Why you may not see many accused Russian war criminals tried in U.S. courts
It is a truism that everyone wants perpetrators of war crimes held accountable, and no one debates that victims of these terrible offenses deserve justice. That said, to what extent are U.S. courts the best venue for such prosecutions when no Americans are victims or perpetrators?
On February 18th the U.S. Department of State (DoS) issued a fact sheet entitled “Supporting Justice and Accountability in Ukraine.” Citing the “brutal war of choice that President Putin is waging against Ukraine,” it details U.S. efforts to facilitate actions designed “to ensure that those responsible for atrocities in Ukraine are held accountable, whether through domestic judicial processes or international mechanisms and institutions.”
Will U.S. support extend to actually trying accused war criminals? Maybe. Among the enumerated actions, the fact sheet says:
In December, with strong Administration support, Congress amended the War Crimes Act to establish jurisdiction over persons who are present in the United States after committing war crimes in other countries, regardless of the victim’s or offender’s[.] The legislation also eliminates the statute of limitations for certain war crimes. This provision will facilitate prosecutions of, among others, foreign nationals who commit war crimes in Ukraine and later travel to the United States.
The amendment to the War Crimes Act is significant. That change—called the “Justice for Victims of War Crimes Act” —establishes universal jurisdiction over war crimes (though, as a scholar has noted, “[i]t does not apply to other international crimes such as genocide and crimes against humanity.”)
Unlike most U.S. criminal law, the amendment creates jurisdiction even if there are no American victims or perpetrators. Rather, all that’s required is for “the offender [to be] present in the United States, regardless of the nationality of the victim or offender.”
Though it would seem unlikely that accused war criminals would voluntarily travel to the U.S., extradition procedures could be used where available. Other methods might be employed as well. As the U.S. Department of Justice (DoJ) Manual notes:
In United States v. Alvarez-Machain, 504 U.S. 655 (1992), the Supreme Court held that a court has jurisdiction to try a criminal defendant even if the defendant was abducted from a foreign country against his or her will by United States agents.
DoJ further indicates that Alvarez-Machain type actions “by government agents or… private persons, like bounty hunters or private investigators” are still possible provided prosecutors get advance approval from DoJ. In short, there are a variety of ways the “present in the United States” requirement could be fulfilled.
Consequently, given that Ukraine claims 66,000 war crimes have been reported, should we expect to see a significant number of Russians tried in U.S. courts? I don’t think that will happen here, and following are some of the reasons why.
The prosecution of war crime allegations is difficult and costly
War crimes charges can be difficult to prosecute. In fact, Politico points out that historically “successful prosecutions are rare.” It says:
[War crimes] are notoriously difficult to prove and prosecute. Even with the right evidence and eyewitness accounts, the murder of civilians by Russian forces may not present a clear cut case. The international legal basis for prosecution is not universally accepted, and context, intent and often geopolitics matter. War crimes have often been too slippery to stick, with obvious offenders sometimes escaping conviction.
To illustrate the potential difficulties, let’s consider an accusation frequently arising out of the conflict in Ukraine, that is, that Russians are deliberately attacking civilian targets.
In Axios Laurin-Whitney Gottbrath explains that such “[w]ar crimes contain two primary elements: a violation that took place during an armed conflict, and ‘intent and knowledge’ of the act and conflict.” Trying to prove those elements can get complicated.
Gottbrath quotes Alex Whiting, a Harvard Law School professor who is a prosecutor at the Hague, as saying: “You have to first establish that there was no military target nearby, and if there was, the force was disproportionately used, and then you have to prove that it was intentional.”
Figuring out that intent, and proving it in court, could be difficult, as it requires, in a sense, getting into the mind of the alleged perpetrator.
Of course, when the public sees horrifying examples of destroyed buildings in civilian areas it is easy, as Professor Geoff Corn wrote in a Lawfire® post, to simply assume that a war crime must have occurred. However, the law does not work that way. He writes:
[T]he true focus of legal compliance during hostilities [is] whether the attacking commander made a reasonable judgment at the time the attack was launched.
This must be determined by recreating, as best as possible, the situation confronted by the commander, to include the importance of the target, the enemy efforts to shield the target by embedding it among civilians, and if and how the commander implemented measures to reduce civilian risk such as issuing warnings or selecting the most risk-averse weapons and tactics available.
The presence of damage to civilian structures or death or injury to civilians does not alone constitute a war crime. (Emphasis added).
Proving intent could be especially challenging. For example, back in August, Newsweek reported:
Is Russia intentionally killing civilians? It seems outrageous to even pose the question, given the scope of bloodshed and the many strikes on hospitals, schools, homes and shopping centers that have been reported.
But Newsweek has found that determining why such objects were bombed often reveals a more difficult narrative. In most incidents, the intended Russian targets were indeed military in nature. And there are many cases where civilians were killed because weapons—Russian and Ukrainian—just failed to work.
Moreover, “dual use” targets, that is, those that are used by both the military and the civilian population, can be lawfully targeted in certain situations. (See, e.g., “Is attacking the electricity infrastructure used by civilians always a war crime?”).
Even the apparent deliberate killing of a civilian is not always a war crime as civilians can be lawfully targeted if they directly participate in hostilities.
In Ukraine, this can be especially complicated because thousands of civilians have used their smartphones to pass on the location of Russian troops for targeting by Ukrainian forces, and others have used their computers to launch hostile cyber operations against Russia. As the International Committee of the Red Cross recently warned, such activities might make the Ukrainians legal targets.
The example of the International Criminal Court (ICC) is not encouraging
There are potentially a number of forums to litigate war crimes, but the most prominent of the existing international tribunals is the International Criminal Court (ICC). Regrettably, the history of the ICC is an example of how difficult and costly these cases can be.
The ICC bills itself as “the world’s first permanent international criminal court,” and it has been amply supported. In July of 2022 the Associated Press (AP) reported the ICC “has spent more than 2.2 billion euros ($2.3 billion) over its two-decade life.” Its budget for 2023 is over $180,000,000.
What has the ICC produced for that sum? The AP said last year that the ICC “has registered only three war crimes convictions and five for interfering with justice in the 20 years since its founding treaty, the Rome Statute, came into force on July, 1, 2002.” (The ICC is now claiming its judges have “issued 10 convictions and 4 acquittals.”)
Regardless, even if the ICC’s apparent institutional cost of $230,000,000 per conviction is more than what it might be in the U.S., the figure still could understandably give U.S. prosecutors pause as they assess the resources they would have to devote to these cases, and the opportunity cost of doing so.
Due process challenges under U.S. law
What U.S. prosecutors may find especially discouraging about the ICC’s lackluster record is the fact that it was achieved by a court that doesn’t have the due process requirements that American law and the U.S. Constitution mandate.
Moreover, collecting vital evidence from the chaos of a battlefield is obviously problematic, and could be especially so in the case of Ukraine because the ‘crime scenes’ may not have been preserved in a way that readily complies with U.S. legal standards. Why? The Washington Post reports that the ongoing war crimes investigations in Ukraine represent an “unprecedented endeavor” but one that also raises possible difficulties:
[T]he array of investigations — involving more than a dozen countries and a slew of international and human rights organizations — has raised concerns about duplication and overlap . . . .
Noting “18 countries that have started their own criminal investigations into war crimes in Ukraine” the Washington Post quotes Dr. Tidball-Binz, a U.N. special rapporteur as saying:
Without coordination of responsibilities and of efforts between various bodies, there is a considerable risk of overlap and duplication to the detriment of the effectiveness and efficiency of investigations . . . . Proper coordination can also prevent the re-traumatisation of victims and witnesses arising from being interviewed multiple times by different investigators, and ensure that interviews fit into the overall investigative strategy.
However well-intentioned, multiple investigations by hundreds (if not thousands) of investigators can present U.S. prosecutors with particular challenges because necessary U.S. procedures may not have been followed by persons unfamiliar with the stringent requirements.
Though certainly not a complete listing, here are a few additional illustrations of the hurdles that U.S. criminal law procedures could pose with respect to war crimes cases coming out of Ukraine:
Reportedly, an overwhelming amount of digital evidence is coming out of Ukraine, much gathered not by trained criminal investigators but rather by ordinary citizens armed with cell phones and other electronic recording devices.
Digital evidence can be admitted in U.S. courts, but as the National Institute of Justice points out, “[c]omputers, cellphones, GPS units, cameras, and other devices that contain digital evidence must be properly collected, handled, and processed.” Whether that has been done in Ukraine in a way that meets U.S. standards remains to be seen.
Efforts are being made to ensure digital evidence collected in Ukraine is forensically valid. The Berkley Protocol on Digital and Open Source Investigations shows much promise in this regard, but it has yet to be really tested in the courts. Consider this from a Just Security article:
When it comes to meeting the evidentiary standards for venues like the International Criminal Court, Steve Kostas [a lawyer with the Open Society Justice Initiative] says this will be a test for the community. While there has been a great deal of learning and effort put into capacity building around the gathering of open source evidence, there is less experience with using it in legal proceedings.
“The Berkeley protocol and the methods that people have been employing haven’t really been put to the test at many proceedings yet,” said Kostas. (Emphasis added).
Authentication and chain of custody
In U.S. courts, evidence must be authenticated before being admitted, and a proper chain of custody is essential to that process. As an expert explains:
To prove someone guilty, a prosecutor must prove that the evidence presented in court is the same evidence that was recovered at the scene of an alleged crime. They must be able to show that the evidence was handled properly and was not contaminated or tampered with. If law enforcement does not properly handle evidence, the evidence can be challenged on the grounds that it was tampered with, that test results are faulty or inaccurate, or that evidence was planted at the scene of a crime.
If dozens or more people have handled a particular item, it can make it particularly difficult to establish chain of custody, especially if the key witnesses are overseas. With so many investigators and others in Ukraine potentially handing evidence, authenticating it and validating the chain of custody could be challenging.
U.S. law requires prosecutors to disclose what can be a very significant amount of information to the accused prior to trial. Here’s what the DoJ Manual says in part:
Government disclosure of material exculpatory and impeachment evidence is part of the constitutional guarantee to a fair trial. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and impeachment evidence when such evidence is material to guilt or punishment . . . . Because they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence.”
Additionally, the Manual requires “Disclosure of exculpatory and impeachment information beyond that which is constitutionally and legally required.” Specifically:
Department policy recognizes that a fair trial will often include examination of relevant exculpatory or impeachment information that is significantly probative of the issues before the court but that may not, on its own, result in an acquittal or, as is often colloquially expressed, make the difference between guilt and innocence. As a result, this policy requires disclosure by prosecutors of information beyond that which is “material” to guilt as articulated in Kyles v. Whitley, 514 U.S. 419 (1995), and Strickler v. Greene, 527 U.S. 263, 280-81 (1999).
In other words, prosecutors need to dig through what is a mountain of electronic evidence coming out of Ukraine that may have been gathered by investigators and others not schooled in the demands of the U.S. justice system.
Yet prosecutors must nevertheless take on what could be a very resource-intensive task in order to ensure exculpatory and impeachment evidence in their custody is turned over to the accused in a timely manner as U.S. law required
As noted above, there is a huge amount of electronic evidence involved in cases coming out of Ukraine, and it could come into the possession of prosecutors. Even in U.S. cases, the sheer volume of such evidence is increasingly overwhelming prosecutors. Consider this from a recent blog post:
The conundrum DOJ faces is borne out of a combination of lack of resources and deluge of electronic evidence. Law enforcement investigations often involve multiple law enforcement partners at the federal, state, and local level. Each agency has varying degrees of sophistication with electronic evidence collection, understanding of discovery obligations, and procedures to handle evidence collection. When the prosecution team is that large and diverse, problems arise due to a lack of control, consistency, and communication within the team.
Again, in the case of Ukraine, the problems can only be amplified with a large number of investigators and others from multiple countries and jurisdictions involved in evidence gathering.
In the 1966 case of Sheppard v. Maxwell, the Supreme Court reversed a murder conviction because the “trial judge did not fulfill his duty to protect [the accused] from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom.”
In coming to that holding, the Court cited precedents which counseled that “[l]egal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” It further noted that the “Court has insisted that no one be punished for a crime without ‘a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.’”
Since Sheppard, courts have taken various remedial steps to mitigate the potential adverse effects of pretrial publicity, including: more extensive voir dire, change of venue, gag orders, recusal and more.
Still, the American Psychological Association says:
Though the Sixth Amendment guarantees the right to a fair and impartial trial, multiple studies have demonstrated the biasing impact of pretrial publicity on juror decision-making. Studies have shown that exposure to pretrial publicity affects jurors’ perceptions of witness testimony, defendant credibility, defendant culpability, and ultimately their verdicts. Research also suggests that negative pretrial publicity may increase the likelihood of guilty verdicts, whereas positive publicity may decrease that likelihood.
It is hard to imagine a more hostile environment for Russians. According to the Pew Research Center, 70% of “Americans now consider Russia an enemy of the United States.” Furthermore, as the title of a Time Magazine article puts it, “Russians Around the World Are Facing Abuse and Harassment Amid the Ukraine Conflict.”
Moreover, U.S. government leaders have repeatedly expressed the rather formal conclusion that Russians are guilty of war crimes. None of these assertions carried any suggestion of the axiom that in this country there is a presumption of innocence.
While it may not be impossible for a Russian to get fair trial in the U.S., prosecutors—and, especially, trial judges—face significant challenges in finding an unbiased jury and in creating a judicial forum that is “free of prejudice, passion, [and] excitement” as the Constitution requires.
Again, this blogpost is hardly a complete inventory of all the possible legal issues that could arise in a prosecution of an alleged war criminal in a U.S. court.
For example, unlike many non-U.S. venues, American courts have rules that can exclude even probative evidence if it is improperly gathered. Furthermore, the U.S.’ “fruit of the poisonous tree doctrine” can extend “the exclusionary rule to make evidence inadmissible in court if it was derived from evidence that was illegally obtained.”
Proving evidence was properly gathered may require witnesses from Ukraine and other foreign jurisdictions, something that may be extremely difficult to do if witnesses choose not to voluntarily travel. In general, the U.S. cannot compel foreign witnesses to travel to the U.S., and alternative methods of obtaining testimony–to include testimony vital to the defense–can be arduous and even impossible.
The availability of witnesses is especially a concern as the use of hearsay evidence—common in foreign courts—was substantially restricted after the 2004 Supreme Court decision in Crawford v. Washington.
Crawford generally bars testimonial evidence (e.g., written witness statements and other documents) absent showing compliance with the Constitution’s Confrontation Clause, which typically requires the calling of witnesses by the prosecution. The Supreme Court’s recent decision in Hemphill v. New York, suggests the Court will not be backing away from Crawford any time soon.
Some defendants may also argue that the amendment to the War Crimes Act is not retroactive (though the better argument seems to be that “the Act poses no issues of retroactivity“).
Finally, depending upon how prosecutors proceed, defendants may raise a selective prosecution claim. In the 1966 decision in U.S. v. Armstrong the Supreme Court explained that a “selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.”
Everyone is understandably thinking of Russian war crimes, but the U.N. has said that “both Russia and Ukraine have tortured prisoners of war (POWs).” Though largely moribund after Armstrong which made presenting the selective prosecution defense nearly impossible, it still exists. Thus, if for example, only Russians are prosecuted, a claim might be made that the prosecution is impermissibly based on national origin.
Though not in a war crimes setting, a lawyer recently argued that “despite the long odds, defense lawyers can and should continue to consider making selective prosecution arguments for several important strategic reasons.” (See here for his arguments.)
For the reasons indicated above, trying war crimes case in U.S. courts is especially formidable for several reasons, including the due process requirements of American jurisprudence. There are no real exceptions to those requirements even though the evidence and witnesses in war crimes cases emerge from the uniquely profound disorder, confusion, and danger of battlespaces torn by savage, high-intensity modern war.
These difficulties may help to explain why there has never been a prosecution under the War Crimes Act. Consequently, despite what people may think given the pronouncements of U.S. leaders and media coverage of Ukraine, obtaining convictions in some or many of these cases will no easy thing—if achievable at all.
Others seem to agree. In an interesting essay, “The Siren Song of Universal Jurisdiction: A Cautionary Note,” two military lawyers—Maj Steve Szymanski and Lt Col Peter C. Combe—analyze the Constitutional and practical challenges of universal jurisdiction prosecutions in U.S. courts.
They conclude—and I agree—that “the success of any effort by the U.S. government to exercise universal criminal jurisdiction over war crimes, grave breaches of LOAC, or other international crimes is far from assured.”
Were the U.S. to try—and lose—a war crimes case, the reputational harm could be substantial. Explaining how U.S. due process requirements can complicate criminal prosecutions to a world where such rules frequently do not exist would be tricky, and not necessarily effective. An acquittal or dismissal, even if on purely technical grounds, could provide a propaganda victory to a hostile power.
Even winning could carry risks. Szymanski and Combe contend that “should the United States successfully prosecute and detain nationals of powerful autocratic states, there is every reason to believe that those States would engage in retaliatory and coercive prosecution of U.S. nationals.”
So what to do? Some experts believe the ICC or other international tribunal can effectively address war crimes allegations arising out of Ukraine. Lawfire® contributor Adam Oler is, however, skeptical and suggests in an extremely well-worth-reading post a fundamentally different approach to accountability (see here).
I believe we’ll see continued prosecutions in Ukrainian domestic courts and, perhaps, the ICC or even an ad hoc international tribunal of some kind. A number of trials may also occur in third party nations with universal jurisdiction like the U.S..
I do not, however, believe many trials—if any—will take place in U.S. courts. If they do, it should be expected that they will be costly, lengthy, and very challenging to prosecute successfully.
Although the amendment to the War Crimes Act may have raised expectations about U.S. trials, it would be wise to temper those expectations both here and abroad–even as we vigorously support efforts to find justice for war crime victims.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!