Pursuing Russia’s War Crimes: Words are Good, Actions Are Better

Prosecuting Putin’s criminal invasion of Ukraine and its continuing travesties deserve the Biden administration’s—and the American public’s—full attention.

American presidents aren’t used to following the lead of their European counterparts, but President Biden should do just that in seconding the Council of Europe’s latest step to hold Russia accountable for its war crimes in Ukraine.  The Council’s summit in Reykjavik last week gives him an opportunity to clarify the American position on prosecuting Russian atrocities.  The spotlight on Vladimir Putin’s crimes needs to be brighter at home as well as abroad.

The chorus in Reykjavik—European Commission President Ursula von der Leyen, German Chancellor Olaf Scholz, French President Emmanuel Macron, and British Prime Minister Rishi Sunak—condemned Russian criminality in no uncertain terms.  The Council matched words with deeds creating a Register of Damages.  A repository for evidence on Ukraine’s injury and loss, the Registry, Scholz said, aims “to make (the Russians)take responsibility for the war crimes they have committed."

Biden himself, of course, hasn’t minced words, calling Vladimir Putin “a war criminal. Straight talk from the top or not, the administration’s position is still conflicted.  Attorney General Merritt Garland has leaned forward.  Last year, Garland named a senior prosecutor and a Justice Department team to support Ukraine’s own war crimes probe.  Others are on a different tack.  Speaking last week, Defense Secretary Lloyd Austin repeated his opposition to handing over intelligence on Russian war crimes to the International Criminal Court (ICC).  

The State and Justice Departments reportedly are on board with helping the ICC’s investigations, including the latest task at hand.  Two months ago, the ICC issued an arrest warrant for Putin for Russia’s mass abductions of Ukrainian children.  Like his predecessors, Austin is putting the troops first in asserting a decades-old policy.  Since the ICC’s creation, US administrations have rejected its jurisdiction over citizens of non-signatory states, even if they committed war crimes in a country that has signed onto the court. 

Defense officials argue cooperation in pursuing Russia—like the United States, a non-signatory to the ICC’s founding treaty—could jeopardize US soldiers in the future.  In Ukraine the rationale misses the moral, strategic, and political point.  Most obviously, Russia’s aggression is exacting a horrendous human cost in lives, suffering, and destruction that calls for a reckoning.  For European allies, Putin also personifies the 20^thCentury’s bloodiest lesson: if unchecked, Russia’s war including its atrocities will not stop at Ukraine.

That historical parallel presumably wasn’t lost on majorities in both Houses of Congress last year when Republicans joined Democrats to give war crimes in Ukraine a priority.  An excellent analysis in Just Security in March by Ambassador Todd Buchwald dissects the legislation as well as the US position on the international court. For Secretary Austin, the marching orders from Congress—as well as its subsequent bipartisan calls for the President to overrule the Defense Department’s objections—couldn’t be clearer.

The Justice for Victims of War Crimes Act enables prosecution of war criminals present on American territory in US courts.  The act aligns US law with one of the ICC’s principles: the ICC should act only if national courts don’t.  The Ukraine Invasion War Crimes Deterrence and Accountability Act (part of the FY2023 National Defense Authorization Act) makes the collection of information on Russian war crimes a matter of policy.  As the name specifies, the act seeks accountability, including through international organizations, to deter Russian atrocities. 

Finally, the FY 2023 Defense Authorization Act creates a new intelligence role, requiring the Director of National Intelligence (DNI) to appoint a senior official to focus the spies and analysts on Russian war crimes.  The tasks awaiting the intelligence community coordinator for Russian atrocities accountability cover the waterfront—from overseeing collection and analysis to briefing policymakers, legislators, and others on the intelligence strategy, effort and results.

For Austin, the new intelligence mission offers the reason to sit-down with DNI Avril Haines, CIA Director Bill Burns, and other intelligence officials to work out how to help the ICC.  After all, the same crew has broken the mold before.  In February 2022 as Putin prepared to invade, the intelligence community’s leaders declassified intelligence to publicize the impending Russian aggression.  The result mobilized allies, deterred others from aiding Moscow, and informed the public.  Their creativity should be able to provide the intelligence that ICC prosecutors need.

The same is no less true or important at home where growing political uncertainties surround US support for Ukraine.  Opinion polls show popular backing for US aid is slipping.  Not surprisingly, aspiring Republican presidential candidates are taking note.  Donald Trump and Ron DeSantis have all but advertised their indifference to Ukraine’s fate.  In Congress the Republicans’ far right but influential fringe is playing me-too, caviling about corruption in Kyiv and costly US military assistance.

What’s at issue isn’t just election year opportunists or another theatrical congressional inquiry. Whether it’s Putin’s brutal aggression or thousands of Ukrainian children forcibly transported to Russia, presidential remarks and half-measures as a response to the crimes aren’t enough.  The Biden administration needs to clearly communicate not only the nature of the Russian regime and the human toll taken by its atrocities but also the consequences they will bring. 

History suggests that getting the message across won’t be easy.  In The Politics of Rescue, his study of the Roosevelt administration and the Holocaust, Henry Feingold described an opinion poll taken in December 1944.  “A majority of Americans were aware that Hitler had been cruel to the Jews,” Feingold noted, “but few fathomed the extent of the killing.  Twelve percent believed the stories of mass murder of Jews to be totally untrue, 27 percent believed that it involved only 100,000 people, and only four percent believed that over 5,000,000 Jews had been put to death.” 

War as news intrudes into most lives as daily stories of statistics on casualties and costs, strange place names, and the sameness of the destruction wrought by seemingly intractable struggles.  Russia’s invasion of Ukraine is no exception.   

Prosecuting Putin’s criminal invasion and its continuing travesties deserve the Biden administration’s—and the public’s—full attention.