Interview with Professor Miriam Cohen, holder of the Canada Research Chair in Human Rights and International Restorative Justice and Associate Professor at the Faculty of Law of the University of Montreal.
The Russian invasion of all of Ukraine (after seizing Crimea in 2014) began just over a year ago. The invasion of Iraq, launched by the United States and the United Kingdom, began just twenty years ago, on March 20, 2003. How can they be compared from the point of view of the laws of war?
We must first ask ourselves about the legitimacy of war in the light of international law. A fundamental principle of international law prohibits the use of force. A State cannot use force against another State, with exceptions. The first exception requires authorization by the UN Security Council. Another exception provided for in the United Nations Charter concerns self-defence. Neither Russia nor the United States and the United Kingdom have received authorization from the Security Council to use force against Ukraine and against Iraq. It has therefore been said and written many times that the war in Iraq was a war contrary to international law, or illegal, as it is sometimes said. The Security Council has not authorized armed intervention in this country. Russia has also used force against Ukraine, again without authorization from the Security Council, in contravention of the fundamental principle of international law.
The International Criminal Court (ICC) does it have jurisdiction to judge individualsowed for the unlawful use of force?
When the Statute of the International Criminal Court was adopted in 1998, member states did not agree on the definition of the crime of aggression. The founding statute was adopted without a definition of this crime. Years later, in 2010, a consensus was reached, but the amendment concerning the crime of aggression has not yet been ratified by all member states and obviously does not apply to non-member states of the ICC. The Court therefore has no jurisdiction to prosecute the senior leaders of Russia, which is not a Member State, for the crime of aggression against Ukraine. There are also discussions now around the relevance of creating a new court for the crime of aggression. In the context of the war in Ukraine, the ICC only has jurisdiction to try individuals (and not States) for war crimes, crimes against humanity or crimes of genocide. It should also be specified that these last two crimes can also be committed in the absence of a war.
How then do we proceed to judge war crimes?
War crimes are violations of international humanitarian law of particular gravity that can lead to the prosecution of those responsible for these crimes. National military tribunals may, in certain circumstances, take over the prosecution of these crimes. We see it in Ukraine, where several trials have taken place or are continuing for alleged war crimes against Russian soldiers, for example. A classic case of war crime will, for example, be organized around the murder of civilians who are not taking part in the armed conflict, or even the looting of a city.
National military tribunals may, in certain circumstances, take over the prosecution of these crimes.
When and how does the International Criminal Court (ICC) intervene?
We then move from the national level to the international level. However, the International Criminal Court does not have jurisdiction over all conflicts. It has jurisdiction over international crimes committed on the territory of the 123 member states or after a referral from the UN Security Council.
The ICC announced on Friday that it was issuing an arrest warrant against the Russian president accused of war crimes, targeting in particular his alleged role in the abduction of Ukrainian children in areas under his control. So why isn’t what is good (or actually bad…) for Vladimir Putin for US President George W. Bush or British Prime Minister Tony Blair, responsible for the very destructive conflict in Iraq?
The United States is not a member of the ICC, nor is Iraq. The Court is limited in what it can do with respect to a country that is not a member. In addition, there was no referral from the UN Security Council. Ukraine and Russia are not ICC member states either. In this case, however, Ukraine has made two declarations, under the Statute of the Court, to authorize its intervention. The prosecutor of the Criminal Court therefore intervened very early last year to launch investigations in Ukraine and collect evidence there, now considered sufficient to issue an arrest warrant against Vladimir Putin and [la commissaire présidentielle au droit des enfants en Russie] Maria Alekseyevna Lvova-Belova for war crimes. This decision marks a beautiful day for justice.
The UK has signed and ratified the ICC Statute. A preliminary examination in the context of the Iraqi conflict had been opened; proceedings have been initiated against ex-Prime Minister Tony Blair at the ICC. Where are these steps?
There are different procedural steps at the ICC. The first is a preliminary examination which verifies whether there are grounds for continuing with a more elaborate investigation, the subject of the second stage. If the evidence proves to be sufficient, the Court issues arrest warrants which eventually lead to the trial stage. The preliminary examination triggered in relation to the Iraq conflict had ended in 2006. New elements reopened the examination in 2014, which focused mainly on acts of torture, killings and other ill-treatment allegedly committed by British nationals during the occupation of Iraq. The review was ultimately closed by investigators in 2020 without recommending a more elaborate investigation.
Hence the impression of an unfair situation of double standards. African countries have also left the ICC, accusing it of attacking the weak and defeated more, and never Westerners. Is the reputation of the ICC tarnished?
Of course, nationals of all States do not find themselves before the ICC. Let us return to the case of the United States. The country is not a member state and also has a right of veto at the United Nations Security Council, which blocks the possibility of referral to the tribunal (for the war in Iraq, for example). We do indeed hear that the procedures were much faster for the war in Ukraine than in other conflicts, where the Court nevertheless has full jurisdiction. It is a relevant argument. However, it should be remembered that many states support investigations in Ukraine, help it accumulate evidence of war crimes and maintain the capacity of its justice system. It must be ensured that all investigations and activities of the Court are supported.