War crime claims abound, but prosecutions will be difficult to obtain

President Joe Biden and prominent members of his administration have made a stark claim in recent weeks — that Russian President Vladimir Putin is a war criminal and that war crimes are being committed by Russian forces against Ukrainian citizens.

While such claims carry significant political and legal weight, obtaining prosecutions for the crimes could take years — if they happen at all.

US GOVERNMENT: 'RUSSIA'S FORCES HAVE COMMITTED WAR CRIMES IN UKRAINE'

After avoiding the term for a few weeks, the White House began launching war crime accusations in mid-March.

"I think he is a war criminal," Biden said of Putin on March 16.

Secretary of State Antony Blinken laid out the case for Russian war crimes in much more detail earlier this week, while Pentagon spokesman John Kirby said Monday that the Defense Department has seen evidence that Russian forces are committing war crimes.

The process of prosecuting those crimes can happen in a few different ways but is most commonly handled via the International Criminal Court, headquartered in the Netherlands and operating under international law. It may be years before Russian commanders and generals face prosecution, much less Putin.

"It's not realistic to think anything will happen any time soon," said Marquette University professor Mark Berlin, who teaches international law.

The ICC has opened an investigation into alleged war crimes in Ukraine at the urging of 39 member countries. Neither Russia, Ukraine, nor the United States is part of the ICC, but Ukraine allowed the group jurisdiction in 2013. Berlin said the investigation may yield indictments within the next few months.

The process of carrying those indictments out is often much slower. For example, the ICC only recently announced it was seeking arrest warrants related to Russia's 2008 war against Georgia.

One key complication is that ICC trials must be held in person, meaning the accused must be captured or turn themselves over first. This means that Russians would be unlikely to face an arrest even if warrants were issued so long as they remained in their home country. Should they cross the border into a country that is part of the ICC, that nation would be legally obligated to make an arrest.

The effort to document war crimes for prosecution in the near or long term is widespread. Along with government agencies from the U.S. and Europe, organizations such as Human Rights First, Bellingcat, and journalism advocacy group Reporters Without Borders are working to document crimes.

"To date, [Reporters Without Borders] has forwarded two formal submissions to the International Criminal Court chief prosecutor on a number of events and is preparing further," said spokeswoman Pauline Ades-Mevel. "It also supports efforts by competent national judicial authorities to investigate crimes against journalists."

Footage obtained by reporters, military intelligence, and citizens can all be used as evidence of war crimes.

"You can see it for yourself in just the video footage that you guys show every day," Kirby said during an appearance on Fox News.

The ICC specifically can prosecute war crimes, crimes against humanity, genocide, and the crime of aggression.

Blinken singled out Russian attacks on apartment buildings, hospitals, schools, and shopping malls as potential war crimes, in particular a maternity ward and a theater in Mariupol that was clearly marked as sheltering children. The State Department says it has seen "numerous credible reports" of attacks indiscriminately and deliberately targeting civilians.

Russia has denied all allegations as "unacceptable and unforgivable" and "putting Russian-American relations on the verge of rupture."

Even in the absence of prosecutions, highlighting potential war crimes can be politically useful, Berlin added, such as in treaty negotiations and in pressuring companies not to do business with certain countries or individuals. The U.S. or European Union could demand cooperation with war crimes investigations as a condition of easing sanctions, for example.

"It's highly stigmatizing and makes you look bad, which does have consequences," Berlin said. "The allegations are partly responsible for making it politically possible to see the sanctions we've seen."

And the threat of prosecution, no matter how distant, can have an effect as well.

The U.S. is already supporting several initiatives to document and preserve evidence of possible war crimes, according to the White House, with new efforts on the way, including the establishment of a conflict observatory designed to hold Russia accountable.

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Given the inherent difficulties of documenting wars and the distance between top leaders and ground-level troops, prosecutions may be especially difficult to obtain at the highest levels of the Russian government.

"It's really hard to connect the actions of the people at the top to the actions of the people at the bottom," said Berlin. "But there's an unprecedented amount of real-time documentation going on."