Posted at 5:00 a.m.
What international justice bodies are looking at the current situation?
On February 26, Ukraine filed a petition with the International Court of Justice (ICJ) for Russia to stop the invasion of its territory. On February 28, the Attorney General of the International Criminal Court (ICC), Karim Khan, requested authorization to open an investigation to shed light on allegations of war crimes and crimes against humanity on Ukrainian territory. . Both entities are headquartered in The Hague, the Netherlands, but are independent of each other.
What are the fundamental differences?
“The ICJ is the main judicial organ of the UN,” recalls Miriam Cohen, associate professor at the Faculty of Law of the University of Montreal and holder of the Canada Research Chair in International Justice and Fundamental Rights. “It began its activities in 1946 to settle, in accordance with international law, disputes between States. On the other hand, the ICC, created in 1998, “is interested in the criminal responsibility of individuals”, indicates Pascal Paradis, director general of Avocats sans frontières for Canada. “The prosecutor is trying to determine whether people are guilty of war crimes and crimes against humanity,” he continues.
Does this mean that the ICC could recognize Vladimir Putin as a war criminal?
“Everyone wonders,” says Mr. Paradis. The answer is: maybe. But, as in a part that resembles our criminal law, it will be necessary to prove that he committed acts or that he ordered them with criminal intent and that these crimes are war crimes or crimes against the humanity. So expect it to be long. Especially since the proof is probably in Russian and Ukrainian territories that are not very popular these days.
Where is the case at the ICJ?
On Monday morning, the ICJ opened a hearing to hear Ukraine’s request. And to possibly give Russia a right of reply. However, no Russian delegation showed up. Presiding Judge Joan Donoghue lamented the situation. “As Russia did not participate in these oral proceedings, the public hearing ended today and the Court is ready to begin its deliberations on the request for the indication of provisional measures submitted by Ukraine, without yet have to look at the bottom line,” says Miriam Cohen.
We know that neither Russia nor Ukraine have joined the ICC, as these states have not ratified what is called the Rome Statute. How is it that Ukraine is bringing its case before this body?
An article (12.3) of the Rome Statute specifies that a non-party (non-member) state can recognize the ad hoc jurisdiction of the ICC within a specific period without becoming a member state, says Miriam Cohen. Ukraine used this paragraph for events between 2013 and 2015, including the war in Crimea.
In either of the two courts, the procedures are long to lead to a conviction. What are they for then?
“It does not stop conflicts or have an immediate impact on the ground,” says Pascal Paradis. But these days, just about every state in the world cares about their international reputation, their ability to attract foreign investment, sign deals with other states, and be gamers by the rules. In the medium and long term, negative decisions by these tribunals can have a significant impact on the ability of states to continue to conduct their diplomatic and economic activities in the same way as others. »
Canada is one of 39 countries to have referred the situation in Ukraine to the ICC. What more can he do?
“Like other countries in the world, it can much better support the ICC, an unloved body in recent years, continues Mr. Paradis. It is sorely lacking in resources and political support. What Canada has done in the past few days must continue. It can also be a more exemplary player in the implementation of universal jurisdiction on its own territory. In other words, the State must apply on its territory what the ICC does internationally. Like investigating and possibly arresting and convicting people suspected of war crimes. “Canada has already been a forerunner in this area,” says Mr. Paradis. But today it is no longer. »