patrick. And you were, you know, it's very fortuitous, wasn't it? This news came out at the same time 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, Steph, but one of you was. And

The general opinion seemed to be that these charges were significant. There's a lot of speculation in the press. Patrick's not entirely convinced himself. I think it's more significant than a lot of people imagine. Is that fair to say from your community, this is a significant moment? We love the scepticism that you should express. I don't think anybody should just kind of...

take a press release and just say, wow, this is amazing. Within the community that we engage with, we engage with international law professors, activists who try to use the courts. There's this sense of 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 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 in the justice field. We've got a joint investigative team, we've got money coming in from all kinds of different 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 recognise it is a bubble, but everyone's just really excited because suddenly we've got a small result. But in terms of the future and the cynicism that you're expressing, yeah, I think, you know, I've got a number of people probably in other parts of the world who are 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

I'm skeptical just looking at the results, but I completely support 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, we all want to get the best results possible. But as you rightly say, in the current situation,

Circumstances, early successes are perhaps a bit too much to hope for. I just wanted to clear that up. One of the things that you have to remember also from my work as a Reuters 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 Janet said, this sticks to him. He cannot, unless he shows up 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

And it impacts travel. Maybe the question is how much does, you know, where 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 invited them, but they have a law on the BRICS.

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 in nations that are ICC members.

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 Reuters 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 Prosecutor is looking at.

I think it's also a kind of very high stakes game of calling dibs. We know there is an effort by 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 arrest warrant, he does two things. He is the first prosecutor.

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 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 and Steph's interview.

This podcast is supported by FX's English Teacher, a new comedy from executive producers of What We Do in the Shadows and Baskets. English Teacher follows Evan, a teacher in Austin, Texas, who learns if it's really possible to be your full self at your job, while often finding himself at the intersection of the personal, professional, and political aspects of working at a high school. FX's English Teacher premieres September 2nd on FX. Stream on Hulu.

Welcome back to our big interview with Janet Anderson and Steph Vandenberg. Is there any sense that Putin will be able to argue that he's immune from these charges, that, you know, in a legal sense that he, you know, obviously Russia, as you've already pointed out, is not a signatory to the treaty. Therefore, there is no legal basis for these charges. Or is that just semantics?

There's not much that people who work around the ICC will point to to say that because Russia is 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

Thank you.

I mean, we're all working, aren't we, in the 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've yet to see a political leader on trial who does not try to argue that the court he's in front of is an illegal court. So I expect in that sense Putin to repeat it. I expect if he ever comes to The Hague, this will be one of the main arguments. There's usually a couple. There is, you know, this tribunal is an illegal tribunal. There is, I was not a warmonger. I was a peacemaker. And then there is the classic argument.

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 from a 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 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 Hague 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, somebody in Moscow, some lawyer got through and Russia was like, you know, this is,

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. So it's having some influence in at least how they present it. 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 Russian ambassador to the UN saying, no, no, no, no, no, we're not keeping those children. We're going to send them back to Ukraine when it's safe, which is a different tune that he's singing than 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 physically see that going on sort of during the

these, you know, when it goes up and down, because the ICC is watching. I'm 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

the West that this is a good thing. But you're 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 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 Hague? I wouldn't bet against it. Not only, yeah, I have the example, I followed the Yugoslav tribunal very closely. So there you had Milosevic, Radovan Karadzic, Ratko Mladic. I was even in Belgrade when Mladic was arrested and I couldn't believe that they finally found Mladic.

As Janet said, he's Sen Habre in Chad. 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

in The Hague at some point, maybe. Will I have my senior's bus pass by then? Quite probably. I don't know at what time. I think I might have been retired. I'll probably come out of retirement to go and see him. He's also old. There's 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 some form, we might see him in The Hague at some point.

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 Steph and her bus pass. The prison's just behind me. The detention unit is just there. The ICC is 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 strike me that for the amount of energy that goes into these things, you know, all very admirable. The 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, Nuremberg is when you have actually crushed the

the enemy, and you could deliver victor's justice, which is what it's pejoratively called usually. But I mean, it may be imperfect victor's justice, but it is actually justice. And I think so many things have to happen before you actually get an indicted war criminal into a court and send 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, Kareem Khan, going for a charge against Putin, which, frankly, let's face it, was pretty surprising. I mean, it took me by surprise, but has a relatively low proof threshold, you know, I mean, pretty clear what's gone on. And they even added that.

actually, that there look 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 Hague 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, even though, as Steph and Janet said, it may take a very long time. That shadow is always sort of hanging over them.

And of course, when you do actually put one of these characters, these sort of almost quasi-demonic figures into the doc, they shrink in front of your eyes. I remember I'd covered a couple of the war crimes tribunals in The Hague from the Yugoslav Civil War. And people like Mladic, you know, who was...

really an almost diabolical figure in our eyes. I did actually come across him once or twice in the flesh. Suddenly, their whole kind of persona shrinks, and 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 are people who have an inflated sense of ego. 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 are seen by their own people, better way of 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 5 or 10 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 indicted war criminal is delivered in which they say what better way of getting rid of a political threat than 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 uh to the netherlands but um

Yeah, it's interesting to hear that there are real-world calculations being made here.

Yeah. And, you know, well, that is, you know, your point that he may be done away with in 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 Prigozhin, 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 Bakhmut. And

maybe, you know, thinking, hold on a second, Putin is weakening slowly but surely, and this is another chink in his armour. He is hoping. Okay, that's all we've got time for this week. Do join us next Friday when we'll be giving you all the latest news and analysis. Goodbye.