International Criminal Court: What's its role in prosecuting war crimes?

“....the minute we talk about tactical nuclear weapons, it's not just the Twilight Zone, it's the eve of a nightmare.” Karim Khan

There has been further violent escalation in the war in Ukraine, including the targeting of civilians and civilian areas and there is a loud cry for international justice, both for the war crimes committed on Ukrainian territory and the deterrence.

So when will those responsible for these crimes be held to account for their actions? And where will the trials for these crimes take place?

In February 2021, Karim Khan was elected chief prosecutor of the International Criminal Court in The Hague for a nine-year term. In this edition of The Global Conversation, Euronews Correspondent Shona Murray speaks to Karim Khan about the role of the ICC in The Hague.

Full interview here

I'm joined now by Karim Khan, chief prosecutor at the International Criminal Court here in The Hague. Chief prosecutor, in light of what we've seen in the last few days in Boucha, we saw the U.N. Human Rights Committee investigate nearly 30 towns where they found evidence of execution, of rape, of children as young as four, of adults in their eighties. What is the role of the ICC in prosecuting these grievous crimes?

**Karim Khan:**The role of the prosecution is to make sure that there is accountability, that there's no safe haven for impunity. There's not a growing belief that anything can take place. There's no consequence when crimes take place. And that requires us to be on the ground. It requires us to investigate and get to the truth and then to have the stamina, to use the processes of the court to present cases to independent judges for review. If we say crimes have been committed.

Because we have seen Ukraine has prosecuted some people within their national courts. But I guess the point is, when will we see generals, soldiers and military personnel responsible for these crimes in a courtroom?

**Karim Khan:**Well, that's a function of evidence. But certainly, I've said it before my election, and I commencement my term in June of last year, that we have a responsibility to show international justice is not some theoretical construct. It actually is felt by the victims and those that need the law the most, the most vulnerable, the children, the women and the men that are civilians, that are suffering hugely, that are and, you know, feel free and certainty in Ukraine, but in so many parts of the world. So I'm quite cognisant of the fact that international justice cannot be seen as a historical exercise looking into inquiries of past allegations of historical interest.

I mean, would you envisage a tribunal here in The Hague in compliment to the national court system of Ukraine? Is that how it is? That's what's being called for something like what we saw with Yugoslavia, Rwanda, and so on.

Karim Khan: Certainly, you're right, the principle of complementarity is a bedrock principle. In that regard, we've had very good cooperation with the authorities in Ukraine. We are working with them closely. We are independently conducting our investigations because, of course, we have a certain legal architecture that Ukraine doesn't have. We do have provisions for genocide, war crimes, and crimes against humanity. We do have the capacity to charge not just direct perpetrators, the people that may be alleged to rape or kill or bomb, but military or political superiors. That is something that we have as a legal tool under the Rome Statute, and we will use it if the evidence calls for that.

Because, of course, you mentioned that this is echoes of Nuremberg. Who said that at the United Nations? I mean, potentially. Are you saying that Vladimir Putin, for example, the president of Russia, could find himself in the war crimes tribunal here in The Hague?

Karim Khan: Well, it's clear since Nuremberg that neither is superior orders defence, nor is the official position of an individual as a General or as a President or as a Prime Minister. Grounds for immunity. The International Criminal Court, as an international court recognised by the Security Council, used by the Security Council in Sudan, in Libya, in other cases has jurisdiction to deal with any individual that has committed crimes or has prevented or failed to punish crimes within our jurisdiction.

That would also mean their immune in the case of any peace deal or negotiated settlement between Ukraine and Russia.

Karim Khan: Well, there's no immunity for international crimes. And one of the Nuremberg principles, as you'll know, is that there's no statute of limitations for war crimes or crimes against humanity. So, you know, in terms of crimes that are Hostis humani generis that are crimes against humanity, that is, you know, that violate these basic principles of our humanity. They can't be a safe haven and the law has a role and we will do our part.

And from your own evidence, what you've seen yourself personally and so on, as well as the rhetoric that we're hearing from Russia, from Russian generals and others, a lot of legal experts say this is genocide ideology. Is that something that you feel you may be investigating?

Karim Khan: We're in a very critical moment, the minute leaders talk about using violence, using bombs, using the bullet. It's a matter to pause and think where we going. But the minute we talk about tactical nuclear weapons, it's not just the Twilight Zone, it's the eve of a nightmare. And we need to take it extremely seriously. And I think the law has a role to play. This is not a Hollywood movie. This is not something that is some drama. This is something that is up close and personal to many. And the Ukrainians that are scattered now throughout Europe, that are out of their homes, that are separated from their loved ones. Those members of my team that are in Kyiv are in basements wondering when the next missile will hit. These civilians deserve every protection.

What is the process then, if there is evidence of breaches of the Geneva Convention by specific individuals? Is there a process then where those people can be arrested on Russian territory, on Ukrainian territory?

Karim Khan: I'm not going to go into any specific scenarios, but certainly it's well known and we've seen it in the former Yugoslavia, in Rwanda, we've seen it in this in the International Criminal Court, that if I make a determination after investigations that there are grounds to believe an individual has committed crimes, I can apply for a warrant. Judges will determine whether or not the standard is met. And then we go into a stage of looking at arrest option possibilities. Or people voluntarily surrendered. We've had heads of state that have voluntarily surrendered before this court.

And just one final question before I let you go. As a legal expert, we saw the Kerch Bridge being bombed in occupied Crimea. Is that a legitimate military target, in your opinion, given that we are in the middle of a war and this is occupied territory?

Karim Khan: I'm not going to comment on that because actually, I don't even know what took place. I've read from the public information a number of scenarios between, you know, an accident, to sabotage, to, you know, a whole variety of issues.

But, you know, in terms of what that attack may constitute, I'm not going to, you know, how enticing it is to make an opinion on your programme about whether or not that one instance may be a crime or may not be a crime, whether it was a legitimate target or not.

One thing is clear you cannot deliberately, intentionally target civilian objects, schools, and hospitals, or places of residence of civilians unless they're being used to gain a distinct military advantage. And even then, there is a rule of proportionality. And this is something, you know, applicable. And of course, you can extrapolate from that in terms of a variety of different targets, whether they're bridges or energy locations. But spreading terror is not allowed.

Karim Khan, chief prosecutor here at the International Criminal Court, thank you very much for joining us on The Global Conversation.

Karim Khan: Thank you for having me.