U.S. to Share Evidence on Russian War Crimes with ICC Despite Obstruction from Pentagon

President Joe Biden ordered the U.S. to begin sharing evidence on Russian war crimes with the International Criminal Court (ICC) in the Hague, a move Congress has urged Biden to take but that the Pentagon has obstructed for months.

Officials told the New York Times of the president’s decision on Wednesday. While the State and Justice Departments supported the move, the Pentagon was concerned about the thawing relationship between the U.S. and the ICC, which was created to investigate war crimes, genocide, and crimes against humanity. The body has prosecuted atrocities that occurred Africa and is investigating atrocities in Ukraine.

The Pentagon was worried about the Court exercising jurisdiction over a non-party and whether that would lead to the investigation and prosecution of American troops in the future. However, experts have countered that the U.S. already has a legal system, both military and civilian, that investigates and holds accountable its own personnel. Former Bush-administration lawyer John Bellinger, who worked for the National Security Council and State Department, explained to the Times that the Court should not investigate the U.S. for this reason. He called Biden’s move to cooperate with the Court “the right thing to do.”

Like Russia, the U.S. is not a signatory to the Rome Statute, which created the ICC. Though President Bill Clinton initially signed the treaty, he never sent it to the Senate for ratification, and Clinton’s successor, President George W. Bush, sent notice that the U.S. intended to withdraw and has no legal obligation under the treaty.

During Bush’s second term and then the Obama administration, cooperation gradually increased, only to collapse in 2017 when the ICC opened an inquiry into the war in Afghanistan and was sanctioned by the U.S. as a result. Both sides have since tried to improve relations, with the sanctions being dropped and the ICC’s chief prosecutor dropping the investigation.

The invasion of Ukraine strengthened the relationship, and, since the war began, Congress has repeatedly signaled it wants the administration to communicate with the court. Last week, a Senate committee passed a spending bill that had a provision stating that the president “shall provide information” to the court regarding Russian war crimes. Congress eased the restrictions against providing aid to the court in December through an expansion of the Dodd Amendment, allowing the U.S. to assist the ICC with “investigations and prosecutions of foreign nationals related to the Situation in Ukraine, including to support victims and witnesses.” The expansion established an additional carve-out to the restrictions set out in the American Service-Members’ Protection Act, which protects U.S. military personnel from ICC probes.

Chairman of the Senate Foreign Relations Committee Robert Menendez (D., N.J.) explained last week in a letter to Secretary of State Antony Blinken that congressional intent to cooperate with the ICC was clear in the 2023 omnibus and “the Department of Defense has expressed unjustified reservations about such cooperation.”

In April, Senators Lindsey Graham (R., S.C.) and Dick Durbin (D., Ill.) wrote to Biden, saying that, just as the Ukrainians need “our weapons, humanitarian assistance, and support for their government, they also need American leadership on accountability for those who have perpetrated atrocities against them.”

Graham and Durbin praised Biden’s move in a statement Wednesday. “After pressing the administration for months, we are pleased that the administration is finally supporting the ICC’s investigation,” the pair said, adding: “The United States will not tolerate these horrific crimes.”

The House Foreign Affairs Committee heard testimony in April from the Ukrainian prosecutor general and survivors of the tens of thousands of war crimes against Ukrainians that have been registered. Killings of civilians, torture chambers, rape, and the abduction and reeducation of Ukrainian children were described in detail. Andriy Kostin, the prosecutor general, explained that evidence is growing exponentially as areas are de-occupied. For example, Ukraine has discovered financial records linking the torture chambers to Russian security agencies.

The indiscriminate shelling of civilian infrastructure and cultural-heritage sites continues on a regular basis. An Odesa cathedral destroyed by Stalin and later rebuilt was again destroyed by Russian fire last week.

According to Kostin, the establishment of a special tribunal for the crime of aggression is an extremely important part of the international community’s web of accountability.

“The crime of aggression, which is a leadership crime and which led to all other war crimes committed, should be prosecuted and punished on an international level,” said Kostin in April. “A proper international tribunal for the crime of aggression will also play a deterrent factor for any future aggressor.”

Attorney General Merrick Garland said in April that the U.S. has a “very long memory.” The DOJ has a War Crimes Accountability Team and is investigating atrocities over which the United States possesses criminal jurisdiction. Congress strengthened the Justice Department’s ability to do so through the Justice for Victims of War Crimes Act. However, the ICC’s scope is broader.

American intelligence agencies are understood to have gathered details about decisions by Russian officials to deliberately strike civilian infrastructure and forcibly deport thousands of Ukrainian children. Some of this information has been shared with Ukrainian prosecutors, but not with the ICC.

The ICC has already issued high-profile charges and arrest warrants against Russian president Vladimir Putin and Maria Lvova-Belova, Russia’s commissioner for children’s rights, in connection with the abduction and reeducation of Ukrainian children. Putin was not perturbed by the ICC’s actions, with the Kremlin explaining that Russia does not recognize the Court’s jurisdiction. Days after, he defiantly visited an art school and a children’s center in occupied Crimea.

Investigating war crimes is not the only legal measure the U.S. is pursuing against Russia. Congress has granted the DOJ the authority to transfer certain assets seized from Russian oligarchs for use in rebuilding Ukraine. A joint effort called Task Force KleptoCapture continues to bring prosecutions and effect seizures against sanctioned enablers of the Kremlin and the Russian military.

Additionally, Ukraine has implored the U.S. to designate the Wagner Group as a foreign terrorist organization, but the U.S. has so far declined to do so. It is unclear what the group’s role will be after a rebellion that the group along with its leader, Yevgeny Prigozhin, instigated against Russia’s defense apparatus. However, efforts to freeze the group’s assets and deprive it of funding are ongoing.