Russia invaded Ukraine on February 24. As the horrors of the conflict unfold before our eyes, the voice of international justice is already being heard despite the din of bombs. It may seem surprising. What role, then, for this international justice in the midst of war?
Posted yesterday at 1:00 p.m.
On March 2, 2022, the prosecutor of the International Criminal Court (ICC), Karim Khan, announced that he had opened an investigation in relation to Ukraine. As a reminder, the ICC is not interested in the criminal responsibility of States, in this specific case that of Russia or Ukraine. Rather, it seeks to determine whether individuals are responsible for war crimes or crimes against humanity committed on Ukrainian territory.
This investigation is the culmination of a preliminary examination that began at the request of Ukraine in 2014. It targets the events surrounding the Maidan uprising in 2013-2014, those related to the ongoing war in Crimea and in Eastern countries since 2015, as well as ongoing events since the Russian invasion.
In recent days, 39 ICC member states, including Canada, have also supported the opening of an investigation by directly requesting the ICC for this purpose. This support, in addition to participating in the legitimization of the Court’s actions, will be essential in facilitating the investigation process and the gathering of evidence. Mobilization is the key factor.
At this stage, however, it is too early to speak of prosecutions against specific individuals, for example against President Vladimir Putin, a hypothesis raised in the media. ICC processes take time, and the individual accountability of politicians or senior officials is complex to establish. A charge against a specific person can only arise after the investigation. If the latter can determine that the crimes committed by either party in the ongoing armed conflict constitute, inter alia, war crimes or crimes against humanity, and it is suspected that one or more persons intentionally committed or participated in these crimes, the ICC could then proceed to issue arrest warrants against these persons. This includes both the direct perpetrators and the “intellectual perpetrators” of these crimes, i.e. those who are the sponsors, the planners, or who knowingly allowed them to do so, for example political leaders or Russian or Ukrainian military.
On this subject, NGO reports indicate in particular bombings on hospitals, schools, homes, or more generally on civilian property, which would be attributable to the Russian army. These facts could be considered war crimes or crimes against humanity.
However, several obstacles stand before the ICC. As an international criminal court, the Court does not have a police service and must therefore rely on the cooperation of States, international organizations and other stakeholders to achieve its ends. Let us recall here that neither Russia nor Ukraine have acceded to the Rome Statute, the treaty establishing the ICC. Documenting and preserving evidence of crimes committed is a major challenge for all existing avenues of justice for Ukraine, including the ICC.
The biggest obstacle being that it is very likely that the Court will not benefit from the collaboration of the Russian side, in particular in the search for evidence and in the arrest and transfer of the alleged perpetrators.
The ICC is therefore not a bulwark that can prevent the advance of Russian tanks, and it will not be able to issue arrest warrants in the short term against individuals suspected of having committed the most serious international crimes. But it is significant that international justice has been activated so quickly by Ukraine, and that the ICC prosecutor has positioned himself so forcefully as an actor to be taken into account despite the challenges he faces. Even Russian President Vladimir Putin has recently included in his speeches arguments clearly inspired by international law to try to justify the invasion of Ukraine. So many illustrations that international justice sets an increasingly relevant normative framework even in the fury of war.