U.S. looks to assist war crimes prosecutions targeting Russian leaders

While it is unlikely that President Vladimir Putin would end up at the International Criminal Court (ICC) in The Hague, even an indictment of the Russian leader or his aides would represent a landmark moment for efforts to hold senior officials accountable for atrocities committed under their watch, officials and analysts said.

“It would be an enormous development in the field, harking back to the World War II Nuremberg era,” said Beth Van Schaack, the American ambassador at large for global criminal justice, in an interview. She likened the impact of a trial to the shock waves caused by the 1998 arrest of former Chilean dictator Augusto Pinochet on the orders of a Spanish judge.

Charging Putin, State Department officials argue, could prompt some Russian officials to reconsider their role in the war. Cities like Bucha, where the departure of Russian forces revealed a horrific scene of human suffering, including beheaded and booby-trapped corpses, have become synonymous with Russian brutality since the invasion began two months ago.

Van Schaack, who earlier in her career worked on tribunals set up to try crimes in Rwanda and the former Yugoslavia, heads a State Department team overseeing the effort to document Russian actions and assess whether they meet standards for crimes against humanity and genocide.

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Already, the State Department has announced its determination that Russian troops have committed war crimes in Ukraine. The Biden administration is also supporting efforts by the Ukrainian prosecutor general, Iryna Venediktova, to investigate Russian actions in the war. Venediktova on Friday accused Russia of plotting the torture, rape and killing of civilians.

Clint Williamson, an attorney who served in Van Schaack’s position from 2006 to 2009 and is now working on a joint American initiative with the European Union supporting the Ukrainian effort to pursue potential war crimes, said Venediktova’s office is making progress.

As part of that effort, the United States is advising Ukrainian officials on how to put together a war crimes case, manage battlefield evidence and interview prisoners of war. Van Schaack said the federal government can also tap its vast intelligence apparatus to assist prosecutions, potentially circumventing the cumbersome declassification process by sharing commercially available satellite imagery that can mirror sensitive information. It is also possible the United States could assist foreign prosecutors in ways that fall short of providing evidence, pointing investigators in new directions based on intelligence.

Such information could also be shared with officials involved in parallel investigations outside of Ukraine, in countries including Poland and Sweden. Ukraine, Poland and Lithuania have launched a common investigatory effort, enabling easier information sharing and police cooperation. Officials caution, however, there are limits to what Kyiv can do at a moment when it is locked in a battle for the country’s survival.

The Biden administration has welcomed an investigation by the ICC prosecutor into possible war crimes and crimes against humanity. Officials describe the ICC as a venue that could complement trials in Ukraine or other countries.

“Ukraine may want to manage these cases themselves, or they may say, ‘Listen, we can’t handle some of the big fish or defendants who whose crimes were committed across the entire country. We’d rather handle crimes that are dealt with on a regional basis,’” Van Shaack said. “And that would be an appropriate way for the ICC to potentially step in.”

While some countries have laws that protect sitting heads of state from prosecution, the ICC can conduct such trials. That makes the ICC “the only game in town” for a potential trial of Putin while he remains in power, according to Stephen Rapp, who served as envoy for global criminal justice during the Obama administration.

Even an indictment of a top Kremlin official would be significant, said Ryan Goodman, a professor at the New York University School of Law who served as a Pentagon attorney during the Obama administration. “It will be a watershed moment, both in the life of the international court and in the crisis growing out of Ukraine, if and when the prosecutor indicts senior Russian officials, including potentially Putin himself,” he said.

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How far the Biden administration goes in any investigation will depend on whether the United States decides to abandon its past opposition to ICC cases targeting individuals from countries that are not parties to the global court, like Russia and the United States. While the United States helped establish the ICC, there has been domestic opposition to any step that exposes American military personnel to international courts.

After the ICC authorized an investigation into crimes in Afghanistan, potentially involving U.S. troops for the first time, the Trump administration authorized sanctions against the ICC prosecutor and other officials. The State Department declined to comment on a potential change in position.

Officials say they doubt Putin could tried at The Hague, at least while he remains in power. The court cannot conduct trials in absentia, and many ICC arrest warrants have remained outstanding for years. “Custody is key,” Van Shaack said. “Putin could stay put within Russia, and effectively enjoy impunity because he is currently out of reach of any court that might want to exercise jurisdiction over him.”

U.S. officials hope, however, that the specter of prosecution will lead other Russian officials to rethink their role in the war. Experts note that Ukraine has already captured a number of Russian officers who could now be subject to trial in Ukrainian or other courts. Van Schaack said it would be no simple matter to prove their responsibility for events carried out by the rank and file, “It’s not a cakewalk,” she said. “But the doctrine exists to do this.”

Criteria for establishing such responsibility include whether senior officials discipline troops who commit crimes. Earlier this month, Putin awarded the unit accused of executing civilians in Bucha honors for “mass heroism and bravery, steadfastness and fortitude.”

The Biden administration is also gathering information about potential transgressions by Ukraine. Kyiv has publicly paraded Russian prisoners of war in a way that appears to violate international humanitarian law. A recent assessment by the Organization for Security and Cooperation in Europe noted other potential Ukrainian violations of the rules of war.

Van Schaack said the same standards would apply to forces reporting to Putin and those under Ukrainian President Volodymyr Zelensky, noting this is “where the equivalency” ends “because when it comes to scale and degree and lethality and brutality, it’s totally disproportionate in what we’re seeing on the Russian side versus the Ukrainian side.”

She drew a further distinction between the response by Ukrainian officials, who she said had condemned reported violations and promised to investigate. Russia, she said, has responded “with a web of denial and disinformation.”

Rapp that the slow pace of justice should not delay prosecutors from filing charges. He noted an international tribunal indictment of former Yugoslav leader Slobodan Milosevic about 45 days into ethnic cleansing in Kosovo, while a NATO air campaign was ongoing.

“Unless we’re serious and prosecute those who are the true authors of these crimes and send a signal that there is no escaping this in this life, it may take a long time, but you’re never going to have a good night’s sleep, then these crimes are going to recur,” he said.