The international response to Russia’s February 2022 invasion of Ukraine has resulted in the highest level of support for the International Criminal Court (ICC) since its creation 20 years ago. Forty-three states parties to the Rome Statute, the ICC’s foundational treaty, have referred the conflict to the Court for investigation. States — both state parties and non-state parties to the Rome Statute — have stepped up to support investigative efforts through financial resources and intelligence. And the United States has expressed an increased openness to supporting the Court’s efforts. This response has the potential to significantly strengthen the ICC’s ability to deliver accountability to perpetrators and justice to victims in Ukraine — and beyond.
It is in this moment of opportunity that the U.S. Institute of Peace convened an expert discussion with ICC Prosecutor Karim Khan and Ambassador David Scheffer, the first U.S. ambassador-at-large for War Crimes Issues and the head of the U.S. delegation to the U.N. talks establishing the ICC. The discussion marked Khan’s first official visit to Washington since his election in 2021.
The ICC’s Progress, and the Prosecutor’s Priorities
In the 20 years since its formation, the ICC has made progress in pursuing accountability for mass atrocities. The Office of the Prosecutor (OTP) has brought cases against heads of state, reaffirming that no one is immune from criminal liability for atrocity crimes. Where national courts have been unable or unwilling to address atrocity crimes, like those committed in Darfur, the OTP has brought cases against senior commanders alleged to be responsible for the violence. ICC decisions have expanded international jurisprudence on atrocity crimes such as the recruitment of child soldiers, and the ICC has sentenced perpetrators from Mali, the Central African Republic and the Democratic Republic of Congo. According to Scheffer, now a senior fellow with the Council on Foreign Relations, the Court “has established a fairly significant record of investigative work, of prosecutions, of jurisprudence that demonstrates due process of rights for defendants, [and] that demonstrates the reality of acquittals for defendants after serious scrutiny.”
Despite this progress, the ICC has been subject to its fair share of criticism. To date, all ICC indictments have been issued against African defendants, although investigations are ongoing in states in other regions, prompting criticism that the court inappropriately focuses on Africa. The ICC has also been criticized for the amount of time it takes to resolve cases and the cost of its proceedings. Prosecutor Khan recognized such criticisms in discussing the priorities of his tenure as ICC prosecutor, which will run through 2030. He recognized that the ICC is not perfect, and there is a need to be critical, including self-critical, about systemic inequalities in the world, “including contradictions in the application of international law.” Khan identified a need to “redefine success” for the ICC, moving away from the idea of the ICC as an “apex court” that can handle prosecutions without partnerships from states and regional bodies. To that end, he established as a priority for his tenure strengthening the OTP’s role as a hub for national courts to support national efforts to investigate and prosecute atrocity crimes. Such efforts may decrease impunity and allow the ICC to better fulfill its role as the court of last resort. He also recognized a need for the OTP to better manage public expectations around the investigative process to provide the OTP with the space to conduct investigations with integrity, professionalism and in line with principles of prosecutorial ethics.
International Support for ICC Prosecutions in Ukraine
The international community’s unity around the invasion of Ukraine has provided a much-needed boost to the ICC’s efforts. According to Scheffer, the 43 state party referrals of the conflict in Ukraine “broke the mold of state party hesitancy” to submit referrals to the Court. Given that the Court had jurisdiction over crimes committed since February 2022 through Ukraine’s 2014 agreement to an ICC investigation into potential crimes committed following Russia’s invasion of the Donbas, these referrals underscore the confidence of the international community in the ICC’s ability to respond to these crimes as well as the outrage over crimes committed during the invasion. The invasion of Ukraine has also provided an impetus to discuss how the United States could complement the ICC’s work through U.S.-led prosecutions.
States, including the United States, have also provided the OTP with investigative support, including expertise and intelligence sharing. Several states have also agreed to provide financial support to the Court, and private companies like Microsoft have agreed to support ICC efforts to store, analyze and maintain the security of collected evidence. Experts in the United States have called for the secondments of Department of Justice prosecutors and former war crimes prosecutors to The Hague to support ongoing investigations and ensure the Court is fully staffed for future trials. Such support could include efforts to coordinate evidence collection efforts to prevent re-traumatization of victims resulting from overdocumentation, a need directly recognized by Khan. These contributions stand to make a significant contribution to the Court’s work and the ability of the OTP to investigate fully the alleged crimes.
For its part, the OTP has demonstrated Prosecutor Khan’s commitment to strengthening complementarity with national jurisdictions in responding to ongoing atrocities in Ukraine. The OTP has actively coordinated with and offered technical support to ongoing investigations by the Ukrainian Prosecutor General’s Office. Further, the OTP recently joined the joint investigative team created by the European Union Agency for Criminal Justice Cooperation (EuroJust), the first time that the OTP has engaged in a joint investigative effort.
The Potential Impact of the Ukraine Investigations on the ICC’s Work Globally
The progress of the OTP’s efforts, and its ability to maintain support for its investigations into atrocity crimes in Ukraine, stand to significantly impact the ICC’s work globally. Ukraine is far from the only pressing investigation before the OTP, which is currently investigating crimes committed against civilians in Afghanistan, Bangladesh and Myanmar, Libya, Venezuela and the Philippines. Increased technical, financial, and material support for the ICC in response to crimes committed in Ukraine may directly support ongoing investigations in other contexts. While technical support may be limited to the situation in Ukraine, Prosecutor Khan has stated that he will not accept earmarks for particular investigations for financial and material support, meaning that such support would be applied across investigations to ensure that the OTP is better able to meet the demands of rigorous investigative processes. Moreover, the precedents set through the OTP’s Ukraine efforts in establishing a hub for state-led investigations, coordinating the collection of evidence to protect victims and witnesses, and collaborating with different investigative efforts, such as the Eurojust joint investigation team, may be applied to other situations, improving the ability of the ICC to support national investigations and to collect a broader range of evidence.
Expectation management will be critical both to maintaining support for the OTP’s Ukraine efforts and broadening support for the ICC’s efforts globally. The OTP will face the tension between thorough investigative processes, the demands of victims for accountability and reparations, and international interests in seeing perpetrators brought to justice. Playing a role as a hub for state investigations will ease this tension somewhat, supporting the OTP in establishing what Khan described as a “common front of legality” that decreases impunity for atrocity crimes by improving complementarity across states in prosecuting them. Ultimately, however, support for the ICC will be secured by delivering on its mandate — rigorous investigations and prosecutions of alleged perpetrators, in Ukraine and beyond.