On March 17, the International Criminal Court issued arrest warrants for Russian President Vladimir Putin and the Russian Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova, for the war crime of unlawful deportation of children from Ukraine to Russia. Americans who support justice and accountability should be frustrated to know that, in early March, The New York Times reported that the Department of Defense is blocking the sharing of intelligence with the ICC. This could hinder the court’s ability to prosecute Russians for war crimes.
Despite the Biden Administration’s support for coordinating with the ICC, the Defense Department reportedly does not want to give information to the court because “they fear setting a precedent that might help pave the way for [the court] to prosecute Americans.”
It is important to understand what the ICC can and can not prosecute in order to understand how absurd this position is.
The ICC was created to serve as a permanent court—rather than an ad hoc proceeding, as the Criminal Tribunal for Rwanda was—to prosecute some of the most serious crimes under international law. Under the 1998 Rome Statute, which created the ICC, the court only has jurisdiction over the crimes of genocide, crimes against humanity, war crimes, and, along more narrow lines, the crime of aggression.
The Defense Department’s reluctance to share evidence with the ICC is not the first time the United States has been unfriendly toward the ICC.
The ICC is known as the “court of last resort,” as it acts as a complement to national justice systems and can only prosecute cases when a country is unwilling or unable to. The ICC also has limited jurisdiction over where it can investigate and which individuals it can prosecute.
Countries that signed the Rome Statute can request an investigation by the ICC. A government that is not a party to the Rome Statute may grant the ICC jurisdiction to prosecute crimes committed in their country or by one of their citizens. The United Nations Security Council can also refer a case to the ICC, as was done with Darfur, Sudan, in 2005.
Finally, the Office of the Prosecutor, an independent officer of the court, may request permission from the pre-trial chamber judges to open an investigation into a case. The jurisdiction, however, is still limited to crimes that may have been committed in a state party’s territory, by nationals of a state party, or in a state that has accepted the ICC’s jurisdiction.
Despite the United States’s history of promoting international justice, and its pivotal role in the creation of the Nuremberg Trials and the Tokyo War Crimes Trial after World War II, the country is not a party to the Rome Statute. As such, the ICC would have limited jurisdiction to prosecute American citizens. Providing evidence of crimes committed in Ukraine to the ICC would not open a backdoor for the court to prosecute Americans.
Further, since the ICC only prosecutes genocide, crimes against humanity, war crimes, and the crime of aggression, and can only do so if a state is unwilling or unable to pursue justice, the only reason the United States should fear prosecution by the ICC is if the U.S. government was planning to commit mass atrocities or the crime of aggression and failed to hold the guilty parties accountable.
The Defense Department’s reluctance to share evidence with the ICC is not the first time the United States has been unfriendly toward the ICC. Over the years, the United States has had a checkered relationship with the court, at times supporting it and at others taking steps to undermine its authority.
In 2002, President George W. Bush took the unprecedented and somewhat hollow step of un-signing the Rome Statute, previously signed by President Bill Clinton. In a letter to then-Secretary-General of the United Nations Kofi Annan, former National Security Advisor John Bolton expressed that the United States had no intention of ratifying the treaty, and as such, it should not be bound by any “legal obligations arising from its signature.”
The Bush Administration did not stop there, making further efforts to undermine the court’s authority. Bush proceeded to essentially bully states into signing bilateral agreements with the United States, promising that they would not cooperate with the ICC in handing over any American citizen to the court in exchange for financial assistance. There have been at least 100 countries that have signed these Article 98 immunity agreements.
The U.S. Congress also passed a law—the American Service-members' Protection Act of 2002—that included a provision granting the President the authority to use “all means necessary and appropriate” to free Americans if they are arrested and awaiting trial at the ICC.
The tension between the ICC and the United States escalated when, in 2020, the court opened an investigation into crimes committed in Afghanistan by Taliban, Afghan, and U.S. forces. In response, the Trump Administration sanctioned then-ICC Prosecutor Fatou Bensouda and the ICC’s head of jurisdiction Phakiso Mochochoko. Both were added to the Specially Designated Nationals List, which often targets “terrorists and narcotics traffickers.”
The Biden Administration lifted those sanctions and, in 2021, ICC Prosecutor Karim Khan announced that he was deprioritizing the investigation into alleged crimes committed by U.S. forces in Afghanistan. Advocacy organizations like the ACLU and Human Rights Watch have denounced this decision, arguing that doing so harms the ICC’s credibility and victims’ pursuit of justice and accountability.
While the United States is, unfortunately, still not ready to join the ICC, bipartisan support for cooperating with any ICC investigations into crimes committed in Ukraine has been growing. Last year, Congress passed a provision in the Consolidated Appropriations Act of 2023 that provided an exception to the American Service-members' Protection Act for Ukraine, which could pave the way for cooperation with the ICC.
In the short term, the Biden Administration should ensure the Defense and State Departments fully cooperate with the court’s investigations and provide any and all evidence of crimes committed by Russian or Ukrainian forces to the ICC Prosecutor.
In the long term, Americans should press Congress to ratify the Rome Statute. The United States should not be above international law, and Americans should not support protecting individuals who have committed genocide, war crimes, or crimes against humanity.
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Editor's note: The first sentence of this article was updated after publication to reflect the warrants issued on March 17.