Investigate Putin for war crimes

Pro-Russian separatists who murdered 298 people aboard Malaysian Air Flight 17 followed policy set by Russia's President Vladimir Putin and acted in consort with Russian intelligence. Under the Rome Statute that established the International Criminal Court (ICC), Putin should be investigated for war crimes and crimes against humanity.

Russian President Vladimir Putin, March 5, 2014.
Sasha Mordovets | Getty Images
Russian President Vladimir Putin, March 5, 2014.

The Kremlin's propaganda machine is working overtime to muddy the waters and deflect responsibility, but here are the facts:

* Putin conceived the plan to destabilize Ukraine in order to bring Ukraine into Russia's zone of influence.

* Russia's intelligence agency GRU closely coordinates with pro-Russian forces in Donetsk and Luhansk.

Read MorePutin bears responsibility for downing of Malaysian plane: Phillips

* The flow of arms from Russia to Ukrainian rebels has increased over the past month. It has continued since the downing of Malaysian Air 17.

* Aerial photography shows the existence of a training ground for rebels in Southwest Russia, as well Russian-run training grounds for rebels near Russia's border with Ukraine.

* Voiceprint analysis, social media, and photographs confirm that a Russian BUK-M1 missile system that downed the Malaysian Air passenger plane.

* Russian technicians provided training on BUK, which is a sophisticated ballistic missile system. Ukraine's intelligence chief maintains that a "Russian officer" pulled the trigger.

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* More than a dozen aircraft have been downed by separatists during the conflict.

* The BUK mobile launcher was spotted by local residents in Torez and Snizhne, and photographed. After shooting down the plane, the BUK system was quickly removed and brought back to Russia via the Rostov area.

* International investigators were blocked from accessing the crash-site for five days after the attack, while Russian personnel pilfered personal items and tampered with evidence.

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Putin has tried to distance himself from pro-Russian separatists, cynically blaming the Ukrainian Government for attacking the passenger plane. The Russian narrative of events lacks credibility.

In a carefully choreographed propaganda sequence worthy of the Bolshoi, Putin expressed remorse; denied responsibility; and demanded an international investigation.

The International Civil Aviation Administration is already investigating the crash. The Organization for Security and Cooperation in Europe should examine links between the Kremlin and militias in Eastern Ukraine. In addition, the ICC prosecutor should consider Putin's role.

Downing of the Malaysian Airlines plane clearly falls within the ICC's mandate. The ICC was established to investigate crimes committed by top officials. Its primary focus is "policy responsibility."

Read MoreMalaysian plane crash: images from the ground

Fatou Bensouda is the ICC prosecutor and a well-respected international law expert. She does not need permission to conduct a preliminary investigation. She can investigate any matter on her own authority. If she concludes there is sufficient evidence, she would present findings to judges of the pre-trial chamber and request a full investigation.

To be sure, Russia will do everything in its power to prevent an investigation of Vladimir Putin. The prosecutor will face many legal, technical, and political challenges. Russia has not signed the Rome Statute, so it is not a "state party" to the ICC. The incident occurred in Ukrainian territory. Ukraine's President Petro Poroshenko can, therefore, make a declaration accepting the ICC's jurisdiction and request an investigation.

Russia will try to use its veto at the UN Security Council. But there is nothing Moscow can do to stop the prosecutor from acting unilaterally during the investigatory phase.

The process is transparent. The prosecutor would announce that there is an investigation underway. If the case gets to trial, she would subpoena Russian personnel to testify. There is, however, little chance they would appear. Rebels detained by Ukrainian authorities might be more amenable.

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The Rome Statute emphatically defers to state jurisdiction. The ICC only gets involved when the concerned government is unable or unwilling to act.

Russia could stonewall the ICC by undertaking its own investigation of Putin. Of course, a Russian-led investigation would vindicate Putin — and take time. In the end, the ICC must verify that Russia's investigation was credible.

Moscow could also try to turn the tables on Poroshenko. If Ukraine is granted ICC jurisdiction over events in Ukraine, Russia could ask the prosecutor to look into crimes committed by the Ukrainian government.

President Obama has promised "consequences" for Russia's role in Ukraine. Investigating Putin would not be the first time that a legal process was used to achieve a public relations objective.

An investigation would also have deterrent value. It would change Putin's calculus in Ukraine. It may also give Putin pause before helping war criminals like his Syria's Bashar Al-Assad.

The downing of Malaysian Air Flight 17 was an act of murder. There is no place to hide from universal jurisdiction when war crimes are involved.

Commentary by David L. Phillips, director of the Program on Peace-building and Human Rights at Columbia University's Institute for the Study of Human Rights. He is a former senior adviser and foreign affairs expert to the U.S. Department of State during the administrations of Presidents Clinton, Bush and Obama. He is also author of the forthcoming book, "The Kurdish Spring: A New Map for the Middle East" (Transaction Publishers).

Read MoreLive blog: US says Russian separatists hit MH17

This article was updated to reflect that it was a BUK-M1 missile system that downed the Malaysian Air plane and that after the plane was shot down, the BUK system was quickly removed and brought back to Russia via the Rostov area.