International | War crimes and war crime

The bloody furrow left behind by the Russian army will no doubt mark people’s minds for a long time. So many atrocities that justice will have to qualify, judge, condemn – war crimes, crimes against humanity, genocide.

Marina Sharpe
Assistant professor in international law at the Royal Military College Saint-Jean, member of the Geopolitics Observatory, Raoul-Dandurand Chair

In fact, to date, 41 countries have asked the International Criminal Court (ICC) to investigate this barbarism, leading to the opening of an investigation by the prosecutor last month. However, while the ICC can investigate crimes committed during the conflict, it has no jurisdiction to rule on the war itself. And yet, it is Russia’s crime of “aggression” (and the ability to sanction it, or not) that could irreparably redefine the international order.

Immediately after the First World War, states sought to limit and frame war, promising through the League of Nations to respect everyone’s sovereignty and territorial integrity, even outlawing it in 1928 with the Kellogg’s Pact. – Briand. Moreover, after the Second World War, “crimes against peace” were prosecuted by the Nuremberg tribunal, which wrote of them that they were “the supreme international crime, differing from other war crimes only in fact that it contains them all”.

But it was really in 1945 with the creation of the United Nations (UN) that the ban on war was enshrined. Indeed, the Charter of the United Nations prohibits the use of force by one member state against another, except in cases of self-defence or with the authorization of the Security Council. The latter, who has primary responsibility for peace and security, can authorize the use of force with the aim of maintaining or restoring peace.

The law has theoretically progressed in recent times: since 2018, key leaders of a state can be held personally responsible for waging aggressive war and brought to justice by the ICC.

Thus, a violation of the prohibition of the use of force can constitute a crime of aggression… except for one detail: the jurisdiction of the ICC in matters of aggression requires the consent of the aggressor State and of the victim state, or a referral by the Security Council.

This is where the shoe pinches: for lack of consent from Russia, which has not given it and because it is a permanent member of the Security Council, any desire to refer to the ICC will necessarily be ruled out. Therefore, the crimes committed during this war could one day give rise to a decision by the ICC, but it will take a lot of legal creativity and political will to be able to rule on the aggression itself.

Justice for the assault has many dimensions. Two of them are particularly important: individual responsibility to punish perpetrators and reform of the global peace and security architecture to prevent aggressive wars.

Individual responsibility

The decision to use force against another State is taken at the highest level. Therefore, it is conceivable to imagine that Vladimir Putin and his henchmen could be prosecuted on the basis of universal jurisdiction – indeed, certain States with laws on universal jurisdiction give their national courts the power to prosecute certain serious crimes. committed by foreign nationals abroad. As such, last month a group of eminent jurists and scholars issued a joint statement¹ calling on states to establish a “Special Tribunal for the Suppression of the Crime of Aggression against Ukraine” whose authority would be based on common universal jurisdiction and general international law, similar to Nuremberg.

This proposal, which was of course approved by the Ukrainian Foreign Minister, and which undeniably constitutes the embryo of an essential debate, could come up against several pitfalls. On the one hand, it is difficult, if not impossible, to prosecute sitting heads of state and other senior officials in foreign or even international courts. On the other, there is the question of selectivity: why target this aggressive war more than others? Just think of the invasion of Iraq in 2003, which was not authorized by the Security Council.

UN Reform

Justice is not just about punishing wrongdoers. It is also about preventing the occurrence of any future damage – in this case, future wars. If, since 1945, international peace and security have been guaranteed by the Security Council, whose five permanent members have the monopoly on responding to threats and breaches of the peace, President Volodymyr Zelensky, during his speech before the Council of security, argued that the Russian invasion set a dangerous precedent.

Indeed, the foundations of the international system are today shaken by Russia: if Russia retains its seat in the Council, the world will no longer be able to rely on international law to ensure security, there will only be weapons left… and the ambitions of other autocrats emboldened by Moscow’s political victory.

Shortly after Zelensky’s speech, the General Assembly suspended Russia from the Human Rights Council. But it remains impossible to exclude Russia from the Security Council or the UN in general. All Charter mechanisms for expelling a member state, even amending the Charter itself, require the consent of each permanent member of the Security Council.

And while discussions about reforming the “P5” system have been going on for decades, they are no longer just academic. We also took an important step in strengthening the role of the General Assembly at the beginning of the week. Liechtenstein, on behalf of 38 other States, tabled a resolution that would make it mandatory to hold a debate in the Assembly on each veto affixed by a permanent member of the Council, clear proof of a need for reform of UN institutions . Because in the face of the barbarity of the conflict in Ukraine, it is essential that justice be done. And not only for crimes committed during the war. It is necessary to debate the illegality of war itself and this absurdity where the aggressor state is also the one that is supposed to guarantee peace.

Closer than you think

Security in Quebec, in Canada and around the world is ensured by the UN Security Council. The authorization of its five permanent members is required before a country or coalition can respond to a threat to international peace. However, a State that waged an aggressive war should also guarantee international peace, undermine security and pose threats to all countries, including ours.