HAGUE NOTIONS — A pregnant woman and her baby have died after a maternity hospital was bombed in Maripol, Ukraine, last week. The horrifying images of the woman being carried on a stretcher from the hospital have been seen around the globe, adding to calls for Russian President Vladimir Putin to be investigated and prosecuted for war crimes. The U.N. Office of the High Commissioner for Human Rights reports more than 600 civilian deaths in Ukraine. The International Criminal Court has already taken the first steps to investigate Russia's attack on Ukraine and its civilians. ICC Prosecutor Karim Khan announced his court's probe on March 2, after dozens of member states called for him to take action. Nightly reached out to Luis Moreno Ocampo, who served for a decade as the ICC's first prosecutor from 2003 to 2012, to talk about where this investigation could go next. This conversation has been edited, and Nightly's annotations have been added in italics. How would the ICC prosecute Russia for its invasion of Ukraine? The most obvious crime is called aggression crime — invading a country. That's what Russia is doing. The problem is that there is no legal possibility to investigate Russia for aggression crimes because Russia is not a member of the international court. In 2017, the ICC gained jurisdiction over the crime of aggression — what was seen as a gap in the court's power and a way to deter war. But only 43 states have ratified the aggression amendments, meaning only the participating parties could be investigated for aggression crimes. The other option is to investigate war crimes. Attacking civilians is the most obvious case. In this case, ICC has jurisdiction, because in 2013, Ukraine accepted ICC jurisdiction. The ICC was established in 2002. Now, 123 countries are members, which allows the ICC to investigate and prosecute war crimes, crimes against humanity, genocide and the crime of aggression committed by their nationals or anyone else on their territory. While the U.S. participated in negotiations that led to the court's founding, it was one of seven countries — including China, Iraq, Israel, Libya, Qatar and Yemen — that voted against the treaty that established the ICC. Why do you think there is a lack of support for the ICC from the U.S.? The U.S. rejects any international organization limiting its discretion. It promoted the U.N. Security Council with veto power. But the ICC was a profound challenge to the defense strategy establishing military forces and CIA activities around the world. What are the challenges of investigating war crimes? The problem is you have to not just establish that civilians were killed, but you have to show the instruction to kill the civilians. You won't just need information about what happened on the ground, you will also need information about who ordered what. We can analyze a specific bombing, specific cases, and we need to understand the chain of command in the Russian army. Who is the person in charge of the operation in Ukraine? Who is the commander on the ground? So the likelihood of Putin himself being held accountable through the ICC is quite slim. With war crimes, Putin is not officially giving instructions. So in building the criminal case, you would need evidence not just of the people who died, but you would need to show who decided to kill them. So maybe not Putin, but some general could be charged. It seems like social media could play a key part in this evidence collection. The previous prosecutor, Fatou Bensouda, indicted the Libyan military commander because of social media videos showing a man shooting civilians. So there's a precedent. How long will it take for the ICC to investigate this case? I imagine an active war zone could slow the investigation. It depends. In the Libya case, we did it in three months. The world was united and people were supporting this. So we had information, we collected testimonies and we did it in three months. How long it would take in this case would depend on the evidence. Conflict is a huge challenge, but it's a normal challenge for the ICC. We investigated in Uganda, the Congo, while the conflict was ongoing. We investigated Libya in the middle of a rebellion. Of course, it's a mess but that's what the ICC is prepared to do. It seems that you still have a lot of faith in this institution. I don't have faith. I was the first global independent public servant, and I remember it vividly, a German prosecutor told me, "Oh, my god, you're not independent. You're alone." Yes. So I see what we could do, but also I see the missing pieces. There's nothing internationally except ICC. I know the potential. I know the difficulties. I'm an optimist? No. I'm totally skeptical. I'm desperate. I'm frustrated. Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com. Or contact tonight's author at mward@politico.com , or on Twitter at @MyahWard.
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