After more than a month of fighting in Ukraine, the United States this week formally determined that Russian forces have committed war crimes there, raising the prospect of potential prosecutions by the International Criminal Court, or ICC.
In the besieged city of Mariupol alone, thousands of Ukrainians have been killed, and civilian buildings, including a theater, an art school, and a maternity hospital, have been targeted by Russian bombs. The real death toll is believed to be far greater — potentially as high as 20,000, a Mariupol official said earlier this month — but a sustained shelling campaign has made casualties hard to confirm.
In Mariupol and across Ukraine, countless reports from Ukrainians showing mountains of rubble left from homes and buildings destroyed by Russian troops, as well as injured residents, have also circulated on social media.
Certain acts of war are considered direct violations of international humanitarian law, such as deliberately targeting health care facilities. The World Health Organization has verified 43 attacks on health care facilities that took place amid the conflict, with 12 people killed and 34 injured, many of whom were health workers.
Russia has consistently denied deliberately striking civilian targets, despite an increasingly vast body of evidence to the contrary.
Wednesday’s announcement by Secretary of State Antony Blinken, however, is a step further than previous, less formal accusations against Russia.
“Today, I can announce that, based on information currently available, the US government assesses that members of Russia’s forces have committed war crimes in Ukraine,” Blinken said in a statement. “Our assessment is based on a careful review of available information from public and intelligence sources.”
“We are committed to pursuing accountability using every tool available, including criminal prosecutions,” Blinken added.
Blinken’s designation raises a number of questions, including its implications for Russian President Vladimir Putin, who the State Department described as unleashing “unrelenting violence that has caused death and destruction across Ukraine.” It’s also very likely only the start of the process of reckoning with increasing reports of atrocities in Ukraine.
The US says Russia is committing war crimes. What does that actually mean?
Wednesday’s statement isn’t the first time a US official has suggested war crimes are occurring in Ukraine, but it’s the first with the full weight of the US government behind it.
According to Beth Van Schaack, the US ambassador at large for global criminal justice, the designation is the product of a thorough assessment of credible media reports of critical civilian infrastructure being destroyed by Russian forces in Ukraine, as well as intelligence reports on the conflict.
“The UN and other credible observers have confirmed hundreds of civilian deaths and we believe that the exact civilian death toll will be in the thousands,” Van Schaack said at a press briefing on March 23.
Ambassador at Large for Global Criminal Justice Beth Van Schaack provides background on the assessment that Russia forces are committing war crimes in Ukraine. “We are committed to pursuing full accountability for war crimes in Ukraine using all of the tools available to us.” pic.twitter.com/KA0mcv2lBx— Department of State (@StateDept) March 23, 2022
The designation also signals US intent to pursue accountability. As Deputy Secretary of State Wendy Sherman explained on CNN, even if the public “all feel it personally,” a strong body of evidence that proves war crimes were indeed committed by the Russian military must be submitted to the international court to have any real effect.
“In terms of international law, you have to have evidence, you have to have a body of proof that in fact there was intentionality,” Sherman said.
The formal State Department designation comes about a week after President Joe Biden made a more off-the-cuff remark about Putin himself. Biden described Putin as “war criminal” in public remarks on March 16, a label with which Blinken said he “personally” agreed.
The White House has so far avoided applying that label to Putin formally, citing ongoing investigations by international parties into the alleged war crimes committed by Russian forces, and White House press secretary Jen Psaki explained that Biden was simply “speaking from the heart” after seeing the images of war coming out of Ukraine.
Of course, there is a distinction between calling a sovereign state leader a “war criminal” in the moral sense and using that designation in actual legal terms — but Wednesday’s statement, which mentions Putin by name while accusing his forces of war crimes, is a step closer to formalizing the label.
"The president's remarks speak for themselves. He was speaking from his heart," White House Pres. Secretary Jen Psaki says of @POTUS's comments to reporters Wednesday calling Russian President Vladimir Putin a "war criminal." pic.twitter.com/jP1W2EaoDB— CBS News (@CBSNews) March 16, 2022
Legally, the term “war criminal” refers to a specific set of offenses and carries the potential for actual consequences. Many longstanding “rules of war” are defined and agreed upon within the parameters set in the 1949 Geneva Conventions — treaties and protocols setting humanitarian standards within the context of war that was established in the aftermath of World War II.
According to Article 147 of the Fourth Geneva Convention, which relates to the protection of civilians, war crimes are violations against persons or property protected by the Conventions including “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person ... taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”
Additionally, the Rome Statute of the ICC has its own list expanding on what violations are considered war crimes.
These rules of war set precise definitions on what exactly constitutes a war crime, which do not always align with what the public may morally consider war crimes. The bombing of a school building, for example, while heinous, may not constitute a war crime if it can somehow be justified as a military necessity by the perpetrating forces.
Striking purely civilian targets, however, is considered a war crime.
If there is sufficient evidence to meet the war crime criteria based on international law, an individual accused of committing war crimes, particularly in the context of conflict, may be reported to and, potentially, prosecuted by the ICC, an international tribunal based out of the Hague in the Netherlands.
Could Putin be prosecuted for war crimes?
Given the legal parameters that need to be met to potentially prosecute Putin as a war criminal in front of an international tribune, the first step is collecting as much evidence as possible of war crimes committed by the Russian military, and establishing Putin’s culpability in those offenses.
According to State Department Counselor Derek Chollet, soon after the Russian invasion into Ukraine, a team was assembled under the US government to compile evidence of any humanitarian violations in the conflict. The US, like Russia, is not a member of the ICC, but it may still provide evidence to support other countries in the case against Putin.
Other international efforts are underway; missions to collect evidence of war crimes in Ukraine are being carried out by the UN Human Rights Council and the Organization for Security and Co-operation in Europe, the US is conducting joint operations with 44 other countries to investigative possible conflict abuses, and the ICC has opened a probe into Russia’s alleged humanitarian violations in the war.
Ukrainian officials have also launched their own operations to document war crimes on the ground, providing evidential support to international prosecutors, including ICC chief prosecutor Karim Khan.
“We can help him with our information, with our witnesses, with our victims,” Ukrainian Prosecutor General Iryna Venediktova said of her country’s efforts to support ICC’s investigation. “I will do everything to help him be successful because if he will be successful, Ukraine will be successful.”
There are notable limitations in pursuing this route.
Since Russia is not a member of the ICC, the court’s universal jurisdiction essentially does not apply to Russia or any other non-member state, which presents challenges in pursuing a case against Putin, even if an indictment is brought against him or other Russian officials
Additionally, the ICC does not have its own enforcement body, so it relies heavily on the cooperation of other countries to enforce its procedures — including making physical arrests and transporting individuals to the Hague to be tried. As such, there’s little prospect for a war crimes prosecution against Putin while he remains in office.
Previous war crimes indictments by the ICC only serve to highlight the difficulty of prosecuting such cases: Most notably, despite a 2009 indictment, former Sudanese President Omar al-Bashir — the first sitting head of state to face an arrest warrant on war crimes charges from the ICC — has yet to face prosecution.
Despite these limitations, branding Putin a “war criminal” in the legal sense could still have consequences, particularly in the (unlikely) scenario where Putin loses power and wants to flee the country. As political scientists Alexander Downes and Daniel Krcmaric noted in the Washington Post last week, “there is little chance that the sitting leader of a major nuclear power will be hauled in front of the ICC. But the ICC investigation and Biden’s ‘war criminal’ label mean that a foreign retirement — or even foreign travel — is probably off the table.”