International Criminal Court prosecutor on the pursuit of justice for Russian war crimes

Attorney General Merrick Garland traveled to Ukraine this week to review U.S. efforts to help prosecute Russian war criminals. Ukrainian officials say they are examining more than 15,000 possible war crimes since Russia’s February invasion, while the U.S. and Europe are also supporting an International Criminal Court investigation. ICC Prosecutor Karim Khan joins Nick Schifrin to discuss.

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  • Judy Woodruff:

    Attorney General Merrick Garland traveled to Ukraine this week to discuss U.S. efforts to help prosecute Russian war criminals. Ukrainian authorities say they are investigating more than 15,000 possible war crimes committed by Russia since the country invaded in February.

    The U.S. and European countries are also supporting an International Criminal Court investigation.

    Nick Schifrin talks to the ICC prosecutor about the pursuit of justice.

  • Nick Schifrin:

    The horrors of a horrific war, more than 1,000 Ukrainians in Bucha bound and executed by Russian soldiers buried in a mass grave, a theater in Mariupol destroyed by a direct Russian strike, as hundreds of women and children hid inside, outside, their city obliterated, many residents forcibly deported into Russia.

    Kyiv has already found a Russian soldier guilty of killing a Ukrainian citizen and sentenced him to life. But Russian war crimes are widespread and include the killing, torture and rape of civilians during armed conflict. Those are the violations set out in the 1998 Rome Statute that created the International Criminal Court.

    George W. Bush, Former President of the United States: The International Criminal Court is troubling to the United States.

  • Nick Schifrin:

    In 2002, President George W. Bush withdrew U.S. support.

    But, today, the U.S. is aiding ICC prosecutor Karim Khan's investigation in Ukraine, where he's working with top prosecutor Iryna Venediktova.

    I spoke to Khan today from The Hague.

    When you opened your investigation in Ukraine on February 28, you said that there was a reasonable basis to believe alleged war crimes and crimes against humanity have been committed.

    Today, almost four months later, do you also believe that possible genocide has been committed?

  • Karim Khan, Prosecutor, International Criminal Court:

    It's a great question, Nick, but we're at the early stages of an investigation.

    Analysts, investigators, lawyers, forensic experts have been and are on the ground. And we will in due course make determinations, but we can't put the cart before the horse.

  • Nick Schifrin:

    Some of the atrocities we have seen, including Russia forcibly deporting Ukrainian children, are specifically written into the Genocide Convention, Russia trying to destroy entire Ukrainian cities.

    Even if it is early in the investigation, do those kinds of acts become the basis for a genocide investigation?

  • Karim Khan:

    We have seen and were looking into a number of allegations, including the allegations regarding the unlawful transfer of civilians, and children in particular.

    And they could give rise to legal liability on a number of grounds. But I'm not going to start pontificating on what are theoretical possibilities. There are real — there is real suffering. That's not theoretical. There's real suffering we're seeing.

    What we have to do is make sure we put the law into action. And the law has to have meaning for those that are in shelters, those that are feeling insecure, those that have lost loved ones are — or are today, as we speak, facing bombardments or different conduct that may constitute international crimes. And I think that's what we're focusing on.

  • Nick Schifrin:

    How difficult is it to collect evidence when the crime scene, as you have called it, is a war zone?

  • Karim Khan:

    Well, it's not a walk in the park. It's difficult, because I have got a duty of care to staff.

    But it's not impossible. We saw effective investigations in the former Yugoslavia. I think we have seen time and time again that there can be accountability. Nobody believed, Nick, that, when the guns were firing in the Balkans, that Milosevic, President Milosevic or Karadzic or Mladic would ever be brought to an international court.

    Nobody thought at the height of the genocide in Rwanda that the former Prime Minister Jean Kambanda and others would be brought to court.

  • Nick Schifrin:

    Are you collecting evidence that you believe could lead to any kind of prosecution of President Putin himself or any senior Russian officials around him?

  • Karim Khan:

    All individuals have responsibilities, from a foot soldier to a general to a civilian superior.

    Everybody involved in conflict that has engaged in hostilities or has responsibilities to prevent or punish, they can be held accountable. One of the legacies, Nick, from Nuremberg was the principle that there's no statute of limitations for war crimes.

    So I think we need to have the perseverance, but also we need to find new ways, innovative ways, to mobilize the law as soon as possible.

  • Nick Schifrin:

    There is no statute of limitations, but there are, of course, jurisdictional questions.

    You won't prosecute any crime that Ukraine's prosecutor general is prosecuting. You visited her multiple times. You're working closely with her. Have you and her made any kind of decision yet about how to divide some of the prosecutions up?

  • Karim Khan:

    Yes, we have had many discussions.

    I think Ukraine has a fantastic prosecutor general in Iryna Venediktova. If her state piece is willing and able, they have the first right and indeed the first responsibility to investigate and prosecute crimes on their territory.

    But we are — given the scale of criminality, which is absolutely massive, whatever the level, we will move forward and we will have discussions with our Ukrainian counterparts and decide, if there is evidence, what is the best forum? Is the best forum the ICC or is it domestic court? For this nature, the reality, everybody has to have a role.

  • Nick Schifrin:

    Let's talk about some of your coordination with the United States and the Biden administration.

    Senior U.S. officials tell me that you have submitted requests for intelligence. U.S. law prevents any administration from funding the ICC, but it doesn't prevent the U.S. from providing intelligence or people to the ICC.

    In general, do you believe that the Biden administration is providing as much assistance to you in this investigation as U.S. law allows?

  • Karim Khan:

    We have had good communications and good meetings with the U.S. administration and, in fact, bipartisan.

    If we can work together, we can get more justice than we have at the moment. But, of course, I think there's always areas for significant improvement. I'm not going to — in an ideal world, I would make many suggestions, but it's not my prerogative.

    There are conversations going on. And I hope, of course, we can build trust and we can get evermore support from all state parties, including the United States.

  • Nick Schifrin:

    Pursuing someone like President Putin or other senior Russian officials could be done by another crime, the crime of aggression.

    The ICC, of course, does not have jurisdiction over the crime of aggression. But do you support Ukraine using the crime of aggression, which is in its legal code, or the creation of some kind of independent tribunal to use the crime of aggression against senior Russian officials?

  • Karim Khan:

    In terms of other entities, other mechanisms, I think there needs to be a dose of realism.

    The ICC has been here for 20 years. It's been historically under-resourced. It has a clear jurisdiction. And there are some perhaps unforeseen consequences or difficulties by creating other mechanisms.

    I think we should focus on mobilizing what is already here, what already exists. But we can become rather self-indulgent in creating things that we would like. I'd rather focus on what we have and put it into action effectively.

  • Nick Schifrin:

    Karim Khan of the International Criminal Court, thank you very much.

  • Karim Khan:

    Thank you so much.

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