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Melissa Harris-Perry: You're listening to The Takeaway. I'm Melissa Harris-Perry. President Joe Biden has strongly condemned Russian President Vladimir Putin's violent invasion of Ukraine.

President Joe Biden: "Putin is inflicting appalling, appalling devastation and harm on Ukraine, bombing apartment buildings, maternity wards, hospitals."

Melissa Harris-Perry: Initially the president shied away from describing Putin as a war criminal, but after weeks of avoiding the term, President Biden used it at an afternoon event last Wednesday. Initially disregarding the reporter's question and then circling back, he said--

President Joe Biden: "No. I think he is a war criminal."

Melissa Harris-Perry: The next day, Secretary of State Anthony Blinken echoed the President's assertion.

Anthony Blinken: "Yesterday, President Biden said that in his opinion war crimes have been committed in Ukraine. Personally, I agree. Intentionally targeting civilians is a war crime. After all the destruction of the past three weeks, I find it difficult to conclude that the Russians are doing otherwise."

Melissa Harris-Perry: Last week Russian forces bombed a theater in the Ukrainian city of Mariupol holding hundreds of civilians. The word "children" was written in large Russian letters on two sides of the theater clearly visible from the air. More than 100 people emerged alive from the theater after the attack, but hundreds have not yet been accounted for. According to the United Nations Office of the High Commissioner for Human Rights, more than 900 civilians have been killed in Ukraine since the start of the Russian invasion.

While Biden's branding of Putin as a war criminal does not constitute any kind of official charge, last month International Criminal Court Prosecutor Karim Khan announced that he was opening an investigation into alleged war crimes and crimes against humanity being committed in Ukraine.

Leila Sadat is professor of International Criminal Law at Washington University in St. Louis and director of the Crimes Against Humanity Initiative. Welcome to The Takeaway, Professor Sadat.

Professor Sadat: Thank you. It's great to be with you today, Melissa.

Melissa Harris-Perry: That moment when President Biden circles back and he uses the language of war criminal, do you have a sense of why he maybe made that choice in that moment?

Professor Sadat: Well, what we are seeing happening on the ground and in the skies over Ukraine is prima facie evidence of violations of the laws and customs of war. We appear to be seeing attacks on hospitals, the theater attack that you just mentioned in which civilians are being killed. This suggests that the war is being carried out in a way that involves violations of the laws of war. Many of those violations if proven and if conducted intentionally would be criminal. President Biden is jumping to a conclusion, but it's not an unrealistic conclusion.

Melissa Harris-Perry: What does it mean to say that someone could be found guilty of war crimes? What kind of penalty does that even carry and who decides it?

Professor Sadat: Well, right now because Ukraine has declared that it wishes the International Criminal Court to intervene, one possible avenue of investigation and prosecution is the International Criminal Court itself. The prosecutor received a referral from 39 states initially, and then another two states joined, asking him to investigate any alleged violations of ICC crimes, which is war crimes, crimes against humanity, and genocide, starting from 2013 forwards.

The ICC currently has the power of investigation with respect to any alleged crimes in the ongoing conflict or prior crimes that may have been committed. The ICC prosecutor has in fact dispatched to Ukraine, has met with President Zelenskyy, has offered to meet with Russian authorities, and has asked all sides to the conflict not to commit these crimes.

Melissa Harris-Perry: Once the US president has called another leader a war criminal, does that make diplomacy more difficult?

Professor Sadat: Yes and no, Melissa. I think the best example we can think of is what happened in the 1990s with respect to the Bosnian War, particularly in the context of the incursion into Kosovo and the ethnic cleansing that took place. We had former president, now deceased President Slobodan Milošević, who was labeled a war criminal, as well as Karadžić and Mladić, who were the heads and the top general of the Republic of Srpska.

It is true that some people were excluded from the Dayton negotiations because they had been labeled war criminals. I think it was actually a positive development that the idea of war crimes and criminality was brought early into the Bosnian and subsequently the other conflicts because when a head of state or an individual decides to commit crimes on the scale that we saw in that war, and that we fear happening in this war, it's not really going to be easy to negotiate and get them to stop doing this.

Melissa Harris-Perry: You made the point earlier that the president is in certain ways coming to a conclusion before an investigation. That he is basing it certainly on evidence on what we're seeing, but I'm wondering if President Biden's decision to apply the term before there is an investigation, whether or not that in any way hampers or complicates any potential future investigation.

Professor Sadat: It doesn't really, Melissa. I've been a special adviser to the International Criminal Court since 2012, and I've been working in this field a long time prior to that. The justice mandate of an international court like the ICC, or the Yugoslavia tribunal before the ICC, is independent of whatever negotiations that politicians are undertaking. Once you have a war crimes tribunal or an international criminal court with jurisdiction, the prosecutor, the personnel of the court, will undertake to fulfill their mandate under their statutory authority to do so. In a sense, we have to ignore the noise that is happening in the diplomatic community.

I hope honestly that the diplomats are able to bring about some sort of ceasefire or a stop to the bloodshed, but the judicial mandate of the ICC will just continue, as will any other mandates of investigative bodies at the national level or ad hoc tribunals that have been discussed. We operate in a sense at the ICC, or as Yugoslavia did before us independently, of the conversations that are happening in the diplomatic space. That doesn't mean we don't hear them or we're not aware of them, but it does mean that they're on different tracks.

Melissa Harris-Perry: Professor Sadat, when you talk about intentionally targeting civilian populations, it is worth noting that only one nation has ever detonated nuclear bombs in war and done so against civilian populations, and that's the United States at the end of World War II in Japan. Were the decision-makers in that decision to use those weapons against those populations ever brought to International Criminal Court or held accountable as war criminals?

Professor Sadat: They were not, Melissa. One of the main concerns with the justice process that happened following World War II at Nuremberg and at Tokyo was it was often labeled victor's justice because the Allied powers sat in judgment of the Axis powers. At Nuremberg, you had a tribunal with judges from France, the United Kingdom, the Soviet Union, and the United States who sat and judged the crimes of German leaders.

In Tokyo, it was a larger tribunal with 11 judges from the various Allied powers, but at the same time, it was judging only Japanese, even though that was a revolution at the time. I don't want to denigrate the process that happened because there always has to be a first time. Now looking back at that, we understand that it is better to have a standing court with a pre-existing prosecutor, judges from all over the world, and to have, in a sense, a process that was stood up prior to the allegations of criminality so that it can intervene in real-time in the situation without the post hoc victor's justice labeled.

It doesn't mean we can never have an ad hoc tribunal again, like the Yugoslavia tribunal, it just means that it's better to have a tribunal that's already existing where you don't have this perception and sometimes reality of unfairness or illegitimacy.

Melissa Harris-Perry: How much actual accountability for world leaders who have committed war crimes has there been in recent history? Sort of the post-Nuremberg moment?

Professor Sadat: Well, post-Nuremberg, we didn't have a whole lot because the Cold War intervened, and efforts by the United Nations to create an international criminal tribunal stalled, and to develop a draft code of international crimes.

It wasn't until, ironically, the fall of the Berlin Wall, and in a sense the outbreak of conflict in the former Yugoslavia, which can be traced to the collapse of the Soviet Union, that we got another war giving rise to an accelerated push to create the International Criminal Court, to create international criminal tribunals, and to thoroughly define and implement, in a sense, international legislation that defined the crimes that are now being alleged. Crimes against humanity, war crimes, genocide, and the crime of waging an aggressive war.

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Melissa Harris-Perry: Leila Sadat is professor of International Criminal Law at the Washington University in St. Louis and director of the Crimes Against Humanity Initiative. Thank you so much for joining us.

Professor Sadat: It was my pleasure, Melissa.

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