(Ця стаття також доступна українською мовою тут.)

The United States has a historic choice to make in how it supports the Office of the Prosecutor of the International Criminal Court (ICC) in his investigation of war crimes in Ukraine. The Biden administration will best serve the United States, Ukraine, and the international community by supporting the Prosecutor fully. What follows are the reasons why and what that should entail.

Enforcing International Humanitarian Law is the norm
Putin’s war in Ukraine is the biggest challenge the enforcement of international humanitarian law has faced since Nuremberg. A way must be found to hold President Vladimir Putin and his accomplices individually accountable for what they have done and what they are continuing to do in Ukraine. Success includes one milestone of issuing well-grounded indictments that are beyond reproach and another milestone of raising the prospect of effective prosecutions.

Based on my experience and on what western leaders, including President Biden and now Secretary Blinken, have been saying since President Putin began his war of aggression in Ukraine, I believe the will to hold those who violate international humanitarian law criminally accountable in judicial proceedings that meet international standards is something the world welcomes in the case of Ukraine.  I also believe that enforcing international norms this way is becoming the norm rather than the exception.  President Biden’s and Secretary Blinken’s remarks and media preoccupation with whether Putin ought to be called a war criminal and prosecuted for what he has done in Ukraine, prove my point.

The extraordinary list of former heads of state, leading legal jurists, and others in favor of standing up a tribunal to try Putin and his accomplices for the crime of aggression and the global public petition (now over one million signatures) for the same are further indicators of a desire for accountability and moral leadership. Technically that effort concerns the resort to war in the first place, not war crimes during hostilities, but it boils down to the same normative trend. The 41 states that have petitioned the ICC to take up the situation of Ukraine is further strong evidence in this regard.

The ICC is the way
Underfunded and understaffed, and lacking the acceptance and backing of the United States which did not ratify the Rome Statute and is not a State Party, the ICC is the way.  It is the only tribunal available that can be expected to deal with violations of international humanitarian law on the scale they are being committed in Ukraine. The ICC, as weak as it is by design and by circumstances, must be trusted to take the lead.  Anything that might drain off or compete for the precious few resources that will be given to the ICC Chief Prosecutor to conduct a meaningful investigation in Ukraine must be discouraged.

I no longer have the authority or responsibility for making prosecution decisions or exercising the power to investigate or prosecute individuals for violating international humanitarian law that I once had, but I know from experience how heavy the responsibility is that comes with this power and what are likely to be some of the challenges the Office of the Prosecutor will face in Ukraine.

I have the greatest respect for the ICC and for Karim Kahn, its Chief Prosecutor, his deputies, and staff, many of whom I know personally.

Ukraine is testing the ICC as never before
Managing something the size and scale of the investigation the Chief Prosecutor must undertake in Ukraine will be a severe test which if passed may establish the ICC as the institution it was hoped it would be when it was conceived and increase its worldwide prestige and support.  If it fails, it will likely be condemned as irrelevant; good for Africa perhaps, but impotent in cases involving systematic war crimes by a more powerful state. A global order based on respect for international humanitarian law cannot be built on that foundation.

I fully understand and agree that Mr. Kahn must be careful about what he says regarding violations of the Rome Statute. He must remain independent of political influence.  He must set to one side personal feelings and emotions. To do the job right, he must be objective and be seen as objective. He is ethically, legally, and practically bound, barring the most unusual circumstances, not to publicly discuss investigations or the targets of investigations or talk publicly about how he is going about the collection of evidence or about what evidence he or others have gathered. He cannot talk openly about any conclusions he may draw from information or evidence that may or may not be complete or completely reliable.

In his position, he is obligated to be fair, objective, thorough, independent, ethical, and competent, to draw conclusions and lay charges only after acquiring reliable evidence, evidence that will be available to use at a trial if he chooses to charge someone with a crime.  He will propose charges or decline prosecutions based only on the most comprehensive knowledge and understanding of the facts and law he is able to bring to the task.  I am certain he will exercise his best, independent and most informed judgment as to anyone on any side of the conflict who he has authority and jurisdiction to prosecute, including Putin.

I have no doubt he will discharge those obligations brilliantly.

I am not so bound in what I can say. My comments and observations about the challenges and problems associated with investigating the violations of international humanitarian law that without question have already been committed in Ukraine are based principally on my depth of experience in the Balkans and what I have drawn from media coverage of the war. They are not intended to inform, advise, criticize or, certainly, interfere in any way with the Chief Prosecutor’s work.  Indeed, my comments are happily unencumbered by any first-hand knowledge of the situation in Ukraine.   Unlike the Chief Prosecutor and those of his staff who have recently spent time there, I have only an outsider’s view of the task he is facing.  I know nothing of the state of the work that he and his investigators and prosecutors have done, are doing or plan to do in future.

The “Thicket”
But, having been in a similar though not so fraught spot, I know the Chief Prosecutor is working his way right now through a difficult thicket in Ukraine, in The Hague, and internationally.  He is trying to realistically manage the impatient expectations of all those who are affected by Putin’s war, including the expectations of  the ICC State Parties that fund him, the expectations of States that are not party to the Rome Statute who are nervous about how he will use his authority in Ukraine and in future, and the demands of the ICC’s well-meaning, well-intentioned, but sometimes poorly informed and unrealistic boosters and detractors, all of whom shape public opinion and influence support for the ICC.  He must simultaneously deal expertly with the real-world challenge of investigating crimes that by their nature and the way in which they must be investigated and proven, are unique. He must do it all while managing an existing caseload which already strains his inadequate funding and overwhelmed staff.  At times he will also be forced to deal with ill-considered meddling by those expecting quick results, just as I have in my time as an executive prosecutor.

Managing expectations
As in the case of any crime, the Chief Prosecutor bears the burden of proving guilty beyond a reasonable doubt anyone he charges of war crimes and crimes against humanity using reliable, legally qualified evidence.   He is governed by the presumption of innocence, a bedrock principle that must be honored without regard to who an accused might be, even if that person is Putin.  The presumption of innocence is something that is especially difficult for some to acknowledge when the “proof” of “war crimes” seems so self-evident in Ukraine.  In cases like Ukraine, the public, even the well-informed public, the media, and others who shape public opinion often fail to comprehend or put into proper context the scope of what the Chief Prosecutor must do, the limits under which he must function, and the care he must take to successfully prosecute violations of international humanitarian law before the ICC.  Unrealistic expectations are often the result.

The task facing the Chief Prosecutor
In Ukraine, the Chief Prosecutor is faced with an overwhelming task.  He must identify and engage with those who are already processing individual crime scenes, which can be extraordinarily complex, and new crimes that are committed every day of the war.  He must find out who is conducting this work, and where and how they are performing these tasks before he moves far forward with their information. He must identify what weapons are being used by both sides in the war, what their capabilities are and aren’t, what kind of munitions they use and what kind of damage they can do.  Experts must begin to do ballistics analysis to determine where indirect fires that have done so much damage and resulted in so much death and injury have come from. The units involved in the fighting must be identified along with what uniforms, insignia, and equipment they wear, and when and where they have been deployed.  In many or most cases, rosters of the people in the units must be found and chains of command sorted to identify individual actors involved in the violence from the grunts pulling the triggers, to the field commanders giving them tactical orders, to indirect fire spotters, officers responsible for artillery and rocket batteries, pilots, and crews, and the staff officers and generals managing the campaign.  The political leaders who made it all happen in the first place and who keep it going must be individually identified.

Locating, organizing, preserving, and securing the mountains of digital, electronic, documentary, photographic, ballistic, forensic medical, and physical evidence that are growing every minute of the war, and in some cases are disappearing, being corrupted, or lost just as quickly, are priorities and must be addressed immediately. Identifying, capturing, and preserving the recollections and impressions of the many, many witnesses and potential witnesses to the crimes as soon after the events they experienced as possible, including the recollections and reporting of journalists must also start to happen now. Locating, identifying, interviewing, and tracking captured combatants, verifying, preserving, and securing their recollections must be coordinated.

Locating, collecting, preserving, and securing signals intelligence, human intelligence, and other intelligence that is likely to be relevant, including captures of battlefield and command and control communications will be difficult, but essential to finding evidence to prove, among other things, guilty knowledge and intent.

All of this, and more, of course, must be done while Russia continues its aggression, while the Ukrainian military is fully engaged in a fight for its life and the life of their country, while law enforcement and first responders are trying to do their jobs, and while judicial institutions in Ukraine are at best struggling.  While the war is a daily matter of life and death, military and political necessity will make cooperating or collaborating with the Chief Prosecutor difficult, frustrating, and tedious, even impossible at times.

It is almost certain that the killing and destruction in Ukraine will intensify. Political compromises made to end the fighting, save lives, and avoid further destruction, concessions that are likely to impact the Chief Prosecutor’s work, are always a possibility.

Compounding the challenges facing the Chief Prosecutor is the likelihood that there is already competition and, I expect based on my experience, overlap and confusion in the identification, collection, verification, organization, and preservation of potential evidence. The possibility that critical evidence will be missed, destroyed, compromised, or lost is acute.

A central authority for evidence collection
I am confident that the Chief Prosecutor and those working with him are doing what they can to take control of the situation by making the Office of the Prosecutor the central authority for directing, organizing, and coordinating efforts to identify, collect, verify, organize, and manage the evidence of war crimes committed in Ukraine.

This is essential for ensuring evidence is collected properly according to international standards so that it can be relied upon later.  A secure repository must be created for all that might be of evidentiary value that is being generated or collected by, among others: local authorities (e.g. fire, police, prosecutors, emergency responders, doctors, pathologists, nurses, hospitals); non-governmental organizations (e.g. those in contact with refugees; aid organizations; the Commission for International Justice and Accountability (CIJA)); international organizations (e.g. organizations like the International Commission on Missing Persons (ICMP) that have special or unique expertise in technical fields like DNA collection and identification, medical organizations like Doctors Without Borders, Physicians for Human Rights, and other organizations already in the field who can collect and document forensic evidence of crimes); informal aid and assistance organizations; military in the field; military experts (e.g. firearms, explosives and ballistics experts; analysts; interrogators); military and intelligence agencies operating in and outside Ukraine; media sources (e.g. CNN; Sky News); and independent sources (e.g. those creating and collecting open source digital evidence of crime to ensure it is collected and managed in compliance with the Berkley Protocols). Due to the players involved on the Russian side, these activities will also need to be handled with a heightened level of cybersecurity.

Given the uncertainty of the next phases in the war and outcome in Ukraine, it is critical that whatever evidence is now in Ukraine be relocated and managed by the ICC in The Hague.  All evidence collected in future should be sent to The Hague for protection and to make it available for prosecution in the event the war does not end well for Ukraine.

Ukraine’s acceptance of ICC jurisdiction for war crimes and crimes against humanity committed in Ukraine after 2014 requires Ukraine to cooperate with the ICC. It also requires cooperation from the international community (beyond just the specific legal obligations contained in the Rome Statute). It makes the Prosecutor’s Office of the ICC the proper institution, indeed the only institution, with an international remit to perform the central authority role for achieving justice.  It gives the Office of the Prosecutor the authority to coordinate the activities of all those generating or collecting evidence of violations of Article 7 and Article 8 of the Rome Statute in Ukraine. And with this authority the Office will also need to work out relationships with other institutions such as the UN Human Rights Council’s Commission of Inquiry. Yet another momentous, delicate task for the Office to undertake.

Funding and support
The Chief Prosecutor has almost certainly collaborated with Denys Maliuska, the Ukrainian Minister of Justice, and Iryna Vendiktova, the Prosecutor General of Ukraine, and other key stakeholders, whether State Parties to the ICC or not, to devise a strategy and plan for identifying, collecting, preserving, and securing potential evidence and for integrating local prosecutors and investigators into the collection plan.

I am confident the Chief Prosecutor has already begun to identify experts, facilities, and logistic and technical needs and has begun developing a personnel and management plan and a budget that will enable him to meet them.

The Chief Prosecutor cannot hope to satisfy even the most realistic expectations Ukraine and the international community have for his investigation if the international community does not invest in him. That means providing the necessary political capital and resources to conduct an open-ended investigation by the ICC in Ukraine and to fund and support any of the protracted prosecutions that might result.

In my experience, notwithstanding public outrage and expressions of indignation and disgust at the violence being committed in Ukraine, international political will and financial support for work like the ICC undertaken in Ukraine will weaken with time as the images and shock and the outrage of the moment fade. The ICC will fail if the international community — not just the State Parties – fails to give the Chief Prosecutor what he needs to succeed now and the support he will need over the long term.

This is especially important when it comes to access to relevant electronic, signals and human intelligence collected by the military and civilian intelligence agencies of NATO members, including the United States and the United Kingdom leading up to the Russian invasion of Ukraine, during the invasion, and as the war is being fought.  In the matters for which I have been responsible in the past, the United States has never been fully helpful nor fully responsive when it comes to this. If the agencies won’t commit to enforceable arrangements to make the requisite information available for use not only in the investigation but in any trial that might result, and if the international community won’t truly cooperate and assist in any investigation and prosecution the ICC undertakes, the work of the Chief Prosecutor will suffer significantly.

The United States and the ICC
Even with the welcome confirmation recently of Beth Van Schaack, a brilliant and experienced colleague, as the new U.S. Ambassador at Large for Global Criminal Justice, and even though the United States is apparently serious about accountability and investigations, and even though the United States has a history of moral leadership with the trials at Nuremberg, the creation of the ICTY, and the crafting of the Rome Statute, it remains to be seen how this administration  will make good on President Biden’s and Secretary Blinken’s recent comments.

It is no secret that for years the ICC has not enjoyed the full support of the United States.  Congressional hostility has dogged the ICC since 1998.  Ironically, some in Congress who have been outspoken critics of the ICC are now among those calling for international investigations and prosecutions of Putin and his accomplices, while offering no workable alternative to the ICC. Successive administrations have never fully warmed to the ICC, which then culminated in the Trump administration’s petulant efforts to dismantle it and singling out the former ICC Chief Prosecutor’s investigation of what U.S. agents most likely did in Afghanistan and elsewhere following 9/11 as a basis for sanctioning the Chief Prosecutor at the time and others, something that was universally condemned and reversed by the Biden administration.

Sadly, United States calls for investigating Putin and his accomplices for violating international humanitarian law also come on the sorry heels of the abhorrent disregard for international norms Trump showed the world when he brazenly pardoned and commuted the sentences of U.S. service members and contractors properly convicted of war crimes they committed in Iraq and Afghanistan.

This is no time for the United States to wince and withhold its full support for the ICC.  Ukraine offers the United States an opportunity to step up and regain a leadership role in the enforcement of international humanitarian law and turn the page.  The Biden administration appears ready to do that.

The United States can and should make good on what President Biden and Secretary Blinken said this week and advance the enforcement of international norms the war in Ukraine has dramatically brought into focus, and which the United States championed in the past. The administration needs to get fully involved with the ICC investigation in Ukraine, by supporting the investigation without reservation, by giving the Chief Prosecutor access to what he needs to properly investigate Putin and his accomplices’ actions in Ukraine. The United States knows how to do this ,including by making available the needed intelligence, and by contributing funds and  logistic and technical expertise  to ensure his success. It’s no longer a choice whether just to support the Prosecutor but whether to turn away and thus undercut him at this vital moment. What the United States does next will speak volumes.


Photo credit: Prosecutor Karim A.A. Khan QC walks with Prosecutor-General Iryna Venediktova in Kyiv, Ukraine, 16 March 2022 (ICC)