Cracks in the BRICS as Putin’s Legal Exposure Grows

President Putin’s decision to skip the annual BRICS meeting in South Africa last week was greeted with resignation in Moscow and seeming relief in Johannesburg. Putin delayed this decision to the last minute; Russia is a founding member and one of the organization’s strongest supporters, so it was quite clear that Putin wanted to go. There was only one hitch: if Putin went to South Africa, he would have to be arrested.

The BRICS (Brazil, Russia, India, China, South Africa) began life as a marketing gimmick invented by a Goldman Sachs banker who sought to combine several emerging economies under one acronym. From these public relations roots, the BRICS morphed into an informal trade group with a mission of encouraging trade and investment among its members. The BRICS also established their own development bank, which was conceived as a global alternative to the World Bank.

South Africa provided the “S” in 2020, one year after the organization was established. South Africa, however, is also a member of the International Criminal Court (ICC) and a signatory to its major obligations. As a result, when the ICC indicted Putin in 2022 for the illegal deportation of Ukrainian children to the Russian Federation, it became incumbent on South Africa to detain him as soon as he came under its jurisdiction.

South Africa clearly wanted to avoid this scenario; it has refrained from making any public statement about Russia’s invasion of Ukraine, and its president has voiced the fear that any attempt to arrest Putin could quickly spiral into a major scandal. In the end, Putin announced that he would simply participate virtually, and that Foreign Minister Lavrov would represent Russia in person. But while the crisis abated, the BRICS controversy represented Putin’s first major brush with international law. It most likely will not be his last.

Russia’s brutal invasion of Ukraine has focused renewed attention on international human rights law and how Russian leaders and Putin can be brought to justice. Much of the legal details still need to be worked out, so any sort of international tribunal or legal proceeding still remains in the future. Nevertheless, processes are already in motion as to how to hold Putin accountable for his actions.

Seeking Justice through an International Tribunal

From the beginning of the war, Ukrainian prosecutors and legal officials have been investigating potential war crimes committed by the Russian military. In April 2023 Ukrainian top legal official Andriy Kostin reported that Ukraine had documented 80,000 potential war crimes committed on Ukrainian territory. The crimes include rape, torture, and kidnapping. Kostin insisted that an international tribunal was required both to deter any future aggressor and to potentially bring Russia’s highest officials to justice. He noted that if a future proceeding were to be conducted under Ukrainian law and jurisdiction, Russia’s highest officials could escape legal responsibility. (For the Kennan Institute’s analysis of Russia’s war crimes in Ukraine, please see this Focus Ukraine article and listen to this episode and this episode of The Russia File podcast.)

The questions of venue and applicable law remain critical variables in any potential trial. As a member of the Security Council, Russia naturally would veto any UN special tribunal to prosecute war crimes. The one potential end run around Russia’s inevitable veto would be for the UN General Assembly to create a new fact-finding body or criminal tribunal to collect and analyze evidence. The UN General Assembly voted to condemn Russia’s invasion in February 2023 by a vote of 141 – 7 (with 35 abstentions). But since this resolution, it has become unclear whether the global south wants to be involved with what it perceives as a dispute between Russia and the West. Indeed, South Africa is now considering legislation that would allow foreign leaders to visit the country even if the ICC has ordered their arrest.

The Crime of Aggression

If the UN remains sidelined, the EU has raised the possibility of creating a special court to prosecute Russia for the Ukraine war. This effort recently received new momentum with the creation of the International Center for the Prosecution of the Crime of Aggression in Ukraine at the Hague (the ICPA). Most international human rights lawyers have recognized that among all the war crimes founded by the Nuremburg Charter in 1945, the most appropriate crime relevant to Russia’s actions in Ukraine is the crime against peace (aggression). This charge was the creation of the Soviet lawyer Aron Trainin and—along with crimes against humanity and genocide—represented one of the major advances in international justice at Nuremburg.

This charge fell out of practice after World War II (it was last prosecuted at the Tokyo war crimes trial in 1946), but the crime of aggression was defined and placed under ICC jurisdiction in 1998 as part of the Rome Statute. Most notably, Russia (like the United States) did not ratify the Rome Statute and therefore can argue that it is not subject to its requirements. How this new ICPA reactivates this charge will be the subject of major scrutiny and represents the best chance of bringing Putin to justice (while putting renewed pressure on the United States to ratify the Rome Statute).

Putin’s Enduring Legal Problems

All of the above activity does not suggest Putin will be in the dock anytime soon. It is not expected that he will travel to the Netherlands or that the Russian state will extradite him to an international tribunal. On the contrary, the Russian Duma is now considering legislation that would carry a five-year prison sentence for anyone who cooperates with the ICC investigation.

Many foreign policy thinkers and globetrotters are trying to anticipate how this disastrous war ends and Russia somehow is reintegrated into the global community. Russia, however, has exited or been expelled from so many global institutions that it is unlikely to be given the benefit of the doubt if it seeks to reapply (as occurred in the aftermath of the collapse of the Soviet Union). The government’s recent decision to essentially expropriate several Western companies and place them under Russian control will only complicate the situation.

The assumption has always been that this war will end on the battlefield or at the negotiating table. A third option, however, needs to be considered as well, namely, that the war will conclude in a yet to be designated courtroom. Indeed, as the numerous ongoing investigations, indictments, and legal initiatives suggest, the pursuit of accountability—for all of Putin’s war crimes committed in Ukraine—may ultimately serve as the final word on the war. The search for such a legal verdict is by no means imminent and may even stretch beyond the formal cessation of hostilities. Nevertheless, Putin’s legal problems will not go away anytime soon.

The opinions expressed in this article are those solely of the author and do not reflect the views of the Kennan Institute.