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Russia has committed war crimes in Ukraine. The US should not hold back evidence for the prosecution.

The Boston Globe 3/12/2023 Editorial Board
A villager passed by debris of homes destroyed in Russia's night rocket attack on a village in the Zolochevsky district of the Lviv region of Ukraine on March 9. © Mykola Tys A villager passed by debris of homes destroyed in Russia's night rocket attack on a village in the Zolochevsky district of the Lviv region of Ukraine on March 9.

Far from the front lines of the battle for the future of Ukraine, its citizens awoke last week to bombardments from Russian missiles and drones — targeting civilian enclaves, including the capital of Kyiv, and critical infrastructure.

The attack, which killed five people in one home in a village in the Lviv region and also targeted the last remaining external power line to the Zaporizhzhia Nuclear Power Plant, was just the latest by Russian forces targeting civilians and civilian infrastructure. Such attacks, an ongoing part of Vladimir Putin’s war of aggression in Ukraine, should be viewed for what they are, by any international standard: war crimes.

And yet in Washington, the Biden administration dithers over whether to turn over its own treasure trove of evidence gathered by US intelligence agencies on Russian atrocities committed in Ukraine to the International Criminal Court — a move already approved by Congress last December.

Blocking the effort, according to a report in The New York Times, is the Pentagon, which still has lingering fears that somehow, sometime cooperating with the ICC — which the United States is not a member of — will come back to haunt US military forces. So this very hypothetical future prosecution is now apparently the only thing standing in the way of offering valuable evidence of Russian war crimes to the international tribunal — with the State Department, the Justice Department, and intelligence agencies all in agreement on shipping off the evidence to The Hague.

Only Senator Lindsey Graham, a major supporter of last year’s congressional effort to clear the way on aiding the International Criminal Court in its prosecution of Russian atrocities, would go on the record to confirm the dispute within the administration.

“DOD opposed the legislative change — it passed overwhelmingly — and they are now trying to undermine the letter and spirit of the law,” the South Carolina Republican told The Times. “It seems to me that DOD is the problem child here, and the sooner we can get the information into the hands of the ICC, the better off the world will be.”

There is certainly no dispute within the administration about the reality of Russia’s war crimes.

“In the case of Russia’s actions in Ukraine, we have examined the evidence. We know the legal standards and there is no doubt these are crimes against humanity,” Vice President Kamala Harris told the annual Munich Security Conference in Germany last month.

“Let us be clear, Russian forces have pursued a widespread and systemic attack against a civilian population,” Harris said. “Gruesome acts of murder, torture, rape, and deportation. Execution-style killings, beatings, and electrocution. Russian authorities have forcibly deported hundreds of thousands of people from Ukraine to Russia — including children.”

Secretary of State Antony Blinken backed up Harris with a statement issued soon after, saying, “Based on a careful analysis of the law and available facts, I have determined that members of Russia’s forces and other Russian officials have committed crimes against humanity in Ukraine.” He too specifically mentioned the forcible separation of Ukrainian children from their parents and their deportation to Russia — an area ICC chief prosecutor Karim Khan is reportedly investigating.

Khan has been on the ground in Ukraine at least three times, including visiting Bucha, the site of hundreds of civilian deaths. The ICC has also joined a Joint Investigative Team with Lithuania, Poland, Estonia, Latvia, Slovakia, Romania, and Ukraine to support possible trials inside or outside Ukraine.

There is certainly room for debate on whether the International Criminal Court is the ideal venue for a war crimes tribunal. Its 20-year record of prosecuting international tyrants is spotty at best.

But there is no reason not to give the International Criminal Court access to evidence it needs as its investigation progresses. And there is tremendous value to the investigative process itself — to let victims know they are not forgotten and perpetrators know that they, too, will never be forgotten and will one day be brought to justice.

Ukraine will continue to bring some captured Russians to justice itself. It has already convicted 25 Russian soldiers of war crimes in its own courts.

And the creation of a Nuremberg-like tribunal to try high-level officials is surely not out of the question.

The US has a moral obligation to further all of those efforts. And under a provision contained in last December’s omnibus appropriations act it also has the legal wherewithal to assist with “investigations and prosecutions of foreign nationals related to the situation in Ukraine, including to support victims and witnesses.”

It’s time President Biden delivered some tough love to Defense Secretary Lloyd Austin. When missiles are hitting civilian targets in Lviv and Kyiv, the Pentagon’s hypothetical fears need to take a back seat to exposing and sharing the indisputable evidence of ongoing war crimes by Putin’s criminal regime. The dithering must end.

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