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The number of Russian crimes in Ukraine, committed only since the beginning of the large-scale invasion and registered by the Ukrainian General Prosecutor’s Office, has exceeded 70 thousand, the General Prosecutor’s Office of Ukraine reported on March 14.

At a briefing for Ukrainian journalists in Kyiv, the head of the Department of Combating Crimes Committed in the Conditions of Armed Conflict of the Prosecutor General’s Office, Yuriy Belousov, said that more than 20 countries of the world have opened proceedings under their national legislation due to Russia’s war crimes in Ukraine.

He added that there is a “master case”, a crime that is the root cause of the rest of Russian crimes – a crime of aggression, where Ukrainian investigators are trying to document the involvement of the highest military and political leadership of the Russian Federation. In particular, the Minister of Defense of Russia, the head of the main staff, heads of intelligence agencies, senators and deputies of the State Duma, the head of the Central Bank of the Russian Federation, in total – 642 suspects.

The Group of Seven is working on an international mechanism

Meanwhile, the United States and members of the Group of Seven are working on the creation of an International Tribunal, or other mechanism, through which Russia can be held accountable for crimes against humanity and war crimes in Ukraine. Deputy Secretary of State for Political Affairs Victoria Nuland said this during a hearing in January at the Committee on International Relations of the US Senate.

“By the summer, I would like this mechanism to appear,” said a senior representative of the US State Department.

However, according to a report by the New York Times (NYT), not all government departments in Washington share the optimism of American diplomats. The US Department of Defense, the paper says, citing current and former officials, is blocking the transfer of intelligence-gathered evidence of Russian atrocities in Ukraine to the International Criminal Court (ICC) in The Hague.

The evidence, the newspaper says, concerns exactly those cases that, according to press reports, the team of ICC prosecutor Karim Khan is preparing for consideration – the abduction of children and the shelling of civilian infrastructure.

Why does America not have an unambiguous attitude to the ISS?

“U.S. military leaders oppose court assistance in investigating Russians because they fear setting a precedent that could help pave the way for prosecution of Americans,” the NYT article said.

The International Criminal Court was created in 1998 specifically for such situations involving crimes of aggression and atrocious war crimes, says anthropologist and genocide researcher Alex Ginton in a column for the Los Angeles Times.

But the director of the Center for the Study of Genocide and Human Rights at Rutgers University in Newark, USA, points out that although the Bill Clinton administration helped negotiate the Rome Statute, which established the court, and signed the treaty, the US never joined court, because the “fight against terror” got in the way.

Why did the fight against terror cast a shadow on the American military?

The George W. Bush administration withdrew the U.S. signature and passed legislation and international agreements to prevent the ISS from prosecuting U.S. citizens for violations during the “war on terror.”

Amid reports from Iraq and elsewhere about the actions of the US military, Professor Ginton says, the risk that US forces were involved in brutal crimes, including torture and executions, was too high.

Relations with the ISS became even more tense when the court in The Hague began to investigate the actions of the US military in Afghanistan. Then the Trump administration imposed sanctions on the prosecutor of the ICC. In September 2021, the court’s successor as chief prosecutor, Karim Khan, “deprioritized” the investigation into the actions of the US military, stating that “the worst crimes were committed by the Taliban and ISIS.”

How did the attitude towards the ISS change with the Russian invasion?

In December 2022, the US Congress changed legal restrictions on US judicial assistance and allowed the US to assist in investigations and possible prosecutions related to the war in Ukraine.

In one of the laws, Congress expanded the jurisdiction of US prosecutors to charge foreigners with war crimes committed abroad. This law was particularly welcomed in Kyiv, noting that Russian war criminals could thus be convicted in the US for crimes committed in Ukraine.

Another provision created an exception for providing funding and other assistance to the ICC, which allows it to assist in “investigations and prosecutions of foreign nationals related to the situation in Ukraine, including to support victims and witnesses.”

The USA, along with many other countries, accused Russia of committing war crimes. President Joe Biden, after discovering the mass killings in Buch, declared that Russian troops were committing acts of genocide and called for the trial of war criminals.

But within the Biden administration, NYT correspondents note, there is an ongoing political dispute over whether to help the ISS. One of the arguments that the newspaper’s correspondents learned about is that Russia is not a party to the treaty establishing the court. So the Pentagon does not want to set a precedent.

Legal experts believe that the military’s concerns are exaggerated. Because according to the treaty, the court should be used only for those countries that do not have functioning investigative systems capable of dealing with serious international crimes committed by their citizens. The United States does not fit that description.

Has Ukraine joined the ISS?

Ukraine did not join the Rome Statute for the same reasons – fear of persecution of Ukrainian military personnel and volunteers outside of Ukraine.

Ukraine signed the Rome Statute on January 20, 2000, but never ratified it, although after the Association Agreement with the EU in 2014, it undertook to ratify this document.

Instead of ratification in 2014, Ukraine voluntarily accepted the jurisdiction of the ICC, and in March 2022, 39 countries referred cases in Ukraine to the ICC. This allows the prosecutor of the ICC to start an investigation without obtaining the court’s permission.

How to prosecute Russian criminals?

In the past, the United Nations Security Council created special tribunals to try crimes in places like the former Yugoslavia or Rwanda. But with Russia, which has the right of veto in the Security Council, such solutions are not considered.

How then to bring the Russians to justice? First, gather evidence, legal experts say. Dozens of Western countries have joined in helping Ukraine collect and record Russian crimes – they collect witness statements, digital evidence such as satellite images, video materials.

Next, take them to the courts. Ukrainian courts have already handed down almost 300 sentences to Russian soldiers.

International experts say that demonstrative cases are important, Ukrainian human rights defenders, including Nobel laureate Oleksandra Matviychuk, insist that it is possible to document every crime and prosecute every criminal.

Debate continues as to what type of court should use this evidence. Some of the trials will take place in Ukraine, some may be handled by international courts. The European Union agreed to create a tribunal in the case of Russian aggression

But the biggest crimes, according to many experts, should be tried by an international court with broad powers and international legitimacy. And at the moment, such a court, in their opinion, is the International Court of Justice, which needs the full support of the United States.

According to the NYT newspaper, all government structures, except the Pentagon, agreed that cooperation with the ISS would be necessary. The decision rests with President Biden.