His legal robes exchanged for a black waterproof jacket and sneakers, Karim Khan QC stood on the mud of Bucha and glared grimly down into a mass grave.
“Ukraine is a crime scene,” he declared in a statement that day from the Kyiv suburb now internationally known for the outrages committed while it was under their occupation of Russian troops. “We have to pierce the fog of war to get to the truth.”
Khan is the chief prosecutor of the International Criminal Court (ICC), The Hague-based tribunal that since 2002 has been charged by its 123 member states with prosecuting some of humanity’s greatest crimes.
Its mandate covers genocide, war crimes, crimes against humanity, and the crime of aggression – the attempt by a state to expand its territory through an unprovoked military attack, described in the Nuremberg trials that followed the defeat of Nazi Germany as “the supreme international crime”.
Prosecution is essential not only to secure justice for victims, but to set a precedent, Khan told The Irish Times in a group interview in The Hague court, where he has returned to lead investigative efforts for potential future trials.
“In a culture of impunity, or an idea that international law and international states are impotent – this idea is very dangerous,” Khan said. “Because it can embolden.”
With a gun or with bare hands
The invasion of Ukraine has brought together an unprecedented international coalition determined to investigate and prosecute war crimes, if the evidence shows they have been committed – and in Ukraine, Khan has said, there are “reasonable grounds to believe” they have.
The ICC formally opened its investigation into possible violations of its founding treaty the Rome Statute in Ukraine in March, after 43 member states including Ireland formally referred the situation to the court’s attention.
Khan is tight-lipped on what potential crimes could be prosecuted, and stresses that investigators will pursue the evidence irrespective of which side in the conflict may be at fault. Any individual could be prosecuted.
“We will follow the evidence,” he said. “Whether you’re a foot soldier, you’re a conscript, you are a civilian who’s taken up a weapon ... a contractor or a regular soldier, a tank commander, a pilot, somebody with a mortar or with a gun or somebody with bare hands. You don’t have a licence to commit crimes within the Rome Statute.”
Retraumatisation
The determination for accountability has brought together NGOs, civilian crowdsourced investigators, international and national judicial authorities.
This wide coalition of groups interested determined to pursue accountability in Ukraine is an advantage, but it also brings risks. Duplication of efforts cannot only be wasteful, but actively harmful to investigations. In the past, well-meaning efforts by various groups to bring crimes to light produced evidence that was not collected to a standard that would hold up at trial.
Khan mentions the case of Cox’s Bazaar, where tens of thousands of minority Rohingya people fled in 2017 due to persecution in neighbouring Myanmar.
“That really is a very vivid example of a situation where there was over-documentation, a stampede towards collection,” Khan said.
“Victims have undoubtedly been re-traumatised, because people that have suffered sexual gender based crimes have sometimes been interviewed by multiple actors. So instead of enhancing accountability, it may well have degraded it. Both in terms of evidence, and conflicting statements. But more importantly even than that the duty to do as little harm as possible to victims and survivors.”
In Ukraine, there is an imperative to apply the lessons learned, to avoid “trampling on inadvertently and unintentionally those that we’re trying to protect and serve, and the evidence we’re trying to gather”.
Jurisdiction
The imperative for co-operation has caused an evolution in the role of Eurojust, the European Union’s agency to facilitate judicial co-operation between member states to combat crime.
Its mandate was rapidly expanded this spring to allow it to store and analyse evidence of war crimes, ranging from fingerprints, to DNA profiles, to videos and satellite images, and provide this information as needed to judicial authorities across the EU and to the ICC.
Ladislav Hamran, president of Eurojust, takes as an example the theatre of Mariupol, which was notoriously bombed in March despite the fact that satellite images show the word “children” had been written in enormous letters on the ground outside to dissuade attacks on the sheltering families within. An Associated Press investigation found almost 600 people were killed.
“After the theatre was bombarded, people fled. They might be in Slovakia, in Poland, in Germany, in Switzerland and so on,” Hamran explained. National authorities could approach the survivors and take their testimonials in each place.
“Those countries would send the contributions to our central repository. And we would then categorise and collect, analyse all these pieces of information, and we would be able to tell to Ukrainian authorities that for this incident, there are several testimonies ... and they can be requested through each of the judicial channels referring to this reference number.”
Already, thousands of pieces of evidence have been collected by investigators, ranging from witness testimonials, to satellite imagery, to communications data. In the digital age, the scope of the evidence is in itself a challenge, as it makes up vast amounts of data, such as photo and video evidence, that must be sifted through.
Co-ordination is essential for establishing the prevalence of crimes, and whether they were isolated incidents or part of a top-down policy. This is vital for identifying the responsibility of senior commanders, and for defining the crimes committed, because crimes against humanity are defined under the Rome Statue as acts that are “widespread or systematic against civilian population”.
“Only from a centralised tool ... you can actually determine whether many individual war crimes are actually part of a systemised and widespread attacks against civilians,” Hamran said.
“If someone for, example, kills a civilian, it might be just an individual crime of the soldier. But if someone instructs the military services to target, to kill, to rape civilians, this is then ... high-level commanders, generals, because only they can give all these commands to all the soldiers.”
Depending on what the evidence shows, some national courts may have jurisdiction to prosecute crimes, if their citizens are involved as either perpetrators or victims.
A test
The push to reaffirm the principles of international law is being advanced by the government of the Netherlands, the host of much of these efforts and a long-time advocate, drawing from its past bitter experience of occupation, of the importance of international law to protect smaller countries from the encroachment of more powerful neighbours.
It is motivated by a determination to avoid a repeat of the long and tortured path to accountability that characterised the aftermath of the shooting down of passenger jet MH17 over eastern Ukraine in 2014, which killed 298 civilians, most of them Dutch, and remains an open national wound.
Because neither Ukraine or Russia are members of the ICC, under past agreements it cannot prosecute the crime of aggression – prohibited under the 1945 UN charter as “the threat or use of force against the territorial integrity or political independence of any state”. A special international tribunal may be required to prosecute this crime.
Ukraine has, however, accepted the ICC’s jurisdiction, which is enough to allow it to investigate and hold any future trials for the other crimes of the Rome Statute: genocide, war crimes and crimes against humanity.
Ukraine may prove a test for the ICC, to re-establish trust in it as an institution, and in the concepts of international law that underpin it.
It follows a challenging period for the court, which has been criticised for lengthy, grinding trials made justice seem elusive. Meanwhile, around the world political forces have advanced that reject the concepts of international co-operation that developed in the aftermath of the second World War, and put national sovereignty first.
The United States withdrew from ICC ratification under the administration of George W Bush. Relations reached a new low under the government of Donald Trump, which imposed sanctions on ICC prosecutor Fatou Bensouda over her investigation into whether American forces committed war crimes in Afghanistan. These were lifted by the Biden administration last year.
Russia annulled its process of joining the court in 2016, after three African nations withdrew amid criticism that the court focused too much on crimes in their continent.
The ICC has found itself having to defend the universality of the concepts that underpin its work.
“The Rome Statute does not promote ‘European values’. We promote human values that are collectively owned by people around the world,” Khan said. “Nobody has a blank cheque to do what they want ... to target women and children, to destroy churches or mosques or temples or synagogues, or hospitals or schools, to deliberately try to tear the souls of society to tatters.”
“These are principles that are not new. They are expectations that humanity now has realised, not only here in The Hague but around the world.”
