What a War Crimes Probe Could Mean for Russian Aggression in Ukraine

The International Criminal Court (ICC) will investigate possible war crimes in Ukraine, but experts say it is unclear whether the move could spur Russian President Vladimir Putin to defuse his government’s invasion of the country .

“Maybe, and maybe not, but I don’t think people should expect that,” said Mark Kersten, senior fellow at the University of Toronto’s Munk School of Global Affairs and Public Policy. and expert in international criminal law.

“I don’t think anyone should rightly expect that just because there’s an intervention by the International Criminal Court that will resolve the war, that will lead to peace.”

An unprecedented number of 39 member countries, including Canada, have appealed to the ICC to ask it to investigate the atrocities committed in Ukraine. ICC Prosecutor General Karim AA Khan announced on Wednesday that he would open an investigation for war crimes and crimes against humanity In the region.

The investigation will cover all aspects of the conflict, Khan wrote in a statement.

Reports indicate that Russian-led forces injured civilians and struck civilian buildingsincluding schools and hospitals. NATO officials accused Russia of using cluster munitions in their attacks on Ukraine — bombs that can kill indiscriminately and are prohibited by international law.

Russia has repeatedly denied these allegations.

A Ukrainian military service member walks near a school building destroyed by shelling in Zhytomyr, Ukraine on Friday. Russia has been accused of targeting civilian buildings, including schools and hospitals, in violation of international humanitarian law. (Viacheslav Ratynskyi/Reuters)

On Saturday, the UN High Commissioner for Human Rights confirmed a total of 1,123 civilian casualties – 364 killed and 759 injured – in Ukraine since the conflict began on February 24, but the true number is unknown and expected be higher.

Heidi Matthews, assistant professor of international criminal law at Osgoode Hall Law School in Toronto, says the ICC ruling could embolden Putin, especially in the midst of conflict.

“There is a big difference between using an international tribunal to intervene and assigning responsibility once a peace agreement has been reached or when hostilities have ended – but it is a really tense and potentially more dangerous question whatever is the impact of these institutions in the context of the ongoing war,” she said.

Existing evidence of war crimes in Ukraine: ICC

The ICC, located in The Hague, has the power to investigate reports of crimes that violate humanitarian law and hold perpetrators to account.

“He can investigate and try to document the occurrence of war crimes and then possibly issue an indictment against the perpetrators, including as far as Putin,” said Michael Bryant, a history professor at the University. Bryant of Rhode Island and author of A global history of war crimes.

“Is it likely to happen? I don’t know. It’s never happened at this level before. Russia is an extremely powerful country.”

People hold placards and a banner during an anti-war demonstration in central Brussels amid Russia’s invasion of Ukraine on Sunday. (Yves Herman/Reuters)

Neither Russia nor Ukraine are members of the ICC. Following Russia’s annexation of Crimea in 2014, the Ukrainian government issued statements giving the ICC jurisdiction to investigate war crimes on its territory since November 21, 2013. One of the statements continues to s ‘apply.

A preliminary examination beginning in 2014, led by former ICC prosecutor Fatou Bensouda, concluded in 2020 that there was enough evidence to open a formal war crimes investigation.

Matthews said Khan’s investigation was a long time coming, but what effect the ICC investigation might have on the immediate conflict is impossible to predict, she added.

“We’ve seen in the past that it can really take a while before the court issues a warrant for his arrest,” she said.

Determining whether war crimes have taken place is a simpler process than determining who is responsible for such acts, said Kersten of the University of Toronto.

“That’s going to be the trickiest part for the International Criminal Court now – to link that evidence to senior Russian military officials because they need evidence to do that,” he said. “They can’t just assume, OK, well, it’s a chain of command.

“The golden ticket would still be a document, basically, that Putin signs that says don’t hesitate to attack civilians and civilian infrastructure when you invade Ukraine.”

Investigators have already started gathering evidence on the situation in Ukraine, Khan said. In an interview on Thursday, the prosecutor told Reuters that investigators were deployed to the area.

Independent researchers, such as journalists with Bellingcat, and the Ukrainian government also tracked potential war crimes by scouring media, including photos and videos, and data posted online. Kersten says he will monitor to see if this information plays a role in the ICC’s decision-making.

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Launch time-limited tribunal, says historian

There is now calls from lawyers and academics for an ad hoc tribunal — similar to the tribunal established by the UN for the former Yugoslavia in 1993 — to investigate potential violations of humanitarian law by Russia.

That approach could see the Russian government charged with crimes of aggression — illegal acts that take place when invading a country — in addition to war crimes and crimes against humanity, Bryant said.

Because Russia and Ukraine are not signatories to the Rome Statute, the treaty that established the ICC, investigations into crimes of aggression fall outside the court’s jurisdiction.

“If you want a criminal sanction, it’s the ICC and possibly an ad hoc tribunal if they can put that together,” he said, adding that investigating crimes of aggression is “fundamental.”

Matthews wrote in an email to CBC Radio that any tribunal created to prosecute Russia would “struggle for political and legal legitimacy” and would “probably suffer from credible accusations of politicization and winner’s justice.” Establishing jurisdiction over assault charges could also be a challenge, she added.

The 1993 tribunal for the former Yugoslavia saw then Serbian President Slobodan Milosevic indicted and imprisoned for his complicity in genocide and war crimes during the Bosnian war – the first head of state in exercise to be charged with such crimes.

According to international criminal law expert Mark Kersten, investigating war crimes in Ukraine could help further isolate the Russian government – ​​and President Vladimir Putin – from the international community. (Mikhail Klimentyev/Sputnik/AFP/Getty Images)

Investigation could help ‘isolate’ Russia

That the ICC investigation is changing the course of Russia’s aggressive stance toward Ukraine, Kersten says, is part of a larger effort to isolate Russia from the international community.

Western governments have implemented sanctions that limit Russia’s ability to trade and bank internationally, and private companies have severed ties following the government’s invasion of Ukraine. .

“It’s very hard not to think that the only thing that would defuse the conflict would be for Russia to get rid of Putin, hopefully not by violent means but by prosecuting him or putting him in jail,” Kersten said.

“If the ICC can help with that…it can help isolate him to the point that he’s ultimately not the guy sitting straight in the Kremlin anymore.”


Written by Jason Vermes, with files from Reuters.

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