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White House debates U.S. role in international war crimes probe

Some administration officials are concerned a war crimes case against Russian President Vladimir Putin could foreclose a possible diplomatic way out of the crisis.
Image: Russian President Vladimir Putin meets with Belarusian President Alexander Lukashenko in Moscow
Russian President Vladimir Putin looks on before a meeting with Belarusian President Alexander Lukashenko at the Kremlin in Moscow on March 11, 2022.Mikhail Klimentyev / Sputnik / Kremlin via Reuters

America’s ambassador to the U.N. has accused Russia of committing war crimes in Ukraine, the strongest language yet from Washington even as senior administration officials debate how the U.S. will hold Moscow accountable for its invasion.

Amid searing video of cities coming under attack and a mounting civilian death toll, the U.S. ambassador to the United Nations, Linda Thomas-Greenfield, went further than other U.S. officials when she was asked if Russia’s actions represented a violation of the laws of war.

“We’re working with others in the international community to document the crimes that Russia is committing against the Ukrainian people. They constitute war crimes; there are attacks on civilians that cannot be justified ... in any way whatsoever,” the ambassador told the BBC on Thursday.

Her unequivocal comments came as Biden administration officials are holding internal deliberations about the potential ramifications of war crimes investigations against Russia, and what role the U.S. should play in those international efforts, according to current and former officials and human rights advocates with knowledge of the discussions.

Administration officials are wrestling with a number of questions, including whether an indictment against Russian President Vladimir Putin would close the door on any potential diplomacy to stop or de-escalate the conflict in Ukraine. Officials said that would not affect decisions about what evidence to hand over to investigating bodies. But some Western officials say if Putin faced charges of war crimes or believed the U.S. was intent on toppling his regime, the Russian president could conclude there was no point in negotiations and might resort to more drastic measures.

Image: U.N. Security Council Discusses Humanitarian Crisis In Ukraine
U.S. Ambassador to the United Nations Linda Thomas-Greenfield speaks with a person as members of the U.N. Security Council meet to discuss the humanitarian crisis in Ukraine at United Nations headquarters on MondayMichael M. Santiago / Getty Images

The administration is also weighing to what degree the U.S. should be at the forefront of any accusations against Russia, given that the United States is not part of the International Criminal Court and has said it does not recognize the ICC’s jurisdiction over U.S. citizens. Russia also does not recognize the court’s jurisdiction over its citizens, and withdrew its membership in 2016. Some administration officials also believe any accusation against Russia would be more powerful if done with the U.S. as part of a broad collective of countries, not alone.

On Friday, when asked by a Romanian journalist if Russia had committed war crimes, Vice President Kamala Harris said, "I think I’ve said it before and I’ll say it again: We are clear that any intentional attack or targeting of civilians is a war crime. Period." A day earlier, while in Poland, she had endorsed the idea of a war crimes investigation.

But Biden administration officials want to avoid setting any precedent that could later ensnare U.S. troops in a future case before the court, former U.S. officials and human rights activists said. 

The White House said the administration is collecting information of possible war crimes, and it is providing funds to Ukrainian civil society groups that are trying to gather and preserve evidence of potential atrocities, a White House National Security Council spokesperson said. 

“The U.S. is supporting the important work of human rights documenters in Ukraine,” the spokesperson said, adding: “We support accountability using every tool available, including criminal prosecutions where appropriate.

Last week, the U.S. embassy in Kyiv accused Russian forces of committing a war crime in an assault and takeover of a nuclear power plant in Zaporizhzhia. “It is a war crime to attack a nuclear power plant,” the embassy tweeted.

But soon after State Department officials sent an “urgent” message to U.S. embassies in Europe telling them not to retweet the post, according to an internal message obtained by NBC News.

“If you have retweeted it — un-re-tweet it ASAP,” said the internal message.

A State Department spokesperson later said the U.S. was still assessing the circumstances of the operation and stressed the intentional targeting of civilians or civilian objects, including nuclear power plants, is a war crime. “Regardless of the legality — this action was the height of irresponsibility, and the Kremlin must cease operations around nuclear infrastructure,” the spokesperson said.

The episode captured the Biden administration’s caution as it tries to navigate the war crimes issue. 

After a request by an unprecedented 39 governments, the International Criminal Court in The Hague last month launched an investigation into possible war crimes in the conflict in Ukraine.

In past war crimes cases before the ICC and other tribunals, U.S. and Western intelligence agencies have sometimes provided intercepts or other intelligence that helped prosecutors prove senior figures ordered attacks on civilians. In Ukraine, it’s possible the U.S. could choose to pass intelligence material to the ICC or to other governments, which could then share that information with investigators at the court, administration officials said.

Until Thursday, Britain and some other NATO allies had used more strident language than the United States in describing Russia’s conduct of the war. British Prime Minister Boris Johnson a week ago accused Moscow of “barbaric acts” and said he believed Russia had committed war crimes. 

Given the U.S. government’s long-running reservations about the ICC’s authority, and concerns about leaving open a pathway for diplomacy, the United States may choose to let European and other governments serve as the public face of efforts to prosecute alleged Russian war crimes, some human rights experts and former officials said.

“The U.S. will absolutely not be at the forefront and if they are supporting the court, they will do so quietly,” said one human rights advocate familiar with the administration’s discussions who was not authorized to speak on the record.

David Bosco, an associate professor of international relations at Indiana University, agreed. “They’re going to be playing a careful game in their approach to the ICC,” Bosco said. The administration could let allies “take the lead in terms of cooperation and information provision” and “the U.S. would stay — to the extent it can — in the background.”

The court was set up in The Hague in 1998 and past U.S. administrations have cooperated with the ICC on a case-by-case basis. But when the court opened a preliminary investigation into possible crimes by U.S. intelligence officers in Afghanistan, the Trump administration condemned the court and imposed sanctions on two officials in the prosecutor’s office.

President Joe Biden removed the sanctions against the ICC and the new chief prosecutor for the court, Karim Khan, said in September that the role of U.S. personnel would be “deprioritized” in the Afghanistan investigation. 

The State Department on Thursday acknowledged U.S. concerns about the ICC’s jurisdiction, but left open the possibility the administration would support the court’s work related to the war in Ukraine.

“So our concerns over the ICC assertion of jurisdiction in some areas, those do remain, but we recognize the meaningful role that the ICC can play in promoting accountability for atrocities and we’ve supported and will continue to support the ICCs efforts in certain cases,” State Department spokesperson Ned Price told reporters.

The intense level of public attention to the war and the bipartisan outrage over Russia’s invasion could make it difficult for the administration to cooperate with the ICC discreetly, said Todd Buchwald, former U.S. ambassador for global criminal justice.

“The political situation is such that they are going to get asked questions. What are they going to say? It’s hard to avoid answering the question,” Buchwald said. “I don’t think they will be able to do it in an unacknowledged kind of way.”

Apart from the ICC’s investigation into possible war crimes in Ukraine, the U.N. has set up a commission of inquiry, and the Organization for Security and Cooperation in Europe has established an expert panel to gather evidence of war crime allegations. The Biden administration supported both moves. 

In addition, human rights organizations in and outside of Ukraine are seeking to collect and preserve evidence that could be used for an eventual war crimes prosecution. Human Rights Watch and other rights groups say Russian shelling attacks on fleeing civilians and residential areas may have violated the laws of war.

Russia has been accused of using cluster munitions in the bombardment of residential areas in the Ukrainian city of Kharkiv. Human rights groups say the weapons are indiscriminate and the Russians’ use of cluster munitions in a populated area could be considered a war crime.

Russia has denied attacking civilians, accused Ukraine of bombarding its own citizens, alleged without evidence that actors posed as wounded civilians at a maternity hospital, and denied it attacked Ukrainian forces defending the nuclear power plant in Zaporizhzhia.

War crimes investigations and trials often take years to come together, and sometimes fail to secure a conviction. In the case of Ukraine, events have moved at an unprecedented pace. After dozens of governments formally requested action, the ICC launched a war crimes investigation just weeks into the conflict. Still, legal experts said proving in court that a military unit has intentionally targeted civilians, or recklessly bombarded them, is a difficult task.