Biden raises stakes with allegations of Russian war crimes

President Biden’s condemnation of Russian President Vladimir Putin as “a war criminal” marked a dramatic shift in how the U.S. talks about Russia’s invasion of Ukraine.

To officially affix the “war crimes” label to a country’s actions involves a vigorous, often decades-long legal process, and investigators are already beginning to look at Russia’s conduct.

But experts say the president’s blunt statement to reporters on Wednesday, after resisting using the term for weeks, could serve to more forcefully galvanize the international community toward further isolating Moscow and raise the cost for Russian officials complicit in its war against Ukraine. 

“The power of the term ‘war criminal’ or ‘war crimes’ is that it serves as a unifying factor around which allies can unite,” said Mike Newton, a professor of the practice of law at Vanderbilt University and an expert in war crimes.  

“It says essentially, pick sides. You’re either on the side of the war criminals and therefore you support the murder of civilians, you support war crimes, or you’re not.”

The president’s new rhetoric, which is being echoed by other administration officials, comes as Putin escalates attacks, including launching strikes that have hit apartment buildings, hospitals and shelters, and as Biden’s senior diplomatic and intelligence officials warn Putin may launch a chemical weapons attack in Ukraine as he grows more desperate against Ukrainian resistance. 

Secretary of State Antony Blinken warned Thursday that “Moscow may be setting the stage to use a chemical weapon and then falsely blame Ukraine to justify escalating its attacks,” and said he agreed with the president’s remarks. 

“Intentionally targeting civilians is a war crime,” Blinken told reporters. “After all the destruction of the past three weeks, I find it difficult to conclude that the Russians are doing otherwise.”

The United Nations on Thursday said it has counted 2,032 civilian casualties, with 780 killed and 1,252 injured – but believes the actual figure to be “considerably higher.”

Kremlin spokesman Dmitry Peskov, who the U.S. blacklisted as part of wide-ranging sanctions on individuals supporting Russia’s war against Ukraine, said that Biden’s comment was “unacceptable and unforgivable rhetoric,” according to Tass news agency.

Blinken on Thursday said international human rights lawyer Beth Van Schaack, who was confirmed Wednesday by the Senate for the post of ambassador-at-large for Global Criminal Justice, will lead the State Department’s investigation documenting possible war crimes. 

White House press secretary Jen Psaki cautioned the legal process at the State Department to determine if Putin committed war crimes “could take some time” and didn’t specify a timeline.

“It’s a legal process, where they review all of the evidence and then they provide that evidence and data and information to the international bodies that oversee the investigations,” she said on Thursday. “We would be supporting those efforts.”

Reports and images from the war have shocked the world this week, including Russian attacks on civilian targets, kidnappings and hostage-taking. 

The UN said casualties have been caused by shelling from heavy artillery and multiple-launch rocket systems, as well as missile strikes. Those findings underscore U.S. and NATO officials saying Russia has used cluster and vacuum bombs, indiscriminate munitions that can cause wide-ranging damage.  

Blinken said Russia’s strategy is to “break the will of the Ukrainian people.”

In the southern city of Mariupol, the Russian bombing this week of a theater in which hundreds of civilians took shelter and which was marked with the words “Children” in Russian drew international outrage. More than 100 survivors reportedly emerged from the rubble on Thursday, the bomb shelter underneath the theater miraculously withstanding the Russian attack.

Last week an attack there on a children’s hospital and maternity ward similarly drew condemnation. The Associated Press documented at least one death of a pregnant woman and her unborn child, who was earlier photographed being carried from the wreckage on a stretcher. 

The World Health Organization said it was one of 43 hospitals Russia has attacked.

Vice President Harris, responding to a question from a reporter while in Romania following the attack on the maternity ward, said “We are clear that any intentional attack or targeting of civilians is a war crime. Period.” 

At least five journalists have been killed, and others injured, while reporting from the ground in Ukraine this month and Blinken has said their deaths, if intentional, could also constitute a war crime.

Other Russian attacks viewed as potential war crimes include the bombings of civilian infrastructure, residential buildings, communication infrastructure, municipal offices, the attacks on and seizure of nuclear sites, and Ukrainian civilians reportedly being shot by Russian soldiers as they tried to flee the fighting. 

The brutality in Ukraine has been shared on television, Twitter, Reddit, secure messaging systems and other platforms, making information on the ground widely accessible. Newton said this means more data for investigators.

“There’s a new clarity of information,” he said. “But that just means you have to incorporate those things into your investigations. That’s the point, the political rhetoric of war crimes can’t substitute for the granular legal analysis.”

Investigations are already underway in a number of international fora to document and preserve evidence of possible war crimes. 

Prosecutor of the International Criminal Court Karim A.A. Khan QC announced on Feb. 28 that the court was opening an investigation into whether Russia committed war crimes and crimes against humanity in Ukraine. 

Khan traveled to western Ukraine and Poland on March 15 to “assess the situation on the ground, meet with affected communities and to further accelerate our work by engaging with national counterparts,” he said in a statement. 

“If attacks are intentionally directed against the civilian population: that is a crime that my Office may [investigate] and prosecute. If attacks are intentionally directed against civilian objects, including hospitals: that is a crime that my Office may investigate and prosecute.”

On March 4, the United Nations Human Rights Council voted to establish a “Commission of Inquiry on Ukraine” that has a mandate to investigate all alleged rights violations, abuses related crimes and make recommendations on accountability measures. The resolution also called for Russia to withdraw its troops from Ukraine.  

Thirty-two members voted in favor of the resolution to establish the inquiry, with only Russia and Eritrea rejecting the measure. 

Also on March 4, 45 countries part of the Organization for Security and Cooperation in Europe (OSCE) voted to invoke the “Moscow Mechanism”, appointing independent experts to investigate potential gross human rights violations and war crimes in any of the OSCE member states. The mechanism was established during a 1991 OSCE summit in Moscow.  

Further, the International Court of Justice, the top arbiter for the United Nations, on Wednesday called for Russia to immediately halt its military operation and withdraw its troops from Ukraine, responding to a complaint from Kyiv filed last month accusing Russia of falsely claiming genocide to justify its invasion. 

The ICJ has no specific authority to compel Russia to withdraw, but its ruling is viewed as another venue where Moscow is being isolated.   

Kremlin spokesperson Peskov rejected the court’s ruling, telling reporters on Thursday that Russia “cannot take this decision into account.” 

Putin could face trial if charged with war crimes and indicted, likely by the International Criminal Court in the Hague. 

But it could take decades. 

The trial of former Iraqi leader Saddam Hussein is often used as a modern-day comparison. He was captured by U.S. forces in Iraq in 2003 and faced trial by an Iraqi Special Tribunal for crimes against humanity stemming from the mass killing of civilians in Dujail, Iraq in 1982. He was found guilty and sentenced to death by hanging in 2006.

“The wheels of justice will grind,” Newton said. “I just think we have to be in this for the long haul.”