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Protest against Russian war crimes in Ukraine

Women wearing floral crowns and holding placards covered in fake blood take part in an April 10, 2022 London demonstration against Russian atrocities targeting Ukrainian civilians. (Photo: Wiktor Szymanowicz/Future Publishing via Getty Images)

US Limits on ICC Complicate Biden's Aim to Aid Putin War Crimes Probe

"If Ukraine can submit itself to the rule of law as it fights for its very survival," said one ICC official, "the U.S. can as well."

Brett Wilkins

As the Biden administration debates how much it can—and should—support the International Criminal Court's investigation into Russian President Vladimir Putin's alleged war crimes in Ukraine, critics of U.S. foreign policy on Monday took aim at what they called American double standards regarding the Hague tribunal.

"The U.S. cannot support the ICC only when it prosecutes people we do not like."

"So, the U.S. wants to help the International Criminal Court prosecute Russian war crimes while barring any possibility the ICC could probe U.S. (or Israeli) war crimes," observed International Commission of Jurists Commissioner Reed Brody.

Stanford University political science professor Ken Schultz noted "the challenge of upholding a 'rules-based order' when you worry that the rules might be applied to you (and you know who)."

Jim Cason, who works on strategic advocacy for the Friends Committee on National Legislation, a Quakers Organization, tweeted that "the U.S. cannot support the ICC only when it prosecutes people we do not like."

The United States has long argued that the ICC has no jurisdiction over citizens of countries that are not bound by the Rome Statute, the treaty that created the court. These countries include the United States, Russia, and Ukraine, as well as China, India, and key U.S. allies accused of war crimes including Israel and Saudi Arabia.

Then-President Bill Clinton signed the Rome Statute during the final weeks of his second term. However, he did not submit the treaty to the Senate for consideration and advised the incoming George W. Bush administration against doing so on the grounds that U.S. personnel prosecuted by the ICC would be denied procedural protections under the Bill of Rights and Constitution.

The Bush administration subsequently said the U.S. would not join the ICC. Following up on a 1999 law prohibiting Congress from funding the court, Bush in 2002 signed sweeping legislation, the American Service Members' Protection Act, that bars the U.S. from providing other assistance including intelligence sharing or personnel training to the court. Known informally as the Hague Invasion Act, the law authorizes the president to use "all means necessary and appropriate" to secure the release of any U.S. or allied personnel held by or on behalf of the ICC.

The Trump administration was so incensed by the prospect of an ICC investigation of alleged American war crimes in Afghanistan that it imposed sanctions against court officials including then-Chief Prosecutor Fatou Bensouda. The U.S. has also strenuously objected to an ongoing ICC investigation of alleged Israeli war crimes in Palestine.

When asked last week at a press briefing about potential venues in which Putin might be tried for war crimes, U.S. National Security Adviser Jake Sullivan said that "we have to consult with our allies and partners on what makes most sense as a mechanism moving forward."

"Obviously, the ICC is one venue where war crimes have been tried in the past," he added, "but there have been other examples in other conflicts of other mechanisms being set up."

"The U.S. should join the majority of the world, ratify the Rome Statute, and respect the authority and jurisdiction of the International Criminal Court."

Options, however, appear limited. As a permanent United Nations Security Council member, Russia can veto any U.N. effort to establish the type of special international court used to try war crimes suspects from countries like Rwanda and the former Yugoslavia. Prosecution by a third country recognizing the judicial concept of universal jurisdiction is a possibility that is reportedly being explored.

Leila Sadat, the special adviser on crimes against humanity for the ICC prosecutor, said that U.S. fears of Americans being targeted by the court are overblown.

"This fixation about the hypothetical possibility that U.S. persons would somehow commit serious war crimes, crimes against humanity, or genocide and be charged by the court is simply misplaced," she told Newsweek last week. "It is the policy of the U.S. government to prosecute its own for war crimes should they unhappily occur, and very little actual prospect of ICC prosecution of U.S. persons."

Indeed, the court's new chief prosecutor, Britain's Karim Khan, infuriated human rights defenders last year when he limited the scope of the Afghanistan war crimes probe to acts committed by the Taliban and Islamic State.

Some advocates have taken the Russian invasion as an opportunity to renew calls for the U.S. to join the ICC, as unlikely as that prospect may be.

"The U.S. should join the majority of the world, ratify the Rome Statute, and respect the authority and jurisdiction of the International Criminal Court," asserted Democracy Now!'s Amy Goodman and Denis Moynihan last week.

The ICC's Sadat insisted that "if Ukraine can submit itself to the rule of law as it fights for its very survival, the U.S. can as well."

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