Russian President Vladimir Putin attends a news conference following a summit of leaders from the guarantor states of the Astana process, designed to find a peace settlement in the Syrian conflict, in Tehran on July 19.SPUTNIK/Reuters
David Matas and Maria Reisdorf are international human rights lawyers.
The Canadian relaxation of sanctions to allow for the return of gas turbines to Russia requires a commensurate measure to emphasize Canada’s opposition to the Russian invasion of Ukraine. One such measure could and should be changing Canadian law to allow for the prosecution of Russian President Vladimir Putin, who is responsible for the Russian military and its actions.
At the International Criminal Court (ICC), Mr. Putin can be prosecuted for war crimes and crimes against humanity in Ukraine under the doctrine of “command responsibility.” Mr. Putin has effective control of the Russian forces. He has consciously disregarded information that clearly indicates that his forces have committed war crimes and crimes against humanity such as the extra-judicial killings at Bucha. The Center for Civil Liberties in Ukraine by late June had documented more than 8,000 of these crimes. Mr. Putin has failed to submit the evidence of these crimes to the competent authorities within Russia for investigation and prosecution. Those facts alone are sufficient to make him prosecutable, even without evidence that he directly ordered these crimes.
Mr. Putin’s role as President of Russia does not give him immunity at the ICC. The Rome Statute (the founding treaty of the ICC, which came into effect in 1998) states that “official capacity as a Head of State or Government … shall in no case exempt a person from criminal responsibility.”
Nor does it matter that Russia is not a party to this statute. In a 2015 declaration, the Government of Ukraine accepted for an indefinite duration the jurisdiction of the ICC over acts committed in Ukrainian territory. The declaration was made to be retrospective and pertains to acts within ICC jurisdiction dating back to Feb. 20, 2014. That declaration still gives the ICC authority to prosecute Mr. Putin for war crimes and crimes against humanity committed by Russian troops in Ukraine.
However, the ICC cannot prosecute Mr. Putin for the crime of aggression, which was defined in a 2018 amendment to the Rome Statute as “the planning, preparation, initiation or execution” of any actions that attempt to “exercise control over or to direct the political or military action” of another sovereign state.
Even though aggression is now a crime within the jurisdiction of the ICC, and even though Mr. Putin’s responsibility for that aggression is obvious, the ICC only has jurisdiction when the accused is a national of a state which has ratified the crime-of-aggression amendment. Russia is not one of those states.
But Canada could prosecute Mr. Putin for aggression in just three steps. First, Canada should sign and ratify the ICC amendment on aggression, as 41 other countries have done.
Next, we should draft an Act of Parliament regarding the crime of aggression and make it retrospective, having it reach back to before the Russian invasion in order to cover any and all acts of aggression in Ukraine.
Third, just as the Rome Statute makes clear, Canada must explicitly reject immunity for heads of state who commit crimes of aggression. There is precedent for all three of these steps, as the crime of aggression has existed in international law since at least 2018.
The Canadian Crimes Against Humanity and War Crimes Act gives Canadian courts jurisdiction over crimes committed outside of Canada if the victims are Canadian citizens or if the accused is present in Canada. It should be straightforward for the prosecution to marshal evidence of Canadian victims of Russian aggression, as many were present in Ukraine at the start of the invasion or have gone there since (the ICC Rules of Procedure and Evidence define “victims” as including any persons who have suffered harm).
In a 2002 lawsuit filed by the Democratic Republic of Congo, the International Court of Justice held that an arrest warrant issued by Belgium against the then-Congolese foreign minister for complicity in crimes against humanity violated customary international law. The DRC successfully argued that the arrest warrant prevented their foreign minister from exercising his functions effectively, as it impacted his ability to travel to other countries. The Court also ruled that the minister had immunity while he held that position.
However, the international law on immunity has since shifted because of more widespread adherence to the Rome Statute, which includes the principle that official capacity is not an exemption from criminal responsibility. And because of the COVID-19 pandemic and more widespread use of the internet for diplomatic work, foreign travel is not as important for the effective functioning of state officials as it was two decades ago. Accordingly, Mr. Putin could not argue successfully today that an arrest warrant issued by Canada, which would restrict his ability to travel, would prevent his functioning as President of Russia.
International crimes should lead to international justice. There is a legal pathway for Canada to follow which could lead to holding Mr. Putin accountable for the crime of aggression. It should be followed, especially now, to show our resolve in standing against Russia at a time when the return of the gas turbines has thrown that resolve into question.
Keep your Opinions sharp and informed. Get the Opinion newsletter. Sign up today.