The NPR Politics Podcast - U.S. Investigations Into War Crimes Can Get Complicated

Episode Date: April 1, 2024

The Justice Department launched a team in December 2023 to look into allegations of war crimes committed during Russia's war in Ukraine. The team isn't limited to looking only at that conflict, though — but in the months since the conflict between Israel and Hamas in Gaza, the DOJ has been nearly silent on the topic of possible war crimes there.This podcast: political correspondent Sarah McCammon, justice correspondent Ryan Lucas, and national security correspondent Greg Myre.This podcast was produced by Jeongyoon Han & Kelli Wessinger, and edited by Casey Morell. Our executive producer is Muthoni Muturi. Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for this podcast and the following message come from Autograph Collection Hotels, with over 300 independent hotels around the world, each exactly like nothing else. Autograph Collection is part of the Marriott Bonvoy portfolio of hotel brands. Find the unforgettable at AutographCollection.com. Hi, this is Stephanie, and I've brought my mom and my teenage daughter to D.C. for spring break. I'm excited to finally be in the homeland of the pod. This podcast was recorded at 101 p.m. on Monday, April 1st, 2024. Things may have changed before you hear this, but one thing's for sure,

my daughter will still be dying of secondhand embarrassment as I record this on the steps of the National Archive. Enjoy the show. You're doing your job as a mom. Yeah, my kids are very familiar with that sentiment. Hopefully, it's not raining the whole time you're here. Hey there, it's the NPR Politics Podcast. I'm Sarah McCammon. I cover the presidential campaign. I'm Ryan Lucas. I cover the Justice Department. And I'm Greg Myrie. I cover national security. We're going to shift gears now. Today on the show, war crimes and how the Justice Department

is responding to allegations of them in the two major conflicts happening right now between Ukraine and Russia and between Israel and Hamas in Gaza. Ryan, you've been doing a lot of reporting on this. The U.S. has said it has an interest in prosecuting war crimes in Ukraine specifically. So let's start there. Talk to us about what the U.S. is doing. Well, the U.S. has taken a very aggressive, very public, very hands-on approach to combating war crimes in Ukraine. It was actually less than four months after the Ukraine conflict started, the attorney general went there. He had a news conference with his Ukrainian counterpart, and this is a bit of what he said.

The United States is sending an unmistakable message. There is no place to hide. We and our partners will pursue every avenue available to make sure that those who are responsible for these atrocities are held accountable. On that same trip, he also announced that they were creating a special team to focus on investigating and looking into prosecuting possible Russian war crimes in the Ukraine conflict. And they've actually brought a case. It was last December where they brought a case charging four Russian soldiers, accusing them of torturing and abducting an American citizen in southern Ukraine. So it's been a very forward-leaning approach from the Justice Department on the question of possible Russian

atrocities in Ukraine. Okay, I want to understand that a little bit better. You mentioned the involvement of an American citizen, but how does that prosecution work, Ryan? I mean, it's not like the U.S. is just going to start arresting people all over the world. So what gives the U.S. the right to get involved in this conflict? U.S. law gives the Justice Department the jurisdiction to bring charges when either the victim or the perpetrator of war crimes are an American citizen. Now, that was expanded last year, again, in response to the Ukraine conflict to give the Justice Department actually more authority to investigate war crimes around the world, gave them the authority where if a suspected war criminal is on U.S. soil, regardless of the individual's nationality, if they're on U.S. soil, the Justice Department

would have the authority to prosecute them for war crimes. Greg, you know, Ryan mentioned that the U.S. has brought in some of the requirements for to get involved in prosecuting war crimes abroad. Now, Ukraine has specifically signaled its support for other nations to investigate what's going on with its war in Russia. How much does that give the U.S. license to be involved there? Well, it's certainly helped in the sense that there's more people who are active. And you're right, Sarah, Ukraine is working with the U.S.

It's also working with the International Criminal Court. Merrick Garland and the U.S. ambassador to Ukraine have said above and beyond what the U.S. is doing, that they're helping Ukraine conduct its own investigations, providing money, technology to help with things like forensic work. Ukraine says it's documented tens of thousands of abuses by Russian troops. It wants to document them in real time and is very open to outside help from other countries. Ukraine has prosecuted a few cases. The ICC, the International Criminal Court, is investigating others. And as Ryan mentioned, the U.S. Justice Department is also active investigating itself.

And how far does that authority extend? I mean, is the U.S. only able to look at Ukraine or does this open up, in theory, the opportunity for the U.S. to look at other conflicts? No, this applies to any conflict around the world. And that's part of what makes this interesting right now, is we've had this very aggressive, very public response from the Justice Department in response to alleged Russian atrocities in Ukraine. And here we are nearly six months into this other major war at the same time, the conflict between Israel and Hamas. The Attorney general has said just 29 words in public on the question of possible war crimes there. Here's the exchange that he had with Fox News reporter. Hamas murdered more than 30 Americans and kidnapped more during

their terrorist attack on October 7th. We are investigating those heinous crimes and we will hold those people accountable. That's the full extent of what Garland has said so far about possible war crimes in the Israel-Hamas conflict. I asked the Justice Department about its response to possible war crimes, allegations of possible war crimes in the Israel-Hamas conflict. They declined to comment. So if this DOJ war crimes team were to begin looking into the conflict between Israel and Hamas, that conflict, of course, involves Hamas, which has been designated as a foreign terrorist organization by the U.S. for almost 30 years. How might that designation factor into how the U.S. would investigate there? Well, I think first on the question of war crimes and Hamas' activities on October 7th, its attack on Israel that killed some 1,200 people.

They also took hostages, took them back to Gaza, are still holding more than 130 of them. Under the U.S. war crimes law, those actions clearly fall under the U.S. statute and the U.S. could prosecute them. Now, on the question of Hamas's status as a foreign terrorist organization, what that does is that opens up another avenue for the Justice Department to pursue. They could pursue terrorism charges instead of war crimes charges, or in addition to, but most likely instead of war crimes charges against Hamas. You know, there's a long history of the Justice Department prosecuting terrorism cases. It's something that is very familiar for U.S. courts to understand. And that would be a very powerful tool for the Justice Department to pursue going forward, as opposed to, say, the war crimes path. Greg, you've been covering these conflicts between Israel and Hamas, between Israelis and Palestinians for a long time. How do you see this one playing out in terms of the response from the international community and the U.S. when it comes to allegations of war crimes?

You know, the fighting has been going on for decades and specifically between Israel and Hamas in and around Gaza. And we haven't seen any prosecutions that I'm aware of in terms of war crimes. So this would be a first if it were to happen in any form, whether it was by the International Criminal Court, the U.S., or by any other body. It's been this ongoing conflict. They've been left to their own devices there. But this has been on a scale. The level of killing, the level of destruction is just unprecedented, and it's received all this additional international attention. And so it's quite possible we will see something come out of this war whenever it may end, perhaps even before it ends, that we just haven't seen before. Not that the kinds of things we're seeing are totally

different, but the scale and the scope is just dramatically larger with a lot more people being killed than any of the earlier conflicts. And that's actually in the conversations that I had with several experts, international law and war crimes experts about this story. One of them is a former US ambassador at large for war crimes issues, David Sheffer. He said, in essence, what you just said, the scale here, the enormity of the human suffering and the enormity of the destruction in Gaza is different from what we've seen previously. And it has risen to the point where just it demands scrutiny. Now, Israel says it is conducting its operations in Gaza in accordance with the laws of war. It rejects any allegations of war crimes by its forces.

Okay, we're going to take a quick break. And when we're back, some of the challenges the Justice Department faces in this space when it comes to bringing that kind of scrutiny. And we're back. Ryan, as we talk about all of this, one thing is standing out to me. So Ukraine has accused Russia of war crimes, and Ukraine is a U.S. ally. Both Israel and Hamas have been accused of war crimes in that conflict. And Hamas is not only a U.S.-designated terrorist organization, but Israel is, of course, a U.S. ally. How does the relationship between the U.S. and terrorist organization, but Israel is, of course, a U.S. ally. How does the relationship between the U.S. and the parties to these various conflicts affect how the Justice

Department pursues investigations? Well, that's kind of the million-dollar question here. This all boils down to, from the experts that I've spoken to, a question of political will, of whether this is something that the Justice Department really wants to do. The case with Ukraine is very simple. You have a U.S. ally that's been attacked by a U.S. adversary. There's a very clear case for the Justice Department to say Ukraine is in the right, Russia is in the wrong. The case here is more complicated because as you noted, there are allegations against Israel, a U.S. ally, of war crimes. The top U.N. rights official, as well as international rights groups have said

that there are several actions that the Israelis have done that could amount to war crimes under international law. The limits Israel's placed on humanitarian aid, Israel's forcible displacement of civilians, its extensive destruction of property, its alleged indiscriminate attacks on civilians and civilian infrastructure. There's also allegations of inhumane treatment by Israeli forces of Palestinian women. Those things, even under their narrower confines of U.S. law, could qualify as war crimes. But there is a number of challenges that would come into play with a U.S. investigation. One would just be a quite simple thing, which is access to evidence. The U.S. does not have access to Gaza right now. Greg, you've been in the region.

Can journalists get into Gaza? No, they really can't. The Israeli military is taking people in very briefly for very limited, closely supervised looks, but you can't really operate there. There's some very brave journalists from Gaza, Palestinians in Gaza who are still operating, including one that works for NPR. But journalists don't have access. Outside investigators wouldn't have access. Israel would have control over who could get in and who can't, even as it does with aid. So it's just very difficult to conduct any kind of formal investigation there. So that's sort of the starting point.

As we've noted, there's the question of the U.S. and Israel being close allies. And the Justice Department would have discretion as to whether or not it chooses to prosecute a case. It's not something that you could say for certain that they would or wouldn't do. So there is the question of access and carrying out an investigation. And then there is the basic question of there's obviously a lot of leeway of what you do and don't prosecute there. And it's quite possible the U.S. may not be as willing to prosecute an ally as it would be an adversary. It would be, as many of the experts that I had spoke with for this story said, it would be politically fraught. And actually, there are off-ramps kind of written into the law in order to pursue a war crimes prosecution. Actually, the attorney general or a

senior Justice Department official has to certify that it is in the public interest and necessary to secure substantial justice in order to pursue a prosecution. So there is that sort of off ramp where they could say, well, maybe, you know, in this instance, the Israeli authorities could pursue a prosecution on their own. Now, I will say I did speak with a rights group called Yesh Din in Israel that said Israel's track record on prosecuting its own for alleged crimes against Palestinians, particularly in Gaza, is not particularly good. Now, Israel says it is conducting its operations in Gaza in accordance with the laws of war. It rejects any allegations of war crimes by its forces. But as we've said, a lot of this does come down to political will. But what would simplify this to a great extent would be if an American citizen were involved as either an offender or a victim. And that's where I think the only prosecution that we've seen to date under the U.S. war crimes law, that was the one against the four Russians

in December for allegedly torturing and abducting an American citizen. I think that that could be a roadmap of if there is an American victim or perpetrator that would give the U.S. license to get involved without the geopolitical and political headache of a broader war crimes prosecution. And again, we're talking here about U.S. prosecutions by the Department of Justice. And Greg, one thing that complicates this conversation is the fact that the U.S. is not a party to the International Criminal Court, which is a body that investigates war crimes. First, maybe you could address why not. Right. So the court was formed, and President Bill Clinton at the time signed the treaty,

but it was not ratified by the U.S. Senate as it needs to be. So the U.S., to this day, is not among the more than 120 countries that are formal members of the International Criminal Court. The big concern in the U.S. is that American troops could be charged and prosecuted by this court. The U.S. military argues that there is a U.S. military justice system, and that's where cases should be handled. Well, Sarah, as you can imagine, critics will say this is a system likely to favor U.S. troops and therefore is not the best way to handle these cases. We should also note that the U.S. does not oppose the International Criminal Court prosecuting non-Americans. That includes Russian leader Vladimir Putin, who was charged last year with involvement in the deportation

of Ukrainian children to Russia. President Biden said at that time he supported that. And of course, critics have accused the U.S. of war crimes and its various conflicts overseas, Greg. How does the ICC play in there? Can it do anything? It would really put the ICC in a position where it couldn't move forward. The U.S. says it would not recognize the court. It would not hand over U.S. troops to be put on trial there. So it would be a very difficult thing. Perhaps there's some scenario where it could happen, but it's certainly not with the U.S. government cooperation.

Now, Ryan, when it comes to the U.S. investigating and perhaps prosecuting war crimes against people from other nations, you mentioned earlier it gets a lot easier if someone's been in the U.S., if there's sort of a nexus with the U.S. But if they've never set foot on American soil, what's the point? I mean, what's achieved by these investigations if they don't ultimately end up in some kind of a trial? Well, I'll say this. The Justice Department does this in cyber attacks. It does it in all sorts of extrajudicial killing cases. There is a long history of the Justice Department bringing charges even where they think that they may not ever get custody of a suspect. there's a symbolic power to it, particularly when it comes to something like war crimes. They are saying Russian forces in Ukraine have committed war crimes against an American citizen. We have the proof that we are willing to go to court and prove it. And so there's a power to putting the whole weight of the U.S. government behind that. So that's a lot of it. And part of it is speaking to people for this story, when it comes to doing the sort of response that we've seen in Ukraine and the kind of lack of response that we've seen publicly on the question of the Israel-Hamas war is, you know, there would be a power to the Justice Department bringing charges or pursuing war crimes cases, not just in a context in which it's politically easy and feasible, but also in

cases in which a U.S. ally is involved, showing that there's justice for war crimes everywhere. It's not just selective cases. All right. We're going to leave it there, and we will be back in your feeds tomorrow. I'm Sarah McCammon. I cover the presidential campaign. I'm Ryan Lucas. I cover the Justice Department.

And I'm Greg Myhre. I cover national security. And thank you for listening to the NPR Politics Podcast.