War Crimes and Crimes Against Humanity are being committed nearly every day in Ukraine. We can see it on our TV. Russian forces are apparently deliberately targeting civilian infrastructure in ways that violate international humanitarian law.
So what opportunities might exist to hold perpetrators of atrocity crimes accountable for their actions? Joining me to discuss this question and more is Mark Kersten. He a researcher at the Munk School of Global Affairs at the Global Justice Lab at the University of Toronto, founder of the excellent blog Justice in Conflict and works at the Wayamo Foundation.
We kick off with an extended conversation about the role of the International Criminal Court. We also discuss other potential opportunities and venues for justice and accountability for war crimes and crimes against humanity in Ukraine.
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Transcript lightly edited for clarity
What War Crimes Have Most Likely Already Been Committed in Russia’s War on Ukraine?
Mark Goldberg [00:02:20] So, Mark, before we start the formal part of the interview, how would you feel if I used the term atrocity crimes throughout this interview to refer to crimes against humanity, war crimes, and genocide? Is that like a useful catchall term for much of what we will probably be discussing today?
Mark Kersten [00:02:37] Yeah, I think that’s great, and I just remind people that I know it gets maybe less attention, although it’s getting more with the context in Ukraine that included in atrocity crimes, we should also, even if it is limited, be thinking about the crime of aggression. But yeah, that works for me.
Mark Goldberg [00:02:55] Not to worry. In my interview notes, I have a note to myself to have a digression with you about the crime of aggression. So, I am prepared. OK, so, Mark, just to kick things off, based on what you have seen so far in this war, what sort of crimes do you suspect have been committed?
Mark Kersten [00:03:21] Yeah, so I think the most obvious are war crimes and crimes against humanity related to what we see in images and in the footage of news outlets, which is what appears to really be kind of indiscriminate shelling and attacks against civilian populated areas. Obviously, there was the attack on the maternity ward in Mariupol, so that was striking. But I think it’s interesting to note that Ukraine has followed Syria as the most documented war in our time. We’re watching it happen in real time with video so we can see the kind of evidence that would point towards these kinds of crimes being committed and particularly those against civilians. What’s more, challenging, I mean, I think it’s not too difficult in my view, at least to identify most of these as war crimes and crimes against humanity. What will be more difficult is then taking that information and saying, OK, well, we can build a case that attributes responsibility for that atrocity crime, as you put it, to a specific individual or specific actor, be it in the Kremlin, in Moscow or on the ground in Ukraine.
Why is the International Criminal Court investigating alleged crimes against humanity in Ukraine?
Mark Goldberg [00:04:46] And that’s the job, presumably of someone like the prosecutor of the International Criminal Court. And you know, it’s worth noting that on March 2nd, the prosecutor of the ICC, the British barrister Karim Khan, announced an investigation into alleged crimes in Ukraine. But Ukraine is not a member of the International Criminal Court so can you explain how this ended up on his desk and presumably within the jurisdiction of the ICC?
Mark Kersten [00:05:17] Yeah, it’s an interesting story. A lot of people are wondering, I think, why isn’t Ukraine a member state of the International Criminal Court? Initially, the Constitutional Court in Ukraine had actually found that basically it would be unconstitutional for Ukraine to join the ICC but there were constitutional amendments in 2016 that permitted the government to sign up and join the International Criminal Court. They have not done so, but what they did do in 2014 and then a couple of years later, is use a provision under the Rome Statute of the International Criminal Court, which allows nonmember states like Ukraine is to accept the jurisdiction of the International Criminal Court. At first, they did it over the events in the Maidan square and this quite circumscribed kind of time and space that they invited the ICC to investigate and effectively the prosecutor at the time declined to do so, and then they increased, almost at the same time as they declined, the Ukrainian government at the time increased the kind of jurisdiction in time and space to include events in eastern Ukraine so in Donetsk and Luhansk and in Crimea. So, Ukraine has effectively kind of voluntarily, I would put it, accepted the jurisdiction of the International Criminal Court, which is the basis on which the ICC can act. And then, as you mentioned, the court has opened an investigation and as of right now, I believe the number is 41 states, members of the International Criminal Court, primarily from the West, have referred the situation in Ukraine to the International Criminal Court just a couple of days ago, and the numbers seem to increase by the day. So quite remarkable kind of collective effort to request and push the ICC prosecutor to get this investigation going, which, as you noted, he announced a couple of days ago. And I note because I think it is an important development that the prosecutor himself, Mr. Karim Khan, is currently in Ukraine and has just completed a meeting on Zoom or some kind of digital apparatus with President Zelensky and also met with other members of the Ukrainian government, which is quite a remarkable thing given the fact that there are ongoing hostilities.
What progress did the International Criminal Court prosecutor Karim Khan make while he was visiting Ukraine?
Mark Goldberg [00:07:47] So he’s in Ukraine right now or was at least very recently in Ukraine. What do we know about his trip? I mean, has there been much public information about who he met and what he was doing there?
Mark Kersten [00:08:02] Yeah, I believe he met with the justice minister and then didn’t meet with Zelensky directly. The news just came out about an hour or two hours ago with an announcement by the International Criminal Court itself that he was there. For obvious reasons that probably wasn’t going to be information that was spread in advance for security purposes, but perhaps, you know, we saw the political leaders from the Czech Republic and Poland, and I believe it was Slovenia or Slovakia, my apologies for getting that mixed up, but they were in Kyiv the other day, so perhaps he felt compelled to do that for security reasons, too. We don’t know much more about it, but I think it is an indication of two things. One is the obvious thing that the prosecutor is clearly taking this investigation extremely seriously. And two, traditionally the International Criminal Court and its staff have been very hesitant to put staff, including investigators, into harm’s way by sending them to investigate atrocities in the context of ongoing and active conflict. And Prosecutor Khan has sent already, there’s been a team of investigators on the ground from the ICC for some time now in Ukraine and in addition, the fact that he went himself, I think, marks quite an important shift in suggesting that the court is willing to do maybe some of the riskier but very important and hopefully fruitful work of investigating crimes as they’re being committed.
What can the International Criminal Court do to stop crimes against humanity in Ukraine?
Mark Goldberg [00:09:49] That’s fascinating. So, what can we expect from the ICC in the coming days? What does it mean to have an investigation ongoing? What is the ICC doing right now in the context of Ukraine?
Mark Kersten [00:10:09] Yeah. So hopefully no one knows in the sense that if you and I knew or if people knew, then I think there’d be a real risk to the safety and security of some of these investigators, and there would be perhaps some attempts to interfere with their evidence collection. So, in very specific terms, I really do hope that very few people know exactly where these individuals are and what precisely they’re doing, because I think knowing that could potentially thwart their important efforts. But I think one thing that’s important to keep in mind and it relates to what we were just talking about that the ICC has been looking into allegations of these atrocity crimes since at least 2014, so while it only opened the investigation a couple of days ago, this isn’t a situation like, say, in Libya or Libya or Darfur, where an investigation was opened very quickly after the ICC was interested in potentially investigating the situation. We’re talking about quite a long period of time and the possibility that the court and not only the court but other actors, NGOs, the Ukrainian authorities themselves have been gathering evidence of war crimes and crimes against humanity committed in the East. So, they probably are already working with a pretty decent evidentiary basis and now want to assess whether current crimes or alleged crimes can be added to that. What we should expect: I personally don’t think we should expect very much in the near term. Perhaps the evidentiary basis and the evidence of war crimes and crimes against humanity is so strong that we’ll see arrest warrants issued in the next couple of weeks, but this prosecutor strikes me as someone who’s pragmatic and extremely careful. And in the short history of the International Criminal Court, rushing things has never led to justice being meted, let alone good things for the institution itself. So, I don’t know where the current investigation stands or how close or how distant they are to maybe issuing arrest warrants or requesting arrest warrants to be issued but I don’t think the expectation should be that this is an immediate thing. They have to do this diligently, carefully. They have the advantage of having probed what’s happened in eastern Ukraine for some time, but I think the court has to be very careful. And the one thing I would just add is that the prosecutor, Karim Khan, has, unlike perhaps some of the prosecutors before him, really stated that he will not pursue cases against individuals unless the evidence is effectively trial ready so he won’t seek an arrest warrant unless the evidence is so strong that he thinks on the basis of that evidence, even though he wouldn’t necessarily need it, that that he could successfully prosecute and can get a conviction.
Can Vladimir Putin be arrested and indicted for war crimes by the International Criminal Court?
Mark Goldberg [00:13:49] So, I know you saw this pretty striking interview that David Scheffer gave to CNN. David Scheffer is probably one of the more preeminent American scholar practitioners in the International Criminal Law Space. He is the former U.S. ambassador for war crimes issues. I think he even helped negotiate the Rome Statute on behalf of the Clinton administration back in the day, and he’s a professor now. But he said in that interview that he expected once this ball is set into motion, that it will inevitably lead to the indictment and arrest warrants being issued for Vladimir Putin himself. Without having you maybe predict whether or not that will in fact be the case in the near or medium term, could you perhaps discuss the wisdom and utility of indicting someone like Vladimir Putin for crimes in Ukraine?
Mark Kersten [00:14:53] Yeah, it’s an interesting question, and I, obviously, like many others, share the hope that that’s where the ICC eventually goes. I think the bigger question is maybe to take a step back and say, how is the ICC supposed to do that? How are they supposed to put a case together that is sufficiently strong that it would point directly to Putin, who as far as I know, hasn’t been to Ukraine in many, many years and certainly hasn’t been there during these current crises unless we consider and we should, Crimea as part of Ukraine. But how do you link what’s happening in Ukraine and what has happened in Ukraine directly to him? And here, I think the ICC prosecutor has some interesting choices to make. With all due respect to Professor Scheffer, I think that more consideration perhaps should be made among Khan’s team, not myself—what I think, shouldn’t matter that much to them—but to, for example, perhaps first issuing arrest warrants for mid-level perpetrators. Why? Because those mid-level perpetrators may be able to provide prosecutor Khan and ICC investigators with the type of evidence that would more conclusively point to someone like Vladimir Putin or Lavrov, or some of the most senior people in the Kremlin and there’s lots of ways you can do this. It’s not dissimilar to domestic criminal justice systems where you might enter a plea negotiation where the mid-level perpetrators get fewer years for any potential conviction on war crimes and crimes against humanity in exchange for providing evidence. The smoking gun when it comes to going after someone like Putin is kind of written orders that soldiers should enter into Ukraine and murder civilians or attack civilians or civilian areas. I highly doubt that smoking gun exists, but maybe there have been people that we can patch together who have been in the rooms, who have received orders, and we can bring all of that evidence together to finally say that the kind of evidentiary chain clearly leads to Putin. Again, I think we all kind of agree that he is morally and politically ultimately responsible for all of these atrocities but ensuring that he’s held criminally responsible is, I think, another thing altogether. I think there are some people who are worried that if we go after Putin, what this might mean for maybe peace in Ukraine, but I wouldn’t overstress the kind of peace versus justice debate in the context of Ukraine, because I don’t think Putin really cares that much about the ICC’s investigation. I really don’t think it matters very much to him and in particular, this most recent bout of violence, I think, has turned Ukraine and our response to it, the West in particular, but the U.N. General Assembly too, its response to it has made, I think it’s made the conflict in Ukraine now something of an existentialist issue for someone like Putin. And when despots and dictators like Putin or Libya’s Gadhafi start to feel like the outcome of a war is existential to them, things like the International Criminal Court or investigations just don’t really matter in their calculus or in terms of shaping their behavior. So, I wouldn’t worry about that. And I think all the efforts that kind of attempt to point towards him should be undertaken. It’s just again a matter of what’s the wisest course to get the evidence against him.
How does the case of crimes against humanity in Gadhafi’s Libya relate to Putin’s Russia and his aggression toward Ukraine?
Mark Goldberg [00:18:51] And then, of course, you’re left with the challenge also that to the extent that mid-level or top-level military officials are indicted or held criminally liable for crimes against humanity or war crimes in Ukraine, you know, they will never be extradited to The Hague from Russia. And so that’s one of, of course, the key challenges here. It’s not like the ICC has a police force that can roam the world, arresting people and extraditing them to The Hague. They would live under indictment in Russia or if they left Russia to a country with an extradition treaty then they might get nabbed. But that’s about it.
Mark Kersten [00:19:27] Yeah. And I think I think it’s worthwhile being quite sober about the referral and the kind of collective action we’ve seen with respect to the ICC in the sense that, you know, it seems that Putin is uniquely disliked by Western actors, in particular states, but also companies, human rights organizations, etc. It seems like he’s uniquely disliked, but Gadhafi, too in Libya was uniquely disliked as well, and there was collective action from the Security Council that in 2011 to refer the situation in Libya to the International Criminal Court and to investigate and hopefully prosecute Gadhafi. Obviously, that didn’t happen because he was killed in October of 2011 but one thing that I think we should never forget is that in the wake of that, in the wake of the ICC’s investigation and intervention in Libya, those Western states and those members of the international community more generally who had sided with the ICC completely disappeared. They just stopped doing anything that was particularly helpful to the ICC cases. So, I think you’re right that that obviously, I don’t think anyone should expect that Putin will end up facing judges at the ICC unless there’s something like some kind of regime change in Russia itself. But I think we should also be mindful that yes, it’s great that 41 states around the world, which is a third of the member states of the International Criminal Court referred Ukraine to the ICC, and I saw the health minister in the UK say, we’re going to help the ICC and give it all the evidence it needs to get Putin and others, et cetera. And this is all great. It’s really important but states, as we all know and Mark probably as well as anyone, have short memories. And while I hope that this continues and that the support continues, there have been times in the past where that support has very quickly dissipated when interests have pointed elsewhere. I don’t think Putin is the kind of guy that the West will be able to rehabilitate, but it wouldn’t surprise me if the support that we see for the International Criminal Court here isn’t fully stable through time as the conflict changes and perhaps moves to a more post-conflict phase.
What might justice look like in the case of Russia’s war crimes against Ukraine?
Mark Goldberg [00:22:01] So beyond the International Criminal Court, there are a couple other venues or opportunities in which justice may be pursued or considered in some ways. One is this idea floated, I believe, by the Ukrainians of setting up a special tribunal for the crime of aggression. And the crime of aggression is basically the crime of one country invading another for no reason. So, what we’re seeing now in Ukraine is a textbook example of the crime of aggression, and I don’t want to get too deep into the weeds but if memory serves correct, the crime of aggression was not initially included in the statute of the International Criminal Court, I think, owing to the objections of the United States. But then in 2017 or 2018 thereabouts, it was included, though, with certain restrictions on it, thus necessitating this idea of a separate special tribunal for the crime of aggression. Can you just maybe discuss what that Ukrainian proposal is, whether or not it has legs and what you know about it?
Mark Kersten [00:23:10] Yeah. So, the crime of aggression has always been in the Rome Statute. Its definition, its definition wasn’t so…
Mark Goldberg [00:23:23] I knew there was some kind of quirk there, and if I recall correctly, it was, you know, the Clinton administration signed the Rome Statute at this eleventh hour right before they left office, and they only did so because I think this crime of aggression was left undefined.
Mark Kersten [00:23:35] Yeah. I think even when Bill Clinton signed the Rome Statute, he said maybe in this exact same statement announcing that he had done it, that he did not recommend that Congress ratify the Rome Statute. So, a very symbolic action but I think it’s useful and important to know that the crime of aggression has always been there, but it’s absolutely correct that its definition basically was only added much later through negotiations, and the United States had a very significant impact on those negotiations. And the short of it, I mean there’s a lot of complexity that goes into it, but the short of it is that the crime of aggression is an extraordinarily neutered crime in the sense that the ICC can only investigate the crime of aggression if both the state that was invaded and the state that is invading are member states of the International Criminal Court. In this instance, neither Ukraine nor Russia are member states of the ICC. But you can imagine that if a state was planning to invade another, they might withdraw from the ICC and therefore not be liable for the crime of aggression. They might have to wait a year, but that’s probably not a big deal for a state that’s planning those types of activities. And there is a whole jurisdictional scheme where even if you were a member state, you still have to almost opt into the provision. So, the short of it is that this is very frustrating to people because what’s happening in Ukraine is a textbook example of aggression. Since the existence of the ICC and the Rome Statute, there’s probably been two kinds of textbook examples. One is the invasion of Iraq, and this is the second one. It just seems to fit the bill so perfectly—an illegal war and an illegal invasion of a country yet the ICC can’t do anything about it, even though it has this crime of aggression under its under its statutory scheme. So, I believe it was actually Philippe Sands, an international lawyer of significant repute, who proposed this idea that we should create an entire ad hoc tribunal like the tribunals that we saw in the 1990s in former Yugoslavia and Rwanda, but specifically oriented to investigating and prosecuting the crime of aggression. So, you would have the domestic courts and the units in Ukraine who are investigating and prosecuting war crimes, crimes against humanity, and other human rights violations. You would have the International Criminal Court that would be focused on war crimes and crimes against humanity. And then you would have, in addition, this ad hoc tribunal created by the United Nations or perhaps the Council of Europe, I’m not really sure on what the details are, but you would have this ad hoc tribunal and would only be investigating the crime of aggression, which would really mean that it would only investigate and potentially prosecute individuals from Russia and Belarus given Belarus’s role in allowing its territory to be used as a launching point for the crime of aggression or for the invasion.
What are the implications of Ukraine’s potential ad hoc tribunal on Russia’s war crimes?
Mark Goldberg [00:27:00] That potentially means the political leadership there, that’s like maybe a more direct way of going after the political leadership of Russia and Belarus through this special ad hoc yet to be created tribunal on aggression.
Mark Kersten [00:27:16] Yeah, that’s it and so it’s created quite an interesting conversation among international criminal lawyers and jurists and whatnot and proponents of human rights, with some people saying it should be created in other people, and I’d include myself in this group, who are very hesitant about this idea. I was taught in international law and criminal justice and transitional justice that, we shouldn’t be looking at ad hoc solutions, that permanent International Criminal Court exists, and hybrid courts exist because ad hocs aren’t particularly a good thing. And yet we’re back to talking about ad hoc, and I was also taught that we should be very wary of Victor’s justice, and we’re now talking about the possibility of putting 30 or 60 million dollars a year into an ad hoc court, which would structurally, legally, procedurally, politically only be oriented against Minsk and Moscow. And I’m worried about that. I think there’s a political economy in international criminal law and international justice in the sense that there’s a marketplace for these kinds of mechanisms, and I am worried about what it says when Ukraine, which has a functioning judiciary and domestic criminal justice system, and has the International Criminal Court, and that’s not enough so we’ve got to get an ad hoc. So, Ukraine gets all of these mechanisms, plus all of the other investigations set up and yet the atrocities in other states are ignored, be it Tigray or Yemen or whatever it may be. So, I’m a little bit worried about what this says about the project of international justice, and I’m not sure it’s necessary, and this will be my last point, the crime of aggression can be prosecuted by Ukrainian domestic authorities. It’s in their criminal code.
Mark Goldberg [00:29:23] I mean, that assumes that the Ukrainian domestic political authorities exist like a week from now, two weeks from now, that it’s not decimated by Russian.
Mark Kersten [00:29:31] Right, right. Yeah, that’s a fair point. My sense is that in some means they will be, but I think that would be the kind of game changer where maybe then you have to think about other options.
Can the International Court of Justice support Ukraine in its attempts to get justice for Russia’s war crimes?
Mark Goldberg [00:29:45] So one last venue that has been used so far by Ukraine against Russia has been the International Court of Justice, the ICJ. Now this is not a criminal court like individuals aren’t indicted, this is sometimes called the World Court or U.N. court, where members of the U.N. can sue each other and the ICJ can render down binding judgments. What sort of action have we seen at the International Court of Justice thus far?
Mark Kersten [00:30:16] Yeah, it’s good timing, this question, we were talking about it just before and, you know, Ukraine basically brought proceedings in front of the International Court of Justice against Russia in relation primarily, as I understand it, around Russia’s justification for invading Ukraine in the first place. Putin basically made these allegations that there’s genocide happening against ethnic Russians in the east of Ukraine and therefore this is one of the justifications for invading the country. Putin has done this before in Georgia and in Crimea. He’s often used kind of the language of humanitarian intervention to justify aggressive military actions and actions that are illegal under international law, but this is what he did. One of the things that Ukraine did is it said, ‘this is just gobbledygook and it’s just completely farcical that this genocide happened.’ And so, it brought Russia to the International Court of Justice and claiming if that claim, if that justification is groundless, then the invasion itself is illegal. And today, the International Court of Justice, very quickly, I should add, provided a decision which is aimed at kind of injunctive relief like provisional measures. And it went further, as far as I can tell from the ruling—and it just came out an hour ago or something—but it looks like it’s gone further than even Ukraine would have wanted. And it basically tells the Russian Federation to stop its military operations in the country immediately and to stop supporting any kind of military or irregular armed units which may be involved in the conflict itself. Now there’s the question of, is that going to lead to anything? My guess, in the short term, at least, probably not. I understand that these decisions can only really, truly be enforced by the Security Council on which Russia sits so it’s unlikely that these provisional measures will be enforced. But I do agree with others like Mike Becker and others who follow the ICJ more closely than I do certainly, that it’s about getting another drop in the bucket and that whether it’s the International Criminal Court, the commission of inquiry that the Human Rights Council set up with respect to Ukraine, the companies fleeing Russia, the new sanctions or this latest ruling on provisional measures with respect to Ukraine by the International Court of Justice, you’re really filling the bucket with so many drops and each one may be a drop but I guess you have to fill the bucket with drops, and that seems to be what’s happening. And I think even if one venue is kind of stuck, we can’t get Putin to The Hague, we can’t get these provisional measures by the ICJ enforced, together they’re doing something that I think is almost unprecedented when it comes to international law and international justice efforts.
Mark Goldberg [00:33:51] Well, Mark, thank you so much for your time. This is very helpful.
Mark Kersten [00:33:55] Yeah, my pleasure. Thanks for having me.
Mark Goldberg [00:33:58] All right. Thank you all for listening. Thank you to Mark Kersten for joining me on the podcast again. I always appreciate his insights and thoughts on all things related to the International Criminal Court and international criminal justice. All right, we’ll see next time. Thanks, bye!