On March 23, 2022, Antony J. Blinken, U.S. Secretary of State accused Russia of making “indiscriminate attacks and attacks deliberately targeting civilians, as well as other atrocities. “Russia’s forces have destroyed apartment buildings, schools, hospitals, critical infrastructure, civilian vehicles, shopping centers, and ambulances, leaving thousands of innocent civilians killed or wounded.”

Statement by Antony J. Blinken

Blinken underscored that, according to the UN Office of the High Commissioner for Human Rights observed in a March 11 report, Russian forces have targeted the Mariupol maternity hospital.  It also includes a strike against a Mariupol theater, clearly marked with the word for “children” in Russian in huge letters visible from the sky.

According to Blinken, Putin’s forces used these same tactics in Grozny, Chechnya, and Aleppo, Syria, where their planes bombarded cities to break the will of people.

Blinken observed that last week, both he and President Biden stated that Russian forces had committed war crimes in Ukraine.  Blinken said then that deliberate targeting of civilians is a war crime.  The Department of State and other U.S. government experts were documenting and assessing potential war crimes in Ukraine.

According to Blinken, the determination that members of Russia’s forces have committed war crimes is based on a careful review of available information from public and intelligence sources.  Blinken said a court of law with jurisdiction over the crime is ultimately responsible for determining criminal guilt in specific cases.  The U.S. government will continue to track reports of war crimes and will share information it collects with allies, partners, and international institutions and organizations, as appropriate.

Statement by Beth van Schaack

Beth van Schaack, U.S. Ambassador at-Large for Global Criminal Justice, State Department, also gave remarks and answered questions about the allegations that the Russian troops are committing war crimes.

When asked about the potential venues for prosecution, van Schaack answered that Ukraine has a General Prosecutor and a directorate for War Crimes.  Some third states also will have jurisdiction.  Also she noted that the chief prosecutor of the ICC has announced he is reviewing the situation.

The U.S. is reviewing all possibilities, including potentially cooperation with ICC even though the U.S. is not a party to the International Criminal Court.

It is important to document the evidence for preservation for use in future accountability proceedings.  In respect to the need to document and preserve evidence of atrocities, on March 10, Karim A.A. Khan QC,  announced that his Office has established a dedicated portal through which any person that may hold information relevant to the Ukraine situation can contact our investigators. He encouraged all those with relevant information to come forward and contact his Team through the news platform, which can be accessed here.

Analysis

The statements of President Biden, Secretary of State Antony Blinken, and Ambassador at-Large for Global Criminal Justice Beth van Schaack indicate that the U.S. government has prioritized accountability for atrocities.  The statements are analogous to the decision by the U.S. government to pursue this strategy during the conflict in the former Yugoslavia.

Having intensive investigations for atrocities exerts pressure on Russian forces and leadership that their conduct may result in eventual indictments.  Even though Russia is not a member of the ICC and is not likely to cooperate in the investigations or in surrendering any Russians who are indicted, the investigation and an indictment are punishment.  An indictment means the travel of an indicted will be limited and harm to their reputation.

History shows that indictments combined with sanctions against the country in which the indictee resides, and the continuation of sanctions until a country cooperates with the ICC, often harms the political stability of the indictee, if they are political leaders.  The weakening of political leaders is illustrated by events in Serbia and Sudan.   It weakened Slobadan Miloŝević.  He eventually lost power and was handed over to the ICC.  In 2009, journalist Gojko Berić commented that “(i)f there was no Hague, Miloŝević would probably still be in power.”  If nothing else, he would be the head of his party.  Similarly, probably Radovan Karadžić would have continued as a member of Parliament.  Ratko Madić could have continued as Chief of Staff of the Army.^[1] Omar al-Bashir, the former head of state of Sudan, was weakened by the ICC indictment. Sudan’s leaders eventually arrested him and have said they will hand him to the ICC.^[2]   In both Serbia and Sudan, the combined pressure of sanctions and criminal investigations and ultimately indictments debilitated the standing of the indictees.

Another reason to prioritize the atrocity investigations is to win the information war and the accompanying effort to persuade international organizations to expel and/or suspend Russia and/or start their own investigations.  On March 8, the OECD has suspended Russia and Belarus from participation while on March 16, the Council of Europe expelled Russia. [3] On March 4, the UN Human Rights Council agreed to establish a commission to investigate violations committed during Russia’s military attack on Ukraine.

The accumulation of statements condemning the alleged atrocities and the multiple investigations will likely  make some members of the military and political leadership hesitate to continue the attacks and/or eventually voice their objections or resign.  The statements about alleged atrocities will also lead to increased public attention and eventual pressure among some segments of the Russian population.

On March 9, Ukrainian Prosecutor General Iryna Venediktova has called for a “new model” of investigative efforts to tackle alleged war crimes in Ukraine, including the establishment of a special tribunal.

 

[1]    Diane Orentlicher, Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia  164-165 (2018).

[2]    Omar al-Bashir: Sudan agrees ex-president must face ICC, BBC,  February 11, 2020.

[3]    For additional discussion and analysis, see Michael Plachta, Council of Europe Terminates Membership of the Russian Federation, 38 Int’l Enforcement L. Rep. __ (Apr. 2022)