Here’s how Canada will help investigate alleged Russian war crimes in Ukraine

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This article was published 29/03/2022 (905 days ago), so information in it may no longer be current.

Canada will be sending 10 “highly trained investigators” from the RCMP to the International Criminal Court to help gather evidence of possible Russian war crimes in Ukraine.

The ICC in The Hague is an independent judicial body that investigates and tries individuals charged with the most heinous crimes of concern to the international community — including war crimes, crimes against humanity, genocide and the crime of aggression.

The court’s chief prosecutor has said there is reason to believe Russia has committed both war crimes and crimes against humanity in Ukraine.

The RCMP already has three investigators deployed to the ICC and will be more than tripling that contingent following a request from the court to help with the Ukraine investigation.

Here’s how Canada could help the ICC hold Russia accountable:

How can the ICC investigate potential Russian crimes in Ukraine?

The ICC only has jurisdiction over crimes committed by nationals of — or in the territory of — states that have signed onto and ratified the court’s founding treaty (called the Rome Statute), or temporarily accepted the jurisdiction of the court. The court can also be referred cases by the United Nations Security Council.

Last month, the court’s chief prosecutor, Karim Khan, announced he was opening an investigation into the situation in Ukraine, after receiving referrals from 39 states that accept the court’s jurisdiction, including Canada. The court has been investigating war crimes and crimes against humanity in Ukraine since 2014.

Neither Russia nor Ukraine is currently a party to the Rome Statute. However, Ukraine has twice accepted the court’s jurisdiction, once when Russia invaded Crimea in 2014, and a second time on an “open-ended basis.” That means the court can investigate potential crimes committed on Ukrainian territory.

What are war crimes and crimes against humanity and how can you prove they have been committed?

War crimes are serious breaches of the Geneva Conventions, which are international treaties that regulate armed conflict. Breaches can include the indiscriminate killing of civilians, or the intentional targeting of hospitals — both of which the Russian military has been accused of. Crimes against humanity are widespread or systemic attacks committed against a civilian population.

While it can be relatively easy to prove a war crime has taken place, it’s much harder to link that crime to the individual responsible for it, said Fannie Lafontaine, professor of law at Université Laval and Canada research chair in international criminal Justice and Human Rights.

Take the example of a hospital bombing: Investigators can use a mix of digital evidence (like photos, videos and messages), ballistic evidence from the crime scene, and witness statements to prove that it happened, she said.

But holding someone responsible — say, the pilot who dropped the bomb or the person who ordered it — requires scrutinizing the chain of command or intercepting communications.

How can Canada and the other countries help?

Canada currently has three Mounties in The Hague and will be adding seven more to help with the Ukraine investigation, Public Safety Minister Marco Mendicino’s office confirmed to the Star.

The additional officers Canada will be sending are “highly trained investigators with extensive experience and expertise in the field of war crimes and crimes against humanity,” said Alexander Cohen, director of communications for Mendicino.

While we don’t know specifically who the RCMP is sending, Lafontaine said we can expect they are officers who might have previous experience working on war crimes investigations, like the Rwandan genocide and the Yugoslav Wars.

Gathering evidence for this purpose requires a specific level of expertise, she said, because the evidence needs to be admissible in court.

The level of international support, both through money and resources, for the ICC’s investigation in Ukraine is “unprecedented,” Lafontaine said. Dozens of states, including the United Kingdom and France, have also offered help.

In particular, Canada and other countries may be able to help by gathering digital evidence. The war in Ukraine has a “tremendous amount of digital footprints” on social media, Lafontaine said, but it takes time to scrutinize this type of evidence and link it to specific people.

Beyond its officers in The Hague, RCMP Commissioner Brenda Lucki said in a statement that the force will also investigate the Russian invasion of Ukraine from Canada, in partnership with Immigration, Refugees and Citizenship Canada, Canada Border Services Agency and Justice Canada.

What happens next?

After all of the evidence is gathered, the ICC will choose a “handful” of people to prosecute, Lafontaine said.

Since the ICC is not capable of prosecuting hundreds of people, it will likely choose to pursue “the most symbolic war crimes,” she said. Other international and domestic courts can also prosecute those involved in the Russian invasion.

Next, the ICC will issue arrest warrants for individuals the court has identified as responsible — but getting these people to stand trial at The Hague won’t be easy.

Since Russia has not accepted the jurisdiction of the court, in order to face justice, President Vladimir Putin and other military officials would have to surrender, travel to a country that is a state party to the court or be extradited by Russia.