The U.S. ambassador to Russia has accused Russia war crimes in Ukraine. This is the most powerful language Washington has used yet, even as high-ranking administration officials debate whether the U.S. will hold Moscow responsible for the invasion.
Linda Thomas-Greenfield, U.S. ambassador, was confronted with a searing video of civilian deaths and cities under attack. She was also asked by the United States if Russia's actions were a violation to the laws of war.
"We are working with other members of the international community to document Russia's crimes against the Ukrainian people. These are war crimes. There are attacks on civilians which cannot be justified... in whatever way," the ambassador stated to BBC on Thursday.
According to former and current officials, as well as human rights advocates who have been privy to the discussions, her unambiguous comments were made while Biden administration officials are conducting internal deliberations on the potential ramifications war crimes investigations against Russia and what role the U.S. should be playing in international efforts.
Officials in the Administration are trying to figure out if an indictment against Russian President Vladimir Putin would stop any diplomatic efforts to de-escalate or stop the conflict in Ukraine. Officials stated that this would not impact the decision about which evidence should be handed over to the investigating bodies. Some Western officials believe that if Putin was charged with war crimes or believes the U.S. is intent on overthrowing his regime, the Russian president might conclude that negotiations are futile and resort to more extreme measures.
It is also weighing whether the U.S. should be in the forefront of any allegations against Russia given that the United States does not belong to the International Criminal Court. The United States has stated it does not recognize the ICC’s jurisdiction over U.S. citizens. Russia has withdrawn its membership from the International Criminal Court in 2016 and does not recognize its jurisdiction over its citizens. Some officials in the administration believe that any accusation of Russia would be stronger if it was made with the U.S., and not just one country.
When asked Friday by a Romanian journalist whether Russia had committed war crimes she replied, "I think it's been said before and it'll be repeated again: We are certain that any intentional attack on civilians or targeting of civilians, is a war crime." Period." She had supported the idea of an investigation into war crimes just a day before, while she was in Poland.
Former U.S. officials, human rights activists and others said that officials from the Biden administration want to avoid creating precedents that could lead to U.S. troops being entrapped in future cases before the court.
According to a spokesperson for the White House National Security Council, the White House is gathering information about possible war crimes and is funding Ukrainian civil society groups to collect and preserve evidence of such atrocities.
The spokesperson stated that the U.S. supports the work of Ukrainian human rights documenters and added: "We support accountability using all tools available, including criminal prosecutions when appropriate."
The U.S. Embassy in Kyiv charged Russian forces with committing war crimes in the attack and takeover on a Zaporizhzhia nuclear power station. The embassy tweeted, "It's a war crime attack a nuclear plant."
According to an internal message obtained from NBC News, State Department officials quickly sent an "urgent message" to U.S. embassies abroad requesting that they not retweet this post.
The internal message stated that "if you have retweeted the it, un-re-tweet ASAP."
Later, a spokesperson for the State Department stated that the U.S. was still reviewing the circumstances and that the deliberate targeting of civilians, civilian objects, or nuclear power plants is a war crime. The spokesperson stated that "Regardless of legality, this action was the highest level of irresponsibility and the Kremlin should cease operations around the nuclear infrastructure."
This episode demonstrated the caution of the Biden administration as it attempts to navigate the issue of war crimes.
The International Criminal Court in The Hague launched an investigation last month into possible war crimes committed in the conflict in Ukraine, following a request from 39 countries.
U.S. intelligence agencies and Western intelligence agencies sometimes provided intelligence intercepts and other intelligence to help prosecutors prove that senior officials ordered attacks on civilians in war crimes cases. According to administration officials, the U.S. could be willing to share intelligence material with the ICC and other governments in Ukraine. This could allow them to share the information with the court's investigators.
Up until Thursday, Britain and other NATO allies used more stout language than the United States to describe Russia's war crimes. Boris Johnson, the British Prime Minister, accused Moscow of "barbaric actions" last week and stated that he believes Russia has committed war crimes.
Some former officials and human rights experts suggested that the U.S. may allow European and other governments to be the public face of any efforts to prosecute alleged Russian war crime.
"The U.S. will not be at all the forefront, and if they support the court they will do it quietly," stated a human rights advocate who was not authorized to speak publicly about the administration's discussions.
David Bosco, an Indiana University associate professor of international affairs, agreed. Bosco stated that they would be careful about how they approach the ICC. The administration could allow allies to "take the lead" in terms of cooperation, information provision and the U.S. "would stay in the background -- to the extent that it can."
The Hague court was established in 1998. Previous U.S. administrations have collaborated with the ICC case-by-case. The Trump administration condemned the court's opening of a preliminary investigation into the possible crimes committed by U.S. intelligence officials in Afghanistan and placed sanctions on two members of the prosecutor's staff.
President Joe Biden lifted sanctions against the ICC, and Karim Khan, the new chief prosecutor of the court, stated in September that U.S. personnel's role in the Afghanistan investigation would be "deprioritized".
On Thursday, the State Department acknowledged U.S. concerns regarding the ICC's jurisdiction but left open the possibility that the administration might support the court in its work related to the conflict in Ukraine.
Ned Price, spokesperson for the State Department, stated that while we remain concerned about the ICC's assertion of jurisdiction over certain areas, we still recognize the important role the ICC can play to promote accountability for atrocities. He also said that they support and will continue supporting the ICCs efforts when necessary.
Todd Buchwald, ex-ambassador for global criminal justice, stated that the intense public attention to the war, and bipartisan outrage about Russia's invasion, could make it difficult for Washington to discreetly cooperate with the ICC.
"The political environment is such that they will be asked questions. What will they say? Buchwald stated that it was difficult to answer the question. "I don’t believe they will be capable of doing it in an unacknowledged way."
The ICC has launched an investigation into possible war crimes in Ukraine. In addition, the U.N. established a commission to investigate and the Organization for Security and Cooperation in Europe created an expert panel to collect evidence about war crime allegations. Both of these moves were supported by the Biden administration.
Human rights organizations from Ukraine and abroad are also seeking evidence to support a possible war crimes prosecution. Human Rights Watch and other rights organizations believe that Russian shelling of civilians fleeing from residential areas and civilians may have violated war laws.
Russia was accused of using cluster bombs in its bombardment of Kharkiv, Ukraine. Human rights groups claim that the weapons were indiscriminate, and that the Russians used cluster munitions in densely populated areas could be considered war crimes.
Russia denied attacking civilians and accused Ukraine of bombing its citizens. It also claimed without evidence that actors pretended to be wounded civilians at a hospital. And it denied attacking Ukrainian forces defending Zaporizhzhia's nuclear power plant.
Sometimes, war crimes trials and investigations can take many years and fail to lead to convictions. The events in Ukraine have happened at an extraordinary pace. The ICC opened a war crimes investigation after dozens of countries requested it. This was just weeks into the conflict. However, legal experts say it is difficult to prove that a military unit intentionally targeted civilians or recklessly bombarded them.