Former Ambassador-at-large for War Crimes Pierre Prosper and I have co-authored this op-ed in the Washington Post explaining why Rex Tillerson was right not to have accepted Senator Rubio's invitation to label Vladimir Putin a war criminal for Russian offenses in Syria before Tillerson has taken office, examined the facts, and considered the applicable laws of war. Here are a few excerpts:
As former U.S. government officials who were once responsible for compliance with and enforcement of international humanitarian law and the law of armed conflict, we condemn in the strongest possible terms these battlefield crimes.
Nevertheless, while we can understand why Rubio would ask if the Russian president is a war criminal, there is a multitude of reasons Tillerson is right to exercise caution before jumping to such conclusions before he even enters office.
First, just as we would expect foreign governments, international organizations and human rights groups to investigate and analyze all the relevant facts before declaring any U.S. president or other senior official a war criminal, so too must U.S. officials engage in careful deliberation before attaching such labels to foreign leaders, no matter how much we may detest them or their policies.
Second, the terms “war criminal” and “war crimes” are legal expressions reserved for those individuals who have been found to have committed certain grave breaches of the laws of war, as set forth in various international agreements and court decisions as well as our own War Crimes Act. Advocacy groups are often quick to declare that war crimes have been committed when civilians are killed or protected sites such as hospitals or schools are damaged in armed conflicts, but the terms should not be used or taken lightly, lest we diminish their impact and meaning when discussing those whose acts genuinely warrant the labels. For the same reason, both the George W. Bush and Obama administrations, respectively, conducted lengthy factual and legal investigations before concluding that “genocide” had been committed in Darfur by the government of Sudan and in Iraq and Syria by the Islamic State.
Third, even if we could be certain (and it does appear likely to us) that Russian troops had committed or supported the commission of war crimes in the field, responsibility for war crimes belongs to those individuals who order or carry out such acts with the necessary criminal intent or knowledge. Consistent with due process and fundamental fairness, such determinations must be made on an individualized, case-by-case basis through an impartial and objective analysis of all the factual evidence and the law.