Lawyer Alain Pellet recognized the “referendum” in Crimea and represented Russia at the UN court. And then he wrote a book in which called Putin a criminal. What he thinks about all this now — an interview

Alain Pellet is a French lawyer and expert in international law. Until 2022, he represented Russia at the UN International Court of Justice in cases against Ukraine and recognized the Russian "referendum" in Crimea, although he considered the annexation illegal in general. But after the full-scale invasion, which Pellet calls a violation of all norms of international law, he decided that he could no longer defend Russia. And he admitted that he saw the true face of the dictatorship. At the same time, he wrote an open letter "Ukraine is not Crimea", where he explained why he changed his position. In March 2023, Pellet, together with two colleagues — former Minister of Justice and head of the Constitutional Council of France Robert Badinter and former judge of the International Court of Justice Bruno Cotte — published the book “Vladimir Poutine, lʼaccusation”. In it, the authors prove that Russia is waging a war of aggression against Ukraine, and that Putin is an international criminal who must be tried. At the same time, France doesnʼt yet support the idea that the future Tribunal regarding Russian aggression should overcome the presidential immunity of Vladimir Putin. On the other hand, it was the Court of Appeal of Paris in June 2024 that made a sensational decision confirming the arrest warrant for another high-ranking criminal — Syrian President Bashar al-Assad. Babel correspondent and lawyer Oksana Kovalenko spoke with Alain Pellet about his book, the evolution of views and the intricacies of trials against dictators.

How did the idea of writing a book come about? And is it possible to draw parallels with Emile Zolaʼs historical article Jʼaccuse ?

In December 2022, Robert Badinter, my friend and colleague, called me at home and said we should write about Putin. We both did not believe in the success of Philip Sandsʼ initiative regarding a special tribunal against Putin. That is why we decided to write our book indicting Putin. And then I asked why not call it Jʼaccuse. He answered: "Well, because it was already done before us." So yes, you are right about the parallels.

Badinter then suggested that the book should be called "Accused Putin, Stand Up." But our third co-author, Bruno Cotte, said it would be difficult to actually see Putin at the tribunal, so we shouldnʼt practice thinking. And I suggested the current name.

Badinter wrote only the introduction, that is, everything up to page 13. I wrote two big chapters. One is called "Judge Putin", the other one is the chapter about aggression. And Cotte wrote the last chapter — "War crimes and crimes against humanity".

Can your book be called an indictment in the legal sense?

We wrote a conclusion in the form of an indictment, thatʼs right, itʼs an acte dʼaccusation. We point out that Putin can be accused of the crime of aggression as the head of state and supreme commander. Then there are the war crimes, and they are well documented. In the spring of 2023, when the book was published, there was already more than enough evidence. And the third is crimes against humanity. We deliberately did not include the crime of genocide, because specific intent is difficult to prove. Although I believe that there is genocide in Ukraine, this is my personal opinion. And since we are three authors, we decided not to touch on this issue.

And what is your position on genocide?

I believe that when you take Ukrainian children to Russia and try to turn them into Russian soldiers or something like that, it means that you are actually denying the existence of the Ukrainian nation. And I think that in this regard many of Putinʼs statements can be used against him.

You probably know that I am the chief legal adviser to Palestine. And there the situation is somewhat similar. It is difficult for Palestine to prove that Israel has genocidal intentions against the Palestinian people. But it is even more difficult for Ukraine, because the Russians were more prudent than Mr. Netanyahu.

Letʼs return to the crime of aggression. Was the illegal annexation of Crimea aggression?

You know that I was the leading lawyer of Russia against Ukraine at the UN International Court of Justice. So I believe that although the annexation of Crimea was not legal, it was not an act of aggression. I still believe that regardless of what people in Ukraine think, the majority of Ukrainian citizens in Crimea wanted to be Russian.

Despite the fact that all the time before the occupation, Russia was conducting propaganda in Crimea? Shouldnʼt occupation and illegal annexation be considered aggression?

Thatʼs a good thought. As such, the events in Crimea were not aggression, but they were preparations for aggression. If you read the judgments of the Nuremberg Tribunal, you will see that they are careful to draw a line between even the annexation of Czechoslovakia and the events that followed. And they do not recognize the annexation of Sudetenland as aggression. I believe that the situation with Crimea was somewhat similar. The Ukrainian military left Crimea, they did not fight, so it is difficult to say that it was aggression.

But we agree that one way or another the aggression took place. And in such a case, the question arises as to how and where Putin can be punished for this crime. Now there is an option of a tribunal under the umbrella of the Council of Europe. Do you believe that such a tribunal can overcome the immunity of the president?

For me, the answer is unequivocal — yes. If he is tried, he will not be able to use immunity for the crimes he committed. This is jus cogens. International tribunals do not recognize immunities.

Although there was a decision of the UN International Court of Justice [on Congo]. I do a lot of work with the International Court of Justice of the United Nations, and I was outraged by the decision in this case, because they said that the Congolese minister, who was involved in international crimes, had immunity. This is the worst decision the court could make.

But for me the issue of immunity is not the main problem. Unlike Badinter, I do not believe that the war in Ukraine is a purely European war. It is a war of aggression, and it doesnʼt matter if itʼs European or not. Therefore, ideologically and politically, I do not support the tribunal under the auspices of the Council of Europe, because it is not the whole world. Because those countries that we refer to as the Global South will say: "Look at these Europeans! This is really a war between the West and Putin." That is why I am against Europe "appropriating" the court. I am not against Ukraine making a decision, but I have some doubts that you can do it. Therefore, I would very much like the International Criminal Court to do this.

Yes, but itʼs not possible now.

Yes, for this it is necessary to change the Rome Statute, which is unlikely to happen. So one of the options that I would support is to create a tribunal by Resolution of the UN General Assembly, because it represents the entire international community. But it had to be done immediately, when the shock after the aggression was so great that the countries would support this idea.

Another stumbling block is the possibility of an absentee trial without Putinʼs participation. Some lawyers do not support this idea. But whose right is more important: the defendant to participate in court in person or the victim to justice?

Even in the absence of the accused, he or she is defended by lawyers. They are usually powerful lawyers who do their job well. And if there will be a tribunal or a court, it is important that Putin be represented by the best lawyers, strong lawyers, and not just clowns, like many of his supporters.

If you donʼt judge Putin by European tools only, you need to choose some neutral judges, but it will be difficult to find them — people are either against Russia, like me, or for.

Can we say that in Nuremberg the judges were neutral? Because then the world was also divided. And there was also the International Tribunal for Yugoslavia, created by the UN Security Council. But the Serbs say that it was an anti-Serbian tribunal. There will always be someone who disagrees.

It doesnʼt matter that they call it anti-Serbian. It was created by the highest body of the international community. It was a French project, the basis of which was mine, and the initiative belonged to Robert Badinter. Our project was chosen and it worked. In your case, there is no such option.

As for Nuremberg, that is why this court is still called the court of the victors. It was truly a court of winners and, unfortunately, Ukraine has not yet won. If Ukraine wins, there will be new Nuremberg.

The idea of a tribunal under the umbrella of the Council of Europe assumes that any country can join it. What do you think about this?

I think it would be good if the Organization of American States, African or Asian organizations could join the Council of Europe. So that it is not a purely European or purely Western solution. Also, I think respected human rights organizations including Amnesty International and Human Rights Watch could invite the best lawyers in the world who are sufficiently neutral and create a tribunal together.

France is opposed to the future tribunal on the crime of aggression being able to overcome Putinʼs immunity. On the other hand, in France itself, the appeals court recently confirmed the warrant for the arrest of Syrian President Bashar al-Assad. It turns out, the matter is not in the legal plane, but in the political one?

Yes. I try to push state bodies where I have at least a little influence, but on the other hand, you probably know, we have a terrible political situation now. Therefore, it is difficult to predict something. But I am not France, I do not support immunity for those who have committed the crime of aggression.

And I will return to your book again. It deals not only with the crime of aggression, but also with war crimes and crimes against humanity. Such cases are in the International Criminal Court, and there they are not tried without the accused. What is the way out?

The Rome Statute has article 61, paragraph 2. This is the procedure for confirming accusations. It can be held without Putinʼs participation. This is already something, an opportunity to start and a reason to say, look, there is already an accusation. And I assume that the next stage in the ICC will be just like that.

Translated from Ukrainian by Anton Semyzhenko.