Subcommittee on International Human Rights Committee on May 3rd, 2022

[The Vice-Chair, Conservative, Michael Cooper]

I call the meeting to order.

Welcome to meeting number nine of the Subcommittee on International Human Rights. Today we will be continuing our study on human rights in Ukraine and Russia.

I have a few comments to make before I introduce the witnesses. I don't think I need to remind everyone that the COVID directives issued by the Board of Internal Economy remain in effect. Further, all participants should know that translation is available through the globe icon at the bottom of their screen. When there is 30 seconds left in your speaking time, I'll give you a warning.

I'd like to welcome all of the witnesses who have taken the time to join us today, both in person and virtually.

We have four witnesses on this panel. We have Chile Eboe-Osuji, professor at the Lincoln Alexander school of law at Ryerson University and at the University of Windsor. We also have, in person, Paul Robinson, a professor at the University of Ottawa. Appearing virtually is James K. Stewart, retired deputy prosecutor of the International Criminal Court. Finally, we have, in person, Eugene Czolij, NGO Ukraine-2050 president and honorary consul of Ukraine in Montreal.

Welcome.

I will now open the floor to our witnesses for their five-minute statements. I will begin with those of you who are joining us virtually, followed by those of you who are with us in the committee room.

With that, I will turn it over to Mr. Eboe-Osuji to begin.

[Dr. Chile Eboe-Osuji, Professor, Lincoln Alexander School of Law, Ryerson University, University of Windsor, As an Individual]

Thank you very much, member of Parliament.

My name is Chile Eboe-Osuji, and I was the president of the International Criminal Court from 2018 to 2021. I was there for nine years, including the period when I was a judge of the court. Now I teach at the Lincoln Alexander school of law of Toronto Metropolitan University, formerly known as Ryerson.

For my presentation today, I'm going to tell you where I'm going—that would be point B—and then I'll begin from point A. That point B is to say that we've come to a point in international law, and this war in Ukraine has gotten us to that point, where there are some critical adjustments that must be made to that law to deter this kind of behaviour in the future. There are two adjustments I'm proposing.

We have to go back to the Rome Statute, as there is a necessary amendment that needs to be made there because of a certain yawning gap in that statute on the crime of aggression. I'll return to that in a minute.

The second thing I propose we do is this. It is now time to adopt a treaty, as it were, that recognizes the right to peace as an actionable right as opposed to just living it as a mere declaration of a right to peace. If we have an actionable right, it will make wars of aggression less likely in the future.

Let me tell you where I'm going from point A to point B. Point A is history. It has always been the case that the big developments in international law have always occurred after an armed conflict, right from the very beginning of international law itself. You'll find the Thirty Years War and the Eighty Years War that occurred in Europe concluded with that thing some of you will have heard of, the treaty of Westphalia. To international relations experts and political scientists, the treaty of Westphalia of 1648 is credited with being basically the starting point for international law as we recognize it today. It resulted from a war.

We move from there to 1856, the first time that there was any sort of thing in writing about how to regulate war in a humanitarian way. That was something called the Paris Declaration. Again, it resulted from an armed conflict, from the war in Ukraine, in a sense, the Crimean War of 1859 or so. The Lieber Code—again, lots of international lawyers know of that—resulted again from the American Civil War, and that code has informed the development of humanitarian law in very major ways. We move forward to 1864 and the first Geneva Convention. We can keep going, but I have only five minutes.

Let's move it forward then to 1919, the First World War. Everyone recognizes that, and that gave us the League of Nations. For the first time, it was thought that it was a good idea to have a standing international organization that would modulate peace in the world. Skip forward again to 1945, at the end of the Second World War. Again, lots of things happened. The UN, as we know it, resulted from that. The convention against genocide resulted from that. The idea of the recognition of human rights law that we know resulted from that war, as was the idea of responsibility in international law on human beings.

[The Vice-Chair, Conservative, Michael Cooper]

You have one minute.

[Dr. Chile Eboe-Osuji]

The point is now for us to develop this right to peace, another juncture, and that is something that victims of wars of aggression can use later on in the civil courts of free countries in the world to sue those who launch wars of aggression and their accomplices in those wars. It is time to do that.

I will stop it there and then take questions. Thank you.

[The Vice-Chair, Conservative, Michael Cooper]

Thank you for that.

I will now turn to Mr. Stewart.

You have five minutes.

[James Stewart, As an Individual]

Thank you, Mr. Chair.

Thank you for this invitation to appear on the panel.

Two months ago my nine-year term of office as deputy prosecutor at the International Criminal Court came to a close, so I am speaking as a private individual, not for the office of the prosecutor of the ICC.

I will, however, approach the interest the subcommittee has in the status of human rights in Ukraine from the perspective of the criminal investigation and prosecution of human rights violations that are so grave as to constitute war crimes or crimes against humanity, even genocide.

In doing so I hope to place the Rome Statute, the founding treaty of the ICC, within the overall architecture of human rights protection, with particular reference to the current situation in Ukraine.

I think of the ICC as being on the cutting edge of human rights protection because its operations are meant to hold the perpetrators of atrocity crimes to account and help deter such crimes in future.

The subcommittee knows that the ICC's jurisdiction is complementary to that of states parties to the Rome Statute because the states parties have assumed primary responsibility to repress war crimes, crimes against humanity and genocide. I agree with Chile about the need to get the crime of aggression properly set up and installed within the statute.

Where states do not act, either because of lack of capacity or lack of political will, the ICC was set up as the fail-safe mechanism designed to intervene. Once the ICC is engaged, states parties are then obliged by the statute to support its investigations and prosecutions. Non-states parties are also free to support ICC operations.

The driver of ICC operations is the office of the prosecutor—I'll call it the OTP—which has the independent mandate to conduct impartial criminal investigations and prosecutions of Rome Statute crimes. Victims of Rome Statute crimes also have a role to play in ICC judicial proceedings. They are, moreover, eligible for reparations where crimes are successfully prosecuted. Such features of the Rome Statute system of international criminal justice enhance the protection of human rights.

Ukraine, which is not yet a state party, accepted the ICC's jurisdiction in 2014 and again in 2015 in the wake of the Maidan violence, the Russian annexation of Crimea and the armed conflict that broke out in the Donbass.

In 2020, near the end of her mandate, Fatou Bensouda, the previous ICC prosecutor, announced that her preliminary examination of the situation in Ukraine was completed and that all the criteria to justify opening an investigation were met, but for reasons relating primarily to overstretched resources, she took no further active steps, leaving it to her successor to set priorities.

The new prosecutor, Karim Khan, QC, took office in June 2021. The Russian invasion of Ukraine that began on February 24 of this year pushed Ukraine to the fore as allegations of war crimes came in. As the subcommittee knows, over 40 states parties, including Canada, referred the situation in Ukraine to the prosecutor, empowering him, under the statute, to open an investigation directly, which he did.

The OTP is now investigating allegations of war crimes in Ukraine in real time. States party support for this endeavour, I understand, has been forthcoming in the commitment to provide both financial resources and seconded personnel, and in this Canada has been playing a key role.

With respect to this support, there is however an important point to underscore. The prosecutor, as I mentioned, has an independent mandate to investigate crimes under the Rome Statute, so it's vital that he be able to apply resources, both financial and human, as he sees fit. States parties cannot earmark resources for the Ukraine investigation, and they don't have to in order to support the court effectively.

For example, the personnel seconded to the OTP can be used in other investigations that the OTP is conducting. This frees up OTP resources for Ukraine and permits greater flexibility in the deployment of personnel. Canada understands this very well.

Ukraine, of course, remains a priority investigation. In the past, when I was with the OTP we outsourced work requiring expertise we lacked, but kept it under our direction. Therefore, in the current situation in Ukraine, it's no surprise that a team of Dutch forensic experts is going to Ukraine to assist OTP investigations. This sort of support is coordinated with the OTP and—

[The Vice-Chair, Conservative, Michael Cooper]

Mr. Stewart, please wrap it up in 15 seconds, if you can.

[James Stewart]

—strikes me as perfectly legitimate and necessary.

To conclude, the Ukraine situation calls for an innovative and imaginative approach to international criminal investigations, with planning and coordination among parties, and broad-based means.

Thank you.

[The Vice-Chair, Conservative, Michael Cooper]

Thank you, Mr. Stewart.

I will now turn it over to Professor Robinson.

Please make your opening five-minute statement.

[Professor Paul Robinson, Professor, University of Ottawa, As an Individual]

Good evening.

I will speak as an academic who studies Russia and as a former army officer who has published on the topic of just war theory.

Let me highlight the difficulty of holding perpetrators to account in situations of civil conflict and war. Yesterday was the eighth anniversary of horrific events in the Ukrainian city of Odessa, when a building sheltering protesters who were demonstrating against the Maidan revolution was set on fire, resulting in the death of 42 people.

Nobody has ever been held to account for what happened, leading to this comment from the United Nations human rights office:

...the investigations into the violence have been affected by systemic institutional deficiencies and characterized by procedural irregularities, which appear to indicate an unwillingness to genuinely investigate and prosecute those responsible.

Parties to conflict are consistently unwilling to deal with misdeeds committed by their own side. This is likely to be the case again in the current war in Ukraine, in which both sides have accused each other of war crimes. Neither country has a good record of accountability in this area. The allegations of war crimes deserve thorough investigation, including those against Ukraine, not all of which can be dismissed as disinformation.

But I will focus on Russia, as that is my area of expertise.

Contrary to what many think, the Russian state is quite legalistic and most of the time sticks to the letter of the law, both domestically and internationally. However, when really important interests are at stake, Russia, like many other states, doesn’t let the law prevent it from doing what it wants. Even then, though, it matters to the Russian authorities to be seen to be obeying legal rules, to which end they often go out of their way to frame their actions as legal, even when they are not.

The Russian state has on occasion held its troops accountable for misdeeds in war, such as in Chechnya in the early 2000s, but generally only when the misdeeds in question could not be ignored. Given that independent media have now largely been eliminated in Russia, this probably no longer applies.

While the Russian state overall has a good record of accepting judgments by international courts, including the European Court of Human Rights, its record is less good when it comes specifically to matters that it believes concern state security. Furthermore, an amendment to the Russian constitution last year states that decisions of international bodies shall not be enforced if they “contradict the Constitution of the Russian Federation”, a category that I imagine might be interpreted quite broadly according to the wishes of the political authorities.

In the current atmosphere, I think it is most unlikely that the Russian authorities will admit to any wrongdoing in Ukraine, let alone take any action to prosecute it or to hand over suspects to any international court. I would not expect that any form of international pressure will force Russia to comply with western demands. The invasion of Ukraine has made it clear that the Russian authorities no longer care what we think.

In short, options are limited. In any case, prosecuting human rights violations after the fact is less important than preventing them from happening in the first place. However awful war crimes may be, they account for a tiny fraction of the human suffering experienced in war. The war in Ukraine is being fought largely in an urban setting. Fighting in built-up areas, even when entirely following the laws of war, is extremely destructive. It tends to result in considerable loss of civilian life. We have seen this in recent years in Syria and Iraq, in cities like Raqqa, Mosul and Fallujah.

In modern conflicts, we have also seen the catch-all phrase “dual-use targets” being used to justify attacks on a very broad category of potential targets. Beyond that, the laws of war actually permit what is euphemistically called “collateral damage”.

In war, human rights are violated daily on an entirely legal basis. Peace, even on unfavourable terms, is generally a much better way of protecting rights than prolonging war, however just the cause.

Despite this, in the past week NATO has stated that it will back Ukraine if necessary for years. The British government has stated that it will support Ukraine if it tries to retake Crimea, and the U.S. Secretary of Defense has stated that America’s aim is to weaken Russia. The human costs of these options, if put into practice, would surely be enormous. Even if Ukraine manages to halt the current offensive in Donbass, it is unlikely that it will have sufficient strength to recapture all its lost territories. Even if it could recapture them, it could not do so without inflicting on cities like Donetsk and Luhansk the same sort of damage the Russians have inflicted on Mariupol.

Ending suffering would require the war be brought to an end as rapidly as possible, but I am concerned we may be moving—

[The Vice-Chair, Conservative, Michael Cooper]

I'll have to ask that you wrap up.

[Prof. Paul Robinson]

—in the opposite direction.

On that point, I conclude. Thank you.

[The Vice-Chair, Conservative, Michael Cooper]

Thank you, Professor Robinson.

Lastly, Mr. Czolij, I will turn it over to you for your five-minute opening statement.

[Eugene Czolij, President, Non-Governmental Organization Ukraine-2050 and Honorary Consul of Ukraine in Montreal, As an Individual]

Mr. Chair and members of the House of Commons Subcommittee on International Human Rights, thank you for inviting me to appear before you in view of your study of the current situation of human rights in Ukraine and Russia.

My name is Eugene Czolij. I'm the president of NGO Ukraine-2050 and the honorary consul of Ukraine in Montreal.

Needless to say, my task today was considerably simplified by the unanimous adoption on April 27, 2022, of a motion by the House of Commons of Canada correctly recognizing that the Russian Federation is committing acts of genocide against the Ukrainian people. Genocide is clearly the gravest crime and the worst violation of human rights.

A month and a half ago, on March 16, 2022, the International Court of Justice in The Hague rendered an interim judgment in the case of Ukraine v. Russian Federation, ruling first that both countries are parties to the UN Genocide Convention, and then stating that:

The Court considers that the civilian population affected by the present conflict is extremely vulnerable. The “special military operation” being conducted by the Russian Federation has resulted in numerous civilian deaths and injuries. It has also caused significant material damage, including the destruction of buildings and infrastructure. Attacks are ongoing and are creating increasingly difficult living conditions for the civilian population. Many people have no access to the most basic foodstuffs, potable water, electricity, essential medicines or heating. A very large number of people are attempting to flee from the most affected cities under extremely insecure conditions.

On that basis, the International Court of Justice ordered that: “the Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine”.

Since then, on a daily basis, Russia has been blatantly violating this order of the International Court of Justice as Russian forces relentlessly pursue their vicious bombardment of the civilian population and infrastructure of Ukraine, including hospitals and schools as well as residential buildings, and commit countless war crimes by killing, raping, torturing and starving Ukraine's civilian population and forceably deporting children from the temporarily occupied territories of Ukraine to Russia.

There is a saying that a picture is worth a thousand words, so please try to imagine today's reality in Ukraine as you listen to the following statement by Ukrainian Parliament Commissioner for Human Rights, Liudmyla Denisova, reported on April 11, 2022, by the BBC.

About 25 girls and women aged 14 to 24 were systematically raped during the occupation in the basement of one house in Bucha. Nine of them are pregnant.... Russian soldiers told them they would rape them to the point where they wouldn't want sexual contact with any man, to prevent them from having Ukrainian children.

If that does not revolt you, nothing will.

With the most sophisticated intelligence reports available to him, about a month ago after this judgment, President Joe Biden qualified these atrocities as genocide. The President of the United States later explained:

I called it genocide because it's become clearer and clearer that Putin is just trying to wipe out the idea of even being able to be Ukrainian. The evidence is mounting.

For the record, one need only recall the gruesome images of Bucha, Borodianka, Irpin, Kramatorsk and Mariupol to name a few that made headlines.

Putin and the Kremlin are obviously aware of the atrocities being committed against the Ukrainian people and, by their conduct, endorse such acts of savagery and ensure that the Russian forces perpetuate them.

For instance—and I will end on this, Mr. Chair—on April 18, 2022, in a presidential decree, Putin honoured Russia's 64th motorized brigade that committed the horrendous war crimes in Bucha, by awarding it the title of “Guards” and stating that “The unit's staff became a role model in fulfilling its military duty, valour, dedication and professionalism”.

[The Vice-Chair, Conservative, Michael Cooper]

Thank you, Mr. Czolij.

We will now proceed to our first round of questions for members.

Each member will have seven minutes, starting with Mr. Zuberi.

The floor is yours, Mr. Zuberi.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Thank you, Mr. Chair.

Thank you to the witnesses for being here and taking the time with us today. I want to start off with Mr. Eboe-Osuji.

Could you please explain to us a bit more what you were elaborating on in your opening remarks around a treaty that would promote the right to peace? I found those comments really interesting.

[Dr. Chile Eboe-Osuji]

Thank you very much, honourable member.

Right now, there is no recognition of peace as an actionable human right. I speak to people about it and say, how can that be? We have fundamental rights to security, to life. Those are some of the essential ones. With regard to freedom of speech, freedom of expression, you ask yourself, which of these rights do we have in the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights? Which one of them can you really enjoy meaningfully in circumstances where there is no peace, in circumstances of armed conflict? You just look at what's happening in Ukraine to get your answer to that question.

We don't have peace recognized as an actionable human right, and it is long overdue. When you do that.... In law, there is a notion in Latin, which is expressed as ubi jus, ibi remedium, meaning “where there is a right, there is a remedy”, when that right is violated.

When you recognize peace as a fundamental human right, it will then mean that anyone who engages in a war of aggression—and by the way, a war of aggression is not recognized in international law as a crime against international law.... Anytime you have a war of aggression, the victims of that war of aggression will have a remedy against those who launched that war and accomplices to that war.

You have scenario where.... It's not just the prosecution, of course. We have to tighten the prosecutorial front to ensure that people are prosecuted. However, beyond the prosecution, the victims of these aggressions—people who have lost loved ones in this fight, for instance, in Ukraine, people whose homes have been destroyed—will be able to go after those who commenced that war and those who facilitated that war. When I talk about those who facilitated that war, you include other states that would have supported that war. You would also include corporations that furnish weapons to fight wars of aggression.

Let me be clear here: When I say corporations that furnish weapons, I'm not talking about corporations that have armed states to defend themselves against wars of aggression for purposes of self-defence. It would be once you supply a country with weapons that they need to defend themselves and then it turns out down the line that they used those weapons to launch a war of aggression that everybody recognizes. The weapons that were originally supplied are depleted at the first round of offensive, and then you keep resupplying so that the war of aggression continues. Any corporation that does that would be on the hook as an accomplice of a war of aggression, together with the country that commenced it.

If we have that kind of recognition, it would mean that these assets that are frozen all over the world.... Canada is wondering what we do with these frozen assets—

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

If I could ask....

[Dr. Chile Eboe-Osuji]

—you can then use that later on and satisfy the judgment against those whose assets you have seized.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Could you briefly explain how that type of treaty would be triggered, as you see it right now? You did reference a number of historical events that lead to treaties and whatnot.

Do you think the current circumstances would lead to such a treaty coming forth, which would protect the right to peace?

[Dr. Chile Eboe-Osuji]

I think that the current circumstances provide fertile emotional soil for that to grow. If countries like Canada could take it up as something worth pursuing, I do think that they will have some reception.

Of course, I'm not guaranteeing that. You know what happens in these wars. At some point, the shooting will stop and then people will quickly want to move this behind them. At that stage, those countries who may want to do what they want to do in the future may be against that sort of proposal, knowing that it may come back to haunt them.

This is now the time to move that project, if we think it is something that victims in this war in Ukraine or victims in other wars of aggression happening around the world as we speak could use.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Thank you.

Maybe I'll shift to Mr. Stewart and continue with you, Mr. Eboe-Osuji.

To both of you, in your opinion, what obligations, with respect to international law and the Geneva Conventions, is Russia currently violating in its conflict with Ukraine?

[Dr. Chile Eboe-Osuji]

If you can go fast, since I did the last one, I'll come back later.

[James Stewart]

The suggestion, from what we see.... Of course, I'm a retired prosecutor, so we have to be careful what we say here in speaking in conclusive terms.

If you were to ask me what evidence would suggest the crimes that we're talking about, the list is very long. In the situation of international arm conflict, we're looking at potential crimes or at least potential proof of crimes such as wilful killing, torture, extensive destruction of property that is not justified by military necessity, unlawful deportation, disproportionate attacks, pillaging, employing weapons that cause indiscriminate suffering and death, and rape, as we've heard from the consul from Montreal.

The list is a long one and that's not an exhaustive one.

[The Vice-Chair, Conservative, Michael Cooper]

Thank you, Mr. Stewart. The time has expired.

I will now turn it over to Mr. Viersen for seven minutes.