Canada’s push for Russian accountability at the ICC faces an uphill battle

As Canada joins the chorus of support for the International Criminal Court's investigation of possible war crimes committed by Russia in its invasion of Ukraine, the probe is unlikely to deter Russian action with little means for the world bench to hold Moscow to account. Along with 38 other member states of the International Criminal Court (ICC), Foreign Affairs Minister Mélanie Joly (Ahuntsic-Cartierville, Que.) announced on March 1 that Canada is referring the situation in Ukraine to the ICC “as a result of numerous allegations of the commission of serious international crimes in Ukraine by Russian forces, including war crimes and crimes against humanity.” While in Germany, Prime Minister Justin Trudeau (Papineau, Que.) said that Russian President Vladimir Putin will face accountability from the ICC for the “war crimes he’s committed in Ukraine,” according to a Toronto Star report. Moscow received widespread condemnation after three died in the Russian bombing of a maternity hospital. Preliminary reports indicate that around 17 were injured in the bombing. U.S. Secretary of State Antony Blinken told CNN on March 6 that the U.S. has seen “credible reports of deliberate attacks on civilians, which would constitute a war crime.” Global Affairs spokesperson Jason Kung didn’t directly address if the department possesses evidence of war crimes being committed by Russia. “Alongside the international community, Canada is watching Russia’s unrelenting neglect and violation of Ukraine’s sovereignty, territorial integrity and independence, as well as blatant disregard for international law,” he said in a statement. “Canada has and continues to work in coordination with like-minded countries, including information sharing, to hold Russia accountable for its egregious actions.” Following the petitions of 39 international court member states, ICC Prosecutor Karim A.A. Khan announced on March 2 he would immediately open an investigation, which will look into the situation in Ukraine since Nov. 21, 2013. Khan said the collection of evidence has begun. He added that his office had already “found a reasonable basis to believe crimes within the jurisdiction of the court had been committed, and had identified potential cases that would be admissible.” Prime Minister Justin Trudeau says that Russian President Vladimir Putin will have to answer for the 'war crimes he’s committed in Ukraine.' The Hill Times photograph by Andrew Meade Western University law professor Valerie Oosterveld said the ICC prosecutor will face three challenges in the case: budgetary constraints, preserving evidence during an ongoing conflict, and proving linkages between the crimes that have happened on the ground to the highest levels of the chain of command in Russia. “Normally in a case involving war crimes and crimes against humanity, a prosecutor will rely on evidence such as news reports, speeches and statements, insider witnesses and intercepts or orders in order to prove those linkages between the highest levels and the crimes on the ground, and we don’t know what the prosecutor has access to in terms of that type of evidence ,” said Oosterveld, who previously was a member of the legal affairs bureau in the then- Department of Foreign Affairs and International Trade and provided guidance on accountability for war crimes, crimes against humanity, and genocide. She said Canada’s referral of the situation to the ICC is likely related to its historic legal and political support for the court. “I think the main reason behind Canada’s referral is to give legal and political support to save time in the launching of the investigation,” she said. As the ICC deals with funding challenges, Oosterveld said there could be a role for Canada to assist. On Feb. 28, Khan called for additional budgetary supports for the ICC, including voluntary contributions and the loan of personnel. “The importance and urgency of our mission is too serious to be held hostage to lack of means,” he said. “Canada has some really excellent investigators and prosecutors with experience in international criminal law that it may be able to provide,” Oosterveld said. In a March 7 joint statement with U.K. Prime Minister Boris Johnson and Dutch Prime Minister Mark Rutte, Trudeau said they “stand ready to provide the necessary cooperation and assistance to support the ICC prosecutor in its work.” Referral unlikely to deter Russian aggression, says prof Despite the referral to the ICC, Oosterveld said it is unlikely to deter Russian aggression in the short term. “At this point in time, it doesn’t look like very much of anything will deter President Putin. With the war crimes that have already been committed in Ukraine by Russian forces, it is looking like the senior commanders are also not feeling deterred,” she said. “However, that can change over time. They are likely well aware that their actions are war crimes under the Geneva Convention and there can be a longer-term deterrent effect depending on how things unfold within Russia in terms of how long support for President Putin will continue at the highest levels.” She said that arrest warrants issued by the ICC don’t have expiry dates. “Justice doesn’t sleep and that can help provide long term deterrence.” While the investigation at the ICC for possible war crimes has started, a separate application at the International Court of Justice (ICJ) was commenced by Ukraine to stop Russia’s invasion. Ukraine is petitioning the UN court to order a stop to the conflict on the grounds that Moscow is wrongly justifying its offensive by asserting a genocide is taking place in eastern Ukraine. Kung said Canada “welcomes” Ukraine’s ICJ application. “The most immediate need is for the court to urgently address Ukraine’s request for provisional measures,” he said. Anti-war protestors are pictured outside the Russian Embassy on Feb. 27. The Hill Times photograph by Sam Garcia John Packer, the University of Ottawa’s Human Rights Research and Education Centre director, said the Canadian government should be sending a stronger signal of support for the ICJ application. He said the Canadian government’s reaction to the ICJ case has been “modest.” “They should be weighing in,” he said. “This is the urgent thing going on, I would hope you more than welcome it.” Packer said it will be difficult for an ICC arrest warrant to be fulfilled as they rely on domestic authority, which would not move against a sitting leader. He said the current situation requires urgency. “If the urgency—which I think it should be—is to stop the escalation and the actual violence then I think is far removed from ,” he said. “I’m pretty sure that no one in Moscow is even paying much attention to this.” Investigating the case against war crimes to find out who ordered the criminal act must be done to a very high standard, Packer said, noting that it will be difficult to link Putin to any war crime being committed in Ukraine. Instead, the Russian president could blame any war crimes on the actions of generals. He said the idea of an ICC probe will sound “appealing” to a domestic audience, despite its limited chances to bring Russia to account for its actions. “In the short term, is trying to send a message and it makes it look like they’re acting—this is a bit performative,” he said, “knowing that there’s virtually no chance that this will happen.” International criminal justice expert Mark Kersten, a researcher at the University of Toronto’s Munk School of Global Affairs, said the issuing of an arrest warrant by the ICC on an individual has a “significant effect” even if that individual isn’t arrested. “It attaches the factual basis of war crimes and crimes against humanity on to a particular individual,” he said. “That really signals something to the world," he said, and more importantly, it attaches "legal, factual, and forensic claims to a person about their role in war crimes and crimes against humanity," and "not wishy-washy allegations or emotional claims to a person." Even with long-time outstanding arrest warrants, Kersten said, eventually there can be movement. “If the ICC issues an arrest warrant for Putin or Lavrov or whoever it is, just because you don’t know if that will translate into an arrest and a trial and a conviction, I can’t really get to the point logically that you should give up on it immediately, or it’s not worth trying,” he said. nmoss@hilltimes.com The Hill Times

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Canada’s push for Russian accountability at the ICC faces an uphill battle

As allegations of Russian war crimes mount, questions loom if an International Criminal Court case can help deter Moscow's aggression.

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