America’s ICC Animus Gets Tested by Putin’s Alleged War Crimes

For more than 20 years, Democratic and Republican administrations have agreed on one thing about the International Criminal Court: The Hague-based tribunal has no business investigating or prosecuting American forces for serious crimes, whether in Afghanistan, Iraq, or any future conflict, because the United States never ratified the treaty establishing it.

But in recent weeks, officials from U.S. President Joe Biden’s administration have been openly encouraging investigations, including by the ICC, into reports of atrocities by Russian forces in Ukraine—even though Russia, like the United States, is also not a signatory to the 1998 Rome Statute, the treaty that established the global criminal court.

The Russian invasion of Ukraine has confronted American policymakers with a thorny conundrum: How can they lend their support to an international prosecutor with a mandate and willingness to investigate potential Russian war crimes without undercutting their own effort to shield Americans from past or future prosecutions?

The Biden administration began conducting an internal review of its policy on the International Criminal Court after its chief prosecutor, Karim Khan, announced just days after the start of the Russian invasion that he was opening an investigation. That review, which is ongoing and builds on an earlier ICC policy review, is seeking to determine whether to translate America’s rhetorical support for an ICC investigation in Ukraine into broader material support. It also aims to address the inherent contradiction between its approach to Afghanistan and Ukraine.

Ukraine is not a party to the ICC, but Kyiv in 2014 invited the tribunal to launch an open-ended investigation into an earlier phase of Russia’s conflict with Ukraine. A group of 39 ICC member states, led by Lithuania, have also formally requested an investigation by the prosecutor.

The Biden administration welcomed “Khan’s announcement to open an investigation into this situation, in particular his focus on preserving evidence of alleged atrocity crimes,” a State Department spokesperson said. But the official, who spoke on condition of anonymity, also said the United States appreciated the prosecutor’s commitment to defer to courts’ long-standing practice of letting national courts, in this case Ukraine, take the first crack at prosecuting alleged perpetrators of grave crimes.

Since beginning its invasion nearly three weeks ago, Russia has targeted Ukrainian schools, hospitals, and residential areas; bombed humanitarian corridors; and used prohibited munitions like cluster bombs. Thousands of Ukrainian civilians have already been killed by Russian strikes, with more than 2,000 dead in just the southern city of Mariupol.

Human rights advocates and experts say that they don’t expect the Biden administration to formally reverse its position and publicly recognize the court’s legal jurisdiction over nonstate perpetrators of serious crimes, whether Russian or American. But they remain hopeful that Washington can find ways to assist in the investigation, whether through the provision of intelligence, witness protection, or other means.

“While … we’re not a member of the Criminal Court, we’ve always been supportive of the Criminal Court taking actions when actions are required,” the U.S. ambassador to the United Nations, Linda Thomas-Greenfield, recently told the BBC.

Outside observers say that Washington has been trying to strike a delicate balance between promoting war crimes investigations in Ukraine while limiting the exposure of American service members in the future. But the policy risks exposing the United States to charges of double standards.

“I don’t think the U.S. is looking to change its policy on the ICC completely, but look, I’m not going to criticize that at this moment,” said Sarah Yager, Washington director for Human Rights Watch. “Biden is doing the right thing by supporting this investigation into Ukraine.”

The U.S. relationship with the court has always been tricky, veering from outright hostility to active support. President Bill Clinton signed the Rome Statute during his final days in office, but he never submitted it to Congress for ratification. President George W. Bush moved swiftly to withdraw Washington’s support from the treaty and mounted a diplomatic campaign to undermine the court by attempting to strong-arm countries into granting immunity for Americans from prosecution. Bush later partially reversed course, abstaining on a U.N. Security Council resolution inviting the court to prosecute Sudanese leaders for war crimes, crimes against humanity, and genocide.

Under President Barack Obama, the United States dramatically stepped up cooperation by drafting a Security Council resolution authorizing an ICC investigation into crimes in Libya. The Obama administration also helped deliver Bosco Ntaganda, a former rebel leader and Congolese army general, to The Hague. Congress also passed a law creating a multimillion-dollar rewards program for information leading to the arrest of individuals indicted by the ICC.

During the Trump administration, then-Secretary of State Mike Pompeo mounted a vigorous assault on what he characterized as a “kangaroo court” that “continues to target Americans,” announcing the imposition of sanctions on the then-chief prosecutor, Fatou Bensouda, and her top deputy, Phakiso Mochochoko. The move followed the announcement by the prosecutor of plans to launch investigations into possible war crimes by American service members in Afghanistan, as well as Israeli and Palestinian combatants.

The Biden administration has been gradually stepping up support for the ICC, beginning with a decision last April to lift those sanctions on Bensouda and Mochochoko. In December, the United States sent an observer to the ICC’s annual meeting of signatories of the Rome Statute. And in U.N. Security Council debates, U.S. diplomats have underscored Washington’s support for the court’s prosecutions in Libya and Darfur, where the 15-nation council authorized investigations.

But Washington has been reluctant to support ICC investigations into atrocities committed by nationals from countries that never joined the ICC. For instance, the United States has largely remained silent about the ICC investigation into Georgia, where Russian forces backed separatist groups in the breakaway regions of Abkhazia and South Ossetia, according to advocates of the court.

More recently, the court received a boost from Sen. Lindsey Graham, who co-sponsored a Senate resolution supporting an ICC investigation into serious crimes in Ukraine. “This is a proper exercise of jurisdiction, this is what the court was created for, because there is no venue absent this court, in my view, to hold Putin and those who follow his orders accountable,” Graham said.

But U.S. support has come with a critical caveat.

“The United States is not a State Party to the Rome Statute and we maintain our concerns over the ICC’s assertion of jurisdiction in certain circumstances,” the State Department spokesperson added in response to questions on Monday. “But we recognize the meaningful role the ICC can play in promoting accountability for atrocities, and have supported, and will continue to support, the ICC’s efforts in certain cases.”

Experts on criminal justice matters say that the Ukraine conflict has provided an opportunity to change that position. “Whether quietly or aloud, the U.S. government should accept that this oppositional stance cannot be reconciled with its interests in supporting justice,” wrote Adam Keith, a former U.S. official in the Office of Global Criminal Justice who currently serves as the director for accountability at Human Rights First, in Just Security. “This case should prompt the United States to finally set aside its idiosyncratic view about the ICC’s jurisdiction—a view that otherwise will prevent it from embracing the court’s work in Ukraine.”

Even before the current crisis, the State Department has helped Ukraine’s prosecutors develop the capacity to prosecute perpetrators of war crimes and crimes against humanity. Ukraine’s prosecutor general, Iryna Venediktova, has vowed to pursue prosecution of such crimes. Since Russia invaded Ukraine, a proliferation of entities have sprung up to hold Moscow to account. The U.N. Human Rights Council has established a Commission of Inquiry to investigate rights abuses, and the Organization for Security and Co-operation in Europe has set up its own fact-finding investigation.

Former British Prime Minister Gordon Brown and a group of scholars have proposed establishing a special tribunal, modeled on the Nuremberg trials of Nazi officials at the end of World War II, to prosecute Russians for the crime of aggression in Ukraine. In New York, there has been some discussion of setting up a hybrid tribunal, composed of Ukrainian and international jurists, to prosecute crimes of aggression. Germany, Poland, and other countries have opened up their own investigations, raising the possibility of national prosecutions beyond Ukraine’s border.

But whether this flurry of investigations will result in prosecution of Russian nationals—or of Russian President Vladimir Putin himself—remains far from certain.

“I would say I’m guardedly optimistic; it’s going to be tough admittedly to get Putin or other senior ministers in front of an international court,” said Clint Williamson, a former U.S. ambassador-at-large for war crimes who is leading a U.S.-funded program aimed at building Ukraine’s capacity to prosecute serious crimes.

But even charges in other courts or Interpol red notices can make life difficult for Russian officials, he said.

“Even if you don’t have a realistic prospect of putting them in the dock at the ICC or another international tribunal, you can still make them pariahs if they are indicted.”