Cross Country Checkup

What an investigation into war crimes could mean for Russian aggression in Ukraine

An unprecedented 39 member countries, including Canada, made referrals to the International Criminal Court asking it to investigate atrocities in Ukraine. But experts say it's unlikely to change anything in the short term — and some worry it could embolden Russian President Vladimir Putin.

International Criminal Court heading to Ukraine for formal probe: top prosecutor

A Ukrainian military service member walks near a school building destroyed by shelling in Zhytomyr, Ukraine, on Friday. Russia has been accused of targeting civilian buildings, including schools and hospitals, against international humanitarian law. (Viacheslav Ratynskyi/Reuters)

The International Criminal Court (ICC) will investigate possible war crimes in Ukraine, but experts say it's unclear whether the move could sway Russian President Vladimir Putin to de-escalate his government's invasion of the country.

"Maybe, and maybe not, but I don't think people should expect that," said Mark Kersten, a senior researcher at the Munk School of Global Affairs and Public Policy at the University of Toronto and an expert on international criminal law.

"I don't think anyone should rightly ever expect that just because there's an intervention by the International Criminal Court that that will solve the war, that that will lead to peace."

An unprecedented 39 member countries, including Canada, made referrals to the ICC asking it to investigate atrocities in Ukraine. The ICC's top prosecutor, Karim A.A. Khan, announced on Wednesday that he would open an investigation into war crimes and crimes against humanity in the region.

The investigation will cover all sides of the conflict, Khan wrote in a statement.

Reports indicate that Russian-led forces have harmed civilians and struck civilian buildings, including schools and hospitals. NATO officials have accused Russia of using cluster munition in their attacks on Ukraine — bombs that can kill indiscriminately and are banned under international law.

Russia has repeatedly denied the allegations.

Residents escape the town of Irpin, near Kyiv, after heavy shelling landed on the only escape route used by locals. (Carlos Barria/Reuters)

As of Saturday, the United Nations High Commissioner for Human Rights has confirmed a total of 1,123 civilian casualties — 364 killed and 759 injured — in Ukraine since the start of the conflict on Feb. 24, but the true number is unknown and expected to be higher.

Heidi Matthews, an assistant professor of international criminal law at Osgoode Hall Law School in Toronto, says the ICC's decision could embolden Putin, particularly in the midst of conflict.

"There's a big difference between using an international court to come in and assign responsibility once a peace agreement has been reached or where hostilities have ended — but it's a really fraught and potentially more dangerous question what the impact of these institutions is in the context of the ongoing war," she said.

Existing evidence of war crimes in Ukraine: ICC

The ICC, located in The Hague, has the power to investigate reports of crimes that contravene humanitarian law and hold perpetrators to account.

"It can conduct its investigations and try to document the occurrence of war crimes and then potentially issue an indictment of the perpetrators, including all the way up to Putin," said Michael Bryant, a history professor at Bryant University in Rhode Island and author of A World History of War Crimes.

"Is it likely to be done? I don't know. This has never quite happened at this level before. Russia's an extremely powerful country."

People hold placards and a banner during an anti-war protest in central Brussels amid Russia's invasion of Ukraine, on Sunday. (Yves Herman/Reuters)

Neither Russia nor Ukraine are members of the ICC. Following Russia's 2014 annexation of Crimea, the Ukrainian government issued declarations giving the ICC jurisdiction to look into war crimes in its territory dating back to Nov. 21, 2013. One of the declarations continues to apply.

A preliminary examination beginning in 2014, led by former ICC prosecutor Fatou Bensouda, found in 2020 that there was sufficient evidence to begin a formal investigation into war crimes.

Matthews said Khan's investigation is a "long time coming," but what effect the ICC's probe might have on the immediate conflict is impossible to predict, she added.

"We've seen in the past that it can really take some time for the court to issue any kind of an arrest warrant after," she said.

Determining whether war crimes took place is a simpler process than determining who is responsible for such actions, the University of Toronto's Kersten said.

"That'll be the tricky part for the International Criminal Court now — to link that evidence up to senior people in the Russian military because they need evidence to do that," he said. "They can't just assume, OK, well, this is a chain of command.

"The golden ticket item would always be a document, basically, that Putin signs that says don't hesitate to attack civilians and civilian infrastructure when you're invading Ukraine."

Investigators have already begun gathering evidence in the Ukraine situation, Khan said. In an interview on Thursday, the prosecutor told Reuters that investigators were being deployed to the region.

Independent researchers, such as journalists with Bellingcat, and the Ukrainian government have also been tracking potential war crimes by scouring media, including photos and video, and data posted online. Kersten says he'll be watching to see if that information plays a role in the ICC's decision-making.

WATCH | More than a million Ukrainians have fled since Russia's invasion began: 

Ukrainians desperate to escape to anywhere that will take them

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Duration 2:01
More than a million Ukrainians have fled their homes since Russia's invasion began, with children accounting for roughly 500,000 of those escaping. As the war rages on, Ukrainians are desperate to leave the country and head anywhere that will have them.

Launch a time-limited tribunal, says historian

There are now calls from lawyers and academics for an ad-hoc tribunal — similar to the tribunal initiated by the UN for the former Yugoslavia in 1993 — to investigate potential violations of humanitarian law by Russia.

That approach could see Russia's government charged with crimes of aggression — illegal acts that take place during the invasion of a country — in addition to war crimes and crimes against humanity, Bryant said.

Because Russia and Ukraine are not signatories of the Rome Statute, the treaty that established the ICC, investigating crimes of aggression are outside of the court's jurisdiction.

"If you want criminal punishment, it's the ICC and then possibly an ad-hoc tribunal if they can pull that together," he said, adding that investigating crimes of aggression is "fundamental."

Matthews wrote in an email to CBC Radio that any tribunal created with the goal of prosecuting Russia "would struggle for political and legal legitimacy" and "likely suffer from credible charges of politicization and victor's justice." Establishing jurisdiction over aggression charges could also be a challenge, she added.

The 1993 tribunal for the former Yugoslavia saw then-Serbian president Slobodan Milosevic indicted and imprisoned for his complicity in genocide and war crimes during the Bosnian War — the first sitting head of state to be charged with such crimes. 

International criminal law expert Mark Kersten says investigating war crimes in Ukraine could help further isolate the Russian goverment — and President Vladimir Putin — from the international community. (Mikhail Klimentyev/Sputnik/AFP/Getty Images)

Investigation could help 'isolate' Russia

Whether the ICC's investigation turns the tide on Russia's aggressive stance toward Ukraine, Kersten says it's one part of a broader effort to isolate Russia from the international community.

Western governments have implemented sanctions that limit Russia's ability to trade and bank internationally, and private companies have severed ties over the government's invasion of Ukraine.

"It's very hard not to think that the one thing that would de-escalate the conflict would be Russia getting rid of Putin, hopefully not by some violent means but by prosecuting him or putting him in jail," Kersten said.

"If the ICC can contribute to that ... it can help isolate him to the point where eventually he is not the guy sitting plumb in the Kremlin." 

Written by Jason Vermes, with files from Reuters.