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The White House works to get Russian actions in Ukraine declared as war crimes

LEILA FADEL, HOST:

Ukraine says Russia has repeatedly hit civilian targets, including several hospitals. One haunting image that's been circulating on social media shows a pregnant woman wrapped in a blanket, bloody and bruised, surrounded by rubble in Mariupol after an attack on a maternity ward. That city is now running out of food and water, and more than 1,200 people have been killed. Ukraine is pointing to Russia's bombardment there as an example of Putin's disregard for civilian life. And President Zelenskyy is accusing the Kremlin of committing war crimes - claims that the Biden administration is also reviewing.

Here's Vice President Kamala Harris addressing a question about it in Poland yesterday.

(SOUNDBITE OF ARCHIVED RECORDING)

VICE PRESIDENT KAMALA HARRIS: Pregnant women going for health care being injured by, I don't know, a missile, a bomb in an unprovoked, unjustified war - absolutely there should be an investigation.

FADEL: Can Moscow be held accountable? With us now is Ambassador David Scheffer, who was the first U.S. ambassador-at-large on war crime issues in the 1990s. He also led the U.S. delegation to the U.N. talks establishing the International Criminal Court.

Good morning, Ambassador. Thank you for being on the program.

DAVID SCHEFFER: Good morning. Pleased to be with you.

FADEL: So first, if you could help us understand, what constitutes a war crime?

SCHEFFER: Well, a war crime occurs during an armed conflict. So it's not a peacetime crime. It involves armed conflict, which obviously is taking place in Ukraine. And it's a commission of acts that are in violation of what we might call the most basic fundamental civilized rules of combat in the field. It is not illegal per se for combatants to wage war against each other, per se. But they have to do it in a certain way. And that has developed over, oh, mostly since the mid-19th century, a series of rules that have been memorialized in conventions, as well as in what we call customary international law so that combatants fight each other with, shall we say, a minimum level of civilized conduct, but that they also do so so as to protect civilian populations during combat to ensure the proper protection of prisoners of war and to ensure that particular types of weapons, such as chemical weapons, biological weapons, expanding bullets, are not used during combat. So there's a large body of law that is directly focused on war crimes.

FADEL: So based on that, what's your assessment of Russia's invasion of Ukraine so far? Do you see evidence of possible war crimes?

SCHEFFER: Well, that's undoubtable. Of course that is taking place. This is the most heavily covered combat situation we have seen in history on a day-by-day, hourly basis. So the evidence is coming in by video and by testimony and audio from Ukraine. But I would just say that we need to keep in mind that this all started because the crime of aggression has occurred. In other words, the Russian forces have invaded Ukraine. That itself is illegal.

So one can argue, although this is not how one does it usually in a courtroom - but certainly in the larger political environment, one can argue that having invaded Ukraine, everything the Russian military does in Ukraine that injures civilians, that violates these laws of war - everything that they do is actually illegal. In other words, every firing of artillery, every firing of missiles, every movement of those convoys into civilian areas - all the destruction of civilian property itself is per se illegal because it's part of a war of aggression. Now, ultimately, we'll parse out individual evidence - incidents as to, you know, whether they're a war crime or a crime against humanity, et cetera.

FADEL: Right. The International Criminal Court is preparing to investigate possible Russian war crimes in Ukraine, as you mentioned. But even if the court does find evidence of that, what are the realistic consequences for a superpower like Russia who is not a member of the court?

SCHEFFER: Oh, I think they're extremely real. The ICC has jurisdiction over the territory of Ukraine. So it's officially investigating with the support of, you know, 39 governments that referred it to Ukraine. And the United States is certainly supporting that investigation as well, even though it's not a party to the court. And when that investigation proceeds, I would predict that within two to three months, you will actually see indictments come down because the criminality is so obvious.

FADEL: Yeah.

SCHEFFER: They will come down against Putin and the generals. And once they do that, then the sanctions will not be lifted until they're surrendered.

FADEL: Ambassador David Scheffer - thank you for speaking with us.

SCHEFFER: Thank you. Transcript provided by NPR, Copyright NPR.