Putin and Trump in the Dock?

- By Jack Goldsmith

CAMBRIDGE – The New York grand jury’s indictment of former US President Donald Trump for bookkeeping crimes relating to hush money paid to the adult film actress Stormy Daniels follows upon the International Criminal Court’s arrest warrant, two weeks ago, for Russian President Vladimir Putin for the war crime of deporting children from Ukraine. These cases highlight the law’s growing, and potentially dangerous, dominion in politics – domestic and international.

Both events are groundbreaking. Trump’s indictment is the first for any president, current or former, in United States history. Similarly, international courts have issued only a handful of arrest warrants for heads of state, and never for the leader of a major power. These legal actions will set important precedents and could have enormous consequences, even if neither one results in a criminal conviction. The question is whether the precedents will be happy ones, and whether the consequences will be positive on balance.

Since the Nuremberg Trials after World War II, the goal of international criminal law has been to institutionalize legal accountability for wartime activities. Most international criminal tribunals have been under the thumb of the United Nations Security Council, which meant that they could not be used against that body’s five permanent veto-wielding members (China, France, Britain, Russia, and the United States). But the ICC, by design, is not beholden to the UN. Although Russia never consented to the ICC’s jurisdiction, Ukraine has, and the ICC is proceeding on that basis.

According to ICC prosecutor Karim A. A. Khan, the arrest warrant holds out the hope that Putin will be “held accountable” for his crimes against Ukrainian children, and perhaps for the many other crimes he has directed in Ukraine. Moreover, even if Putin never ends up in the dock in The Hague, the arrest warrant could, the ICC notes, “contribute to the prevention of the further commission of crimes” in Ukraine. Harold Koh, a professor at Yale Law School and a former State Department legal adviser, contends that it might also delegitimize, isolate, and weaken Putin, thereby reducing his bargaining power.

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