US determines Russia has committed war crimes in Ukraine

Secretary of State Antony Blinken on Wednesday said the Biden administration has determined that Russian forces have committed war crimes in Ukraine.

"Our assessment is based on a careful review of available information from public and intelligence sources. As with any alleged crime, a court of law with jurisdiction over the crime is ultimately responsible for determining criminal guilt in specific cases," Blinken said in a statement.

"The U.S. government will continue to track reports of war crimes and will share information we gather with allies, partners, and international institutions and organizations, as appropriate. We are committed to pursuing accountability using every tool available, including criminal prosecutions," Blinken added.

The formal assessment comes a week after President Biden said he believes Russian President Vladimir Putin is a war criminal, something Blinken echoed based on reports on the ground of attacks on civilians.

In Wednesday's announcement, Blinken pointed to "numerous credible reports of indiscriminate attacks and attacks deliberately targeting civilians, as well as other atrocities."

"Russia’s forces have destroyed apartment buildings, schools, hospitals, critical infrastructure, civilian vehicles, shopping centers, and ambulances, leaving thousands of innocent civilians killed or wounded," Blinken said. "Many of the sites Russia’s forces have hit have been clearly identifiable as in-use by civilians."

News reports in recent days have detailed strikes on a maternity hospital in the city of Mariupol, as well as a theater where civilians were sheltering. Officials have determined that more than 2,400 civilians have been killed in Mariupol alone as of Tuesday, Blinken said, and the United Nations has confirmed more than 2,500 civilian casualties outside of Mariupol.

Prosecution of “war crimes” typically involves a vigorous, often years-long legal process, and international investigators are already beginning to look at Russia’s conduct during its invasion of Ukraine.

The U.S. assessment is likely to further ratchet up pressure to isolate Moscow from the international community and could further galvanize support for Ukraine.

Officials have warned the attacks on Ukraine could worsen, with Biden, Blinken, national security adviser Jake Sullivan and others raising the possibility of Russia deploying chemical weapons.

It’s unclear if the Biden administration can take specific actions in response to the determination of war crimes, but officials had earlier said their documenting evidence of such atrocities would be shared with international investigators and courts that hold jurisdiction to prosecute such cases.

Beth Van Schaack, Ambassador at Large for Global Criminal Justice and who is documenting the war crimes, said it's the intention of the administration to make public what specific instances they have determined to be war crimes, but could not offer a timeline. 

“We have to do a full assessment of the information that's available to us and make sure that it doesn't compromise any means and methods of collection, but I think keeping the world apprised of what's happening on the ground in Ukraine is extremely important.”

Schaack added that she would not preview any action the administration may take in terms of sanctions related to a war crimes determination, and did not rule out that Putin, as commander in chief of Russia’s armed forces, could be held liable for war crimes in a court that holds jurisdiction. 

“There are doctrines under international law and domestic law that are able to reach all the way up the chain of command.”

Schaack said the U.S. would share information of war crimes “with our friends and allies and with international and multilateral lateral institutions as appropriate,” and cited possible legal venues as courts in the U.S., courts in Ukraine, and regional courts. 

The ambassador did not rule out sharing evidence with the International Criminal Court, but said “there have been no specific asks.” 

The U.S. is not a party to the Rome Statute, the treaty that governs where the ICC holds authority, and the Trump administration imposed sanctions on court officials in opposition to their investigations into alleged U.S. war crimes in Afghanistan.  

Schaack did not address U.S. sanctions on the court but said that because the U.S. is not a member of the court there are no “affirmative cooperation duties.” 

While Russia and Ukraine are also not parties to the Rome Statute, the ICC holds jurisdiction of possible crimes committed on Ukrainian territory since Kyiv accepted the courts jurisdiction in two declarations, in 2014 and 2015 and in response to Russia’s then-invasion in eastern Ukraine and annexation of the Crimean peninsula. 

Updated 3:24 p.m.