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Brian Lehrer: Brian Lehrer on WNYC. As Russia continues to bomb civilian targets in Ukraine one rising question is whether Vladimir Putin is now a war criminal. If he is, can he be charged with war crimes and prosecuted in any way and can the threat of that save any lives in this war or deter war crimes elsewhere in the future? One complication of prosecuting Putin at the International Criminal Court, which deals with war crimes officially, guess who refused to join the ICC international criminal court system? Yes, the United States. Nonetheless, we have statements like this from Vice President Harris when asked about Putin war crimes last week when she was in Poland.

Vice-President Harris: Pregnant women, going for healthcare, being injured by, I don't know, missile or bomb in an unprovoked unjustified war? Absolutely there should be an investigation.

Brian: But who would investigate that the United States recognizes? On that and the larger issue of war crimes in Ukraine and elsewhere and how to stop them, joining us now is David Scheffer, director emeritus of the Northwestern university center for international human rights. He headed the Clinton administration's delegation to the International Criminal Court talks and actually had the title of Ambassador at Large for War Crimes Issues. He is also the author of the book, All the Missing Souls: A Personal History of the War Crimes Tribunals. Ambassador Scheffer, thank you for coming on again, welcome back to WNYC.

Ambassador David Scheffer: Thanks. It's a pleasure to be with you Brian.

Brian: There are certain behaviors during the war that are considered war crimes and we'll get to those, but you said in an NPR interview recently that Russia's war in Ukraine itself is illegal. Can you explain illegal why and under what set of laws?

Ambassador Scheffer: Yes, because it's a war of aggression and wars of aggression have been outlawed ever since world war II. They were prosecuted-- the crime of aggression was prosecuted at the Nurnberg and Tokyo tribunals. A total of 36 defendants were convicted on that charge and the prohibition on committing a war of aggression into the UN charter and into customary international law ever since.

Invading Ukraine with the Russian military, invading the territorial sovereignty of Ukraine, which has been so blatantly demonstrated through the exposure of this invasion by the media, clearly demonstrates that Russia [unintelligible 00:03:02] aggression that can be prosecuted under certain circumstances, which I can explain, but the point is one, we've now achieved a level of development in international law whereby individuals can be held responsible for that crime under certain circumstances.

Also of course there can be state responsibility for the crime. Namely that someday Russia may have to be-- well, would be liable for an enormous range of reparations owing to Ukraine for the commission of this crime.

Brian: You told NPR, you expect that war crimes charges will be filed against Putin himself and some of his generals and then the economic sanctions that much of the world has imposed will not be lifted until Putin and those generals have surrendered. Do you see any scenario under which Putin would actually give himself up to be tried as a war criminal?

Ambassador Scheffer: Oh, I think that's unlikely. I think what would have to occur is that ultimately Mr. Putin would have to be deposed internally from his position of power and the Russian people and other criminal insiders would see that it's to their advantage to actually surrender him if he's indicted by the International Criminal Court to the International Criminal Court.

This is similar to what occurred with Slobodan Milošević in Serbia, the sanctions were kept on, Serbia following Balkans war until he was surrendered and other senior officials, Bosnian officials like Mladić and Karadzic were surrendered to the [unintelligible 00:04:51] tribunal for prosecution. Sanctions were used as leverage then, but I must caution that of course, this is a different situation in that, I would suggest that there would ultimately be a graduated lifting of sanctions, the most important one being, or the most important condition being the withdrawal of Russian forces in Ukraine and the restoration of its sovereignty and territorial integrity.

Then in addition to that, certain sanctions might be kept in place until there's an ultimate surrender of indicted fugitives to face justice, but that's all in the realm of what the tool body of sanctions are and what might kept in place until that particular condition could be meet.

Brian: Right. That's a longer-term prospect, that's not going to stop the war in the short term in any way, doesn't sound like. Now we heard the clip of the Vice-President supporting a war crimes investigation of Russia and I see the International Criminal Court has received a formal referral for an investigation by 39 member nations regarding Russia in Ukraine, but as you know, the United States is not one of those 39 because we are not in the International Criminal Court.

Can you give us some of the history of that? You are the Clinton administration's ambassador to the International Criminal Court talks in the 1990s. Is that when the court was created?

Ambassador Scheffer: The Rome Statute [unintelligible 00:06:27] the constitutional document of the court was concluded in--

Brian: All right. Listeners, obviously were having a problem with ambassador Scheffer's line. I think what we should do here is take a short break and call him back. We have another way to hook up his line that might be better, so let's see. Is that what we want to do? Okay, we're going to do that. We're going to rehook Ambassador Scheffer's line. Stay with us, Brian Lehrer on WNYC.

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Brian: Brian Lehrer on WNYC. This is WNYC FMHD and AM New York, WNJT FM 88.1, Trenton WNJP 88.5 Sussex WNJY 89.3 net com, and WNJO 90.3 Toms River. We are New York and New Jersey public radio. Do we have Ambassador Scheffer back? What's that? Okay, we're going to-- Just a few seconds and he will be rehooked of course listeners. All right, Ambassador Scheffer, we have you back now. Let me cut to the chase since we lost some of our available time there. Why isn't the United States a party to the International Criminal Court system?

Ambassador Scheffer: We signed the Rome statute of the court on December 31, 2000 with the intention of becoming a party to the court. That was during the Clinton administration. The George W. Bush administration, essentially nullified that signature two years later saying that it should not be the intent of the United States to become a part of the court or to do anything that would enhance its viability. That was a decision by the George W. Bush administration. We've gone through many stages since then where the Obama--

Brian: If that was two years after 2000, that was around the time they were getting ready to launch the Iraq war.

Ambassador Scheffer: Exactly. That would've been a huge problem if we had been party to the court with the intention of invading Iraq. That's what happened and that's why we're not party to the court. I should say that over the years, under success administrations, at least some of them, we have provided a tremendous amount of indirect support and diplomatically and with arrests of inditees et cetera, to the court.

There is a way for the United States to play an important role in support the court and that is exactly what it's doing now with respect to Ukraine. It is not objecting whatsoever to the investigation of this matter by the International Criminal Court. Indeed, it's diplomatically supporting that investigation.

Brian: Now people have in fact called George W. Bush and as Vice-President, Chaney and their defense secretary, Donald Rumsfeld and other top aides war criminals for things that they ordered or allowed during the Iraq war. I gather that a war crimes tribunal of some in Malaysia found them guilty of torture and other crimes. You know about Henry Kissinger who served under Nixon and was widely suspected of war crimes, the journalist Christopher Hitchens throughout the famous 2001 book, The Trial of Henry Kissinger in which he called for some official process against Kissinger for alleged war crimes and Cambodia and Chile and elsewhere.

If we live in glass houses, does it weaken our ability to effectively throw stones at Putin, even if he's guilty?

Ambassador Scheffer: Oh, that's indulging in what about-ism. I think we need to be totally transparent about the mistakes and the errors and the crimes that we've committed in the past. There's no reason not to be transparent about it, to be forthright about it. I've always thought that issues of this character should be properly investigated and if necessary, prosecuted even under federal law, but I think when something like this happens in Ukraine, it would be frankly disingenuous for the United States to stand aside and say that, "Well because of some of our historical events, which may be considered to be illegal, we're simply going to stand aside and not involve ourselves or make any judgements whatsoever about the conduct of other nations. "

That's not a plausible scenario for the progress of any country or of humankind itself. You do progress. We have progressed. There is an aggressive war in Ukraine and we need to call it out. If people want to accuse us of having committed war crimes in the past, go for it but we also need to accuse others of war crimes that are occurring presently.

Brian: In the biggest, let's say maybe 200 year view of history, are standards of behavior in war changing. Is war getting more humane if that's even possible under the pressure of international law?

Ambassador Scheffer: That's a very good question. I think I would say yes, but because we have a large complex of law now that needs to be complied with, the laws and customers of war, the conventions that are in place regarding how one conducts oneself during warfare and the protection of civilians and prisoners of war, et cetera, all of that is in place now, but there are times when leaders tend to turn a blind eye to that law.

That is what we see happening in Ukraine at this time and I think the best that we can do under those circumstances is ensure that the long game plays out, namely that ultimately, those who violate international humanitarian law, the laws of war, are ultimately held accountable for those crimes while in the meantime, the real issue is not bringing them to criminal justice, right now the real issue in Ukraine is actually stopping the aggression, pushing it back, saving the fate of the civilian population. That's not in courts of law, that's on the battlefield that that needs to take place. The long game is the justice game.

Brian: The long game is the justice game. Give me your best example in our remaining minute of a head of state-- I know you talked about Slobodan Milošević in Serbia a little while ago. What's your best example of head of state or the highest possible official of a country actually being held accountable for war crimes after the fact in a way that may deter others?

Ambassador Scheffer: Yes, that has occurred actually some times. Charles Taylor of Liberia was convicted for stoking the civil war in Sierra Leone in the 1990s. He is now in a British prison serving a 50 year sentence, which will carry through to his death and he was convicted by the Special Court for Sierra Leone, which was an International Criminal Court for Sierra Leone. Another example is Kabuga of Rwanda. He was the leader of Rwanda during the genocide. He was successfully convicted and he too was serving a life sentence.

Brian: There we leave it with David Scheffer, Director Emeritus of Northwestern University's Center for International Human Rights. He headed the Clinton Administration's Delegation to the International Criminal Court Talks and had the title of Ambassador at Large for War Crimes Issues and he is author of the 2012 book, All the Missing Souls: A personal history of the war crimes tribunals. Thank you Ambassador Scheffer, we really appreciate it.

Ambassador Scheffer: Thank you.

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