WASHINGTON — A day after President Biden labeled Russia’s President Vladimir V. Putin a “war criminal” for civilian deaths in Ukraine, Secretary of State Antony J. Blinken repeated his assessment on Thursday, saying Mr Putin would be held accountable.
“Yesterday, President Biden said that he believes war crimes have been committed in Ukraine. Personally, I agree,” said Mr Blinken, referring to a list of horrific Russian attacks in which unarmed Ukrainians, including children, have been killed. “Intentionally targeting civilians is a war crime.”
But the practical obstacles to punishing Putin are enormous, experts said, although his battlefield commanders in Ukraine could be more vulnerable. Complicating matters is the fact that the United States does not officially recognize the International Criminal Court, the main forum for prosecuting war crimes.
Some experts said declaring the Russian leader a war criminal would make it more difficult to negotiate a peace deal with him, but it could also give Ukraine and the West some leverage if Mr Putin tried to negotiate immunity from any persecution.
The successive comments from Mr. Biden and Mr. Blinken marked a marked change in American language on the subject after weeks of noncommittal statements by US officials, even as Ukrainian hospitals and apartment buildings were crushed to rubble.
Two weeks ago, White House press secretary Jen Psaki told reporters the United States had “not drawn any conclusions” about whether war crimes were committed in Ukraine, and said the matter was the subject of an official legal review. .
Mounting evidence of horrific Russian attacks on civilian targets — including Wednesday’s bombing of a Mariupol theater that may have housed hundreds of people driven from their homes — makes that position difficult to sustain.
Legal experts said US officials should be aware not to prejudge complex legal issues that could go to trial, and Mr. Biden and Mr. Blinken both formulated their assessments in personal terms, not making statements about policy. of the US government.
“I think he’s a war criminal,” Biden said on Wednesday in response to a reporter’s question.
A Senate resolution passed unanimously on Tuesday convicted Putin of “alleged war crimes” in Ukraine.
“The reason for all their caution is that for every crime there is a standard of proof that must be met,” said Oona Hathaway, a professor of international law at Yale Law School and a member of a State Department legal advisory board. “When you have a lawsuit, you can’t just say, yes, we pretty much all assume he knew what was going on.”
Ms. Hathaway said prosecutors would need to show that Russian commanders had deliberately attacked civilian structures, or had attacked them in attacks that did not distinguish between civilian and military targets. In Mr Putin’s case, prosecutors would have to show that he issued specific orders related to those actions.
The arrest and trial of anyone found guilty, not least the incumbent president of a nuclear-armed nation, is another matter. “There is no marshal that fits the International Criminal Court,” said New Jersey Representative Tom Malinowski, a New Jersey Democrat and former top State Department human rights official.
But Malinowski and others said war crimes investigations can have a powerful deterrent effect. While Russian officials may hope that sanctions against them will one day be lifted, a war crimes charge carries a permanent stigma and risk of arrest.
With the Russian military campaign stalling and Ukraine claiming to have killed several Russian generals, Mr Putin’s commanders in the field could have a reasonable fear of being captured and ultimately tried for what amounts to mass murder. Frontline troops could also be demoralized by the official investigations.
“The hope is that it will discourage the most exposed people, who also happen to be the people closest to the fighting,” Ms Hathaway said.
And it is possible that Mr Putin would be impeached and somehow fall into foreign hands. Former nationalist Serbian leader Slobodan Milosevic, accused of war crimes during the breakup of Yugoslavia, was arrested by Serbian authorities after his resignation in 2001 and transferred to The Hague for prosecution. (He died at his trial in 2006.)
The concept of international justice for war crimes was established during the Nuremberg Trials of Nazi German leaders after World War II. It is today based on the Geneva Conventions, a series of treaties governing the treatment of civilians, prisoners of war and others in time of war, which have been adopted by each country.
While multiple agencies and countries are investigating possible war crimes in Ukraine, experts said the International Criminal Court offered the best opportunity for real accountability. Based in The Hague, the court was established in 1998 after separate tribunals prosecuted mass atrocities in Rwanda and the former Yugoslavia, demonstrating the need for a permanent judicial body to hear such cases.
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Last month, the International Criminal Court’s chief prosecutor, Karim Khan, announced he would open an investigation into Russia’s invasion of Ukraine. Mr Khan traveled to Poland and Ukraine this week to collect evidence and virtually met President Volodymyr Zelensky.
In an interview with DailyExpertNews from Ukraine, Mr Khan said he would investigate whether there were cases where Ukrainian troops launched attacks from populated areas that could make them legitimate targets. “But even then, it is not a license to use cluster bombs or conduct disproportionate attacks in concentrated civilian areas,” he added.
The United States has had a fraught relationship with the court and is not one of the 123 member states. President George W. Bush withdrew President Bill Clinton’s signature on the founding document, saying he would not accept the court’s jurisdiction over US troops abroad. President Barack Obama cooperated with the court, but never attempted to make the United States a member.
The administration of President Donald J. Trump has been vehemently hostile to the body, which was derided by Secretary of State Mike Pompeo as a “kangaroo court” and biased against Israel. Mr Trump even imposed sanctions on his top prosecutor and others after she opened an investigation into alleged war crimes committed by US troops in Afghanistan.
“Traditionally, the US has objected to the ICC’s claims of jurisdiction over US citizens because the US has never accepted the jurisdiction of the court,” said Todd Buchwald, the head of the State Department’s Office of Global Criminal Justice during the Obama administration. “The question is: what do we think about that now?”
Other agencies could prosecute alleged Russian war crimes. The United Nations or allied countries could set up special tribunals, and individual nations could also enforce what is known as universal jurisdiction, a legal concept that allows a national court to try people for human rights crimes. In January, a German court on the principle convicted a former Syrian government security official on charges of torture.
But the Syrian, Anwar Raslan, had migrated to Germany, where he presumably did not expect to be identified and apprehended.
It is highly unlikely that Russian officials will make themselves vulnerable to such arrests.
“A really big problem is getting people into the dock,” said Matthew Waxman, a law professor at Columbia University who held senior national security positions in the Bush administration.
“I very much doubt that Putin will ever be in The Hague,” he added.
Edward Wonga reporting contributed.