The cots stood empty, the row of cubicles crammed with toys and small shoes. On the walls were children’s drawings; in the distance the thud of shelling.
A British barrister, in flak jacket and helmet, stared round the abandoned Ukrainian orphanage whose children are thought to be among thousands abducted by the Russians.
As a father of three, Karim Khan was visibly moved. As prosecutor of the International Criminal Court (ICC), he could do something about it.
“You can read reports and see photos but there is nothing like being there on the ground,” Khan, 52, said on his return from the front line, on his fourth visit to Ukraine since the Russian invasion. “In your mind’s eye you juxtapose the children, the sounds of life, with the empty carcass of a building and the empty cots, and, opening cupboards, you see little shoes and their toys and you realize these are not numbers, these are human beings and think about what they went through and know this is what the law has to protect.”
Days later the ICC took its first step toward doing that, based on evidence submitted by Khan, when it issued an arrest warrant for Vladimir Putin, charging him with war crimes. It held the Russian president responsible for the mass abduction and deportation of Ukrainian children from orphanages and from families who thought they were going to summer camps.
As Khan’s phone pinged with congratulatory texts and media requests last Friday night, he said he felt “mixed emotions” because of the tragic circumstances. He understood the scale of the challenge facing the court.
“We’ve hollowed out the phrase ‘never again’ since Nuremberg [the post-war trials of Nazi leaders] and made it an empty promise,” he said. “We’ve failed time and time again.” The court had to become a more effective deterrent than it had been in the past, and to speed up its proceedings so that “law doesn’t necessarily have to take decades to be felt”.
You realize these are not numbers, these are human beings.
Last Friday’s warrant has infuriated the Kremlin and made Putin into a pariah in much of the world, one of only three sitting heads of state to be indicted, following Slobodan Milosevic of Serbia and Charles Taylor of Liberia. But many have dismissed it as symbolic, arguing that the Russian leader will never end up in the dock.
Khan, however, looks to history. “I don’t have a crystal ball but I always say the law is not as strong as we want but not as weak as many think,” he said. “I am an optimist and think it’s not a naive optimism. When the Yugoslav tribunal was established it was thought there was no hope of Milosevic, [Ratko] Mladic or [Radovan] Karadzic being brought to The Hague [for the war in Bosnia] yet they were and were convicted.
“People thought when Charles Taylor was in Liberia, a sitting president, it was a fool’s errand to try to have accountability [for atrocities in Sierra Leone], yet there were charges and even though he then fled to Nigeria, he was arrested, brought to special court in Freetown, taken to The Hague and tried and is now in Durham prison. So it can be done.”
The indictment will almost certainly limit Putin’s travel. The 123 member states of the ICC — a group that does not include Russia — have an obligation to arrest him were he to step on their soil, but any other nation can do so too.
If Putin does not appear before the court in The Hague, there are other options, including something called “confirmation in absence” — which Khan recently employed for the first time in the case of Joseph Kony, the commander of the Lord’s Resistance Army in Uganda, who has been on the run since being indicted in 2005.
“We can use this device for people who thumb their nose at justice, or individuals who flee jurisdiction or wantonly refuse to surrender, so there can be judicial proceeding in which witnesses and other evidence can be heard and scrutinized by independent judges and a determination made. If the person then comes into the hands of the court, you don’t start all over again but go straight to trial.”
The indictment of Putin, along with his children’s commissioner, Maria Lvova-Belova, for the forced abductions may be just the start. Ukrainian prosecutors have cataloged more than 73,000 war crimes and compiled hundreds of dossiers, naming more than 600 Russians as suspects — many of them high-ranking political and military officials such as the defense minister, Sergei Shoigu.
“The entire country is a crime scene,” Khan said. “Everyone has seen on their TV or read about what’s taken place since February 24 last year and traveling round Ukraine, you see in so many different ways, different crimes which may been committed and we have to investigate — whether torture or sexual violence, executions of soldiers who have laid down arms, attacks on maternity wards and targeting of power stations and civilian buildings. The list goes on.”
The world must not miss a unique chance to restore faith in global justice, he adds. “It represents an opportunity for us to succeed but also a risk because if we can’t show that international justice can play a role here when the world seems on a precipice — and I don’t think that’s hyperbole — then there will be no confidence in international institutions.”
Forty-three countries have referred the Ukraine invasion to the ICC. Yet astonishingly, for all the expressions of outrage, Khan’s office in The Hague has no extra funds to prosecute crimes in Ukraine. “I didn’t get a euro of new money for central budget last year, not one euro of new money for staff to be in the field,” he said.
For this reason, tomorrow Dominic Raab, the justice secretary, will co-host with his Dutch counterpart a pledging conference in London of fellow justice ministers from 40 countries aimed at raising funds and material resources such as extra investigators for the ICC to bring justice to Ukraine.
“If we don’t start delivering and giving the resources to maintain confidence in the UN or the ICC, we’re playing Russian roulette,” Khan said. “We’re gambling with something we may not be able to inject confidence in later when it’s completely evaporated so I think this is a defining moment. We have to do better.”
In Ukraine, technology is already playing a larger role than ever on the battlefield and in the propaganda war. Khan believes it can also provide a model for investigations. “We are using tech in new ways so we can ingest a greater variety of data sources from social media like TikTok and Facebook, documentary evidence and battlefield evidence, using voice to text translation for phone intercepts etc to build our cases for our judges.” He is confident his office can make a difference, if it is given sufficient resources.
Last Friday’s warrant has infuriated the Kremlin and made Putin into a pariah in much of the world.
Bringing Putin to book would be an astonishing achievement for the Edinburgh-born son of a dermatologist and a nurse, who studied law at King’s College London. He went into human rights law because of his horror at events in the Balkans, starting out in the office of the International Criminal Tribunal for the former Yugoslavia, but also because his family are from the Ahmadiyya sect that has long faced persecution in Pakistan, which refuses to consider them Muslims.
He has also defended perpetrators, including Saif Gaddafi, the son of the Libyan dictator, and Taylor, something he insists is an advantage.
“Keir Starmer was a well-known defense counsel when he became director of public prosecutions,” he said. “The fact I have had the privilege of representing victims, of prosecuting, and also of defense, I view very much as an asset as I’ve had those different perspectives.”
His ultimate goal is to resurrect the battered reputation of the ICC, which in 20 years of existence has spent more than $1.8 billion yet convicted only ten people. In some areas such as the use of sexual violence as a weapon of war, it has convicted only one person, although during those years, hundreds of thousands of women have been raped in war.
When Khan was appointed in 2021, he insisted that tackling this, along with violence against children, would be his priority. “We should be ashamed of ourselves that we are spending billions to go to the stars while leaving aside the promise that’s becoming an empty promise: never again. As we speak, girls and boys, men and women, are being raped around the world and what are we doing about it?”
Not only is the ICC under fire for its failure to bring people to justice but for focusing so much on African warlords that some African nations have accused it of “hunting Africans”. Its first non-African indictment was in 2016. Many believe it lacks the will to hold big powers such as the United States to account, for example over civilian killings in Iraq and Afghanistan, while Palestinians feel their cases against Israel have been deliberately left on the back burner.
Khan insists he is changing things. “I’ve been part of that chorus of criticism in the past,” he said. “I think it’s unquestionable that the court has to improve and the office has to improve. When I stood for election, it was on a ticket of change and reform.
“We have already made significant strides,” he said. “I opened the case of Ali Kushayb [Muhammad Ali Abd-al Rahman], the first trial in relation to Darfur, and closed it within nine months and I will try to do that across the board.”
Ali Kushayb is accused of 31 counts of war crimes and crimes against humanity committed while commanding the Janjaweed militia in 2003 and 2004, created by the regime of Omar al-Bashir, then the president of Sudan, to crush rebels. The Janjaweed killed and raped tens of thousands of people, burned villages and poisoned wells, leaving millions still displaced.
Khan said he had also applied for new warrants over Libya and Burundi as well as the confirmation hearing in absence for Kony. “We’re not a single situation court,” he said. “The world is now fixated on Ukraine in a way it was a few years ago on Syria but we mustn’t forget the rest.”
Khan was in a Rohingya refugee camp in Bangladesh when he heard of the Russian invasion. “There’s outrage each time at these situations but the danger is it’s become commonplace because we’ve read about so many. Look at the Rohingya experience, look at the crimes of sexual and gender-based violence in the camps of Cox’s Bazaar, look at what’s going on in the DRC [Democratic Republic of the Congo] and other parts of the world … Afghanistan where there’s a clear denial of rights to a whole segment of the population.
“The danger is we’ve become anesthetized, we read it and say OK, that’s another one,” he added. “We don’t pause and ask well what are we doing about it and what can the law do? Well the court is not a silver bullet to solve all maladies but we — and the states that support us — need to start doing better if we’re not going to fall into an abyss of chaos and even wider conflagrations.”
Given that those who cross Putin have a tendency to meet unfortunate ends, Khan might be forgiven for fearing for his own future. He travels with security but insisted he would not be stepping it up. “Always I am concerned about the security of victims or witnesses but I don’t fear my own mortality,” he said. “I do my job and know what comes with the turf, and will continue to do it to the best of my ability.”
In the meantime he will be keeping away from any tenth-floor windows.
Christina Lamb is an award-winning foreign correspondent for The Sunday Times of London. She has written 10 books, including I Am Malala: The Girl Who Stood Up for Education and Was Shot by the Taliban, co-authored with Malala Yousafzai
