Key Points
- Malcolm Turnbull wants a special court for Russian war crimes.
- The international system is ill-equipped to pursue Vladimir Putin over war crimes.
- An expert says there's a 'large body of evidence' to convict Kremlin insiders, but a new court is needed.
This article contains references to sexual assault.
Handcuffed bodies scattered in Bucha. Missiles raining down on civilians in Kyiv. Reports of mass sexual assault by Russian forces.
They are part of what former Australian prime minister Malcolm Turnbull tells SBS News are "growing dossiers of shocking evidence of war crimes", committed at the behest of Russian President Vladimir Putin.
The Russian government flatly denies committing the atrocities, though the United Nations in December corroborated the murder of at least 441 Ukrainian civilians, warning the number is likely "significantly higher".
Ukrainian servicemen walk amid the destruction on a street in the town of Bucha, Ukraine Source: Getty / Anadolu Agency
Australia has joined an international movement, looking back to the 1940s for a solution.
'Sending a message'
One route to justice already appears a dead end.
The International Criminal Court can drag officials into the dock, provided their country has ratified the Rome Statute, which established the court and the international crimes it rules on - genocide, crimes against humanity, war crimes and crime of aggression. Russia withdrew from the statue in 2016 after its annexation of Crimea.
Special courts were established in the ICC during the 1990s, over atrocities committed in former Yugoslavia and Rwanda. But both required a referral from the UN's Security Council, over which Russia wields a veto.
Mr Turnbull is one of more than 100 world leaders and legal experts calling for a special tribunal, established by like-minded countries, to break that deadlock. He warned failing to act would send a dangerous message to autocrats: you can act with impunity.
Malcolm Turnbull says every tyrant knows 'their rule will come to an end'. Source: AAP
The Nuremberg courts, established in the 1940s to prosecute Nazi officials, provide an obvious model.
But while the trials secured more than 100 convictions - including of politicians, military leaders, and business people - many senior officials, including leader Adolf Hitler, died or escaped before facing justice.
The Nuremberg trials secured more than 100 convictions in the 1940s. Credit: Fred Ramage/Getty Images
"Whether Putin will ever be put in the dock is a good question. But even if he isn't, and can't be ... setting out the facts of the crimes that have been committed is very important," he said.
"This will be a sword of Damocles that hangs over Putin's head, and over the heads of other war criminals in Ukraine. They can never be entirely certain whether and when it will fall ... Every tyrant knows that, one way or another, their rule will come to an end."
Mr Turnbull believed the autocrat had since changed since they met as leaders, describing the invasion as "quite hard to understand".
"I always perceived him to be a very calculating and rational player," he said.
"[But] this is very serious, very criminal conduct. Whatever Putin's motivations, whatever his state of mind, he's responsible for them."
'Large body of evidence'
Australian National University professor of international law Donald Rothwell said the crime of aggression, applying to leaders who plan or execute a large-scale and serious attack, may be the most direct route to target the Kremlin's inner circle.
But given the complexity of establishing a separate tribunal, we are likely "some years away" from prosecutions being viable, Professor Rothwell told SBS News.
He said prosecutors would rely on the "large body" of physical evidence of Russian atrocities, and the intent of Mr Putin and his followers.
"[Are they] seeking to acquire Ukrainian territory against the will of the Ukrainian people, and in complete violation of international law?" he asked.
"The evidence at the moment is quite voluminous … There will be a lot of material in the public domain which any prosecutor could [use]."
But an international push to change that is underway.
A Department of Foreign Affairs and Trade spokesperson accepted no existing mechanism is capable of charging Russian leadership with the crime, though Australia had joined "a core group of partners" to work through a solution.
"Australia is joined by many of its like-minded partners who support holding Russia to account for its actions against Ukraine," they said.
"The full composition of the core group has not yet been made public."
The UK and the US have also made positive noises about a special tribunal, while .
And Kyiv's envoy in Australia Vasyl Myroshnychenko is clear on the need for justice.
"It's crucial from a moral point of view ... a legal point of view, and just a human point of view," he told SBS News.
"They did it because they just could ... To make the life of civilians unbearable."
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