Neither Russia, the United States, nor Ukraine are party to the Rome Statue, the treaty governing the ICC. However, according to "current and former officials briefed on the matter" who were interviewed by the
Times, Austin and others are wary of the Hague tribunal targeting the crimes of countries outside its jurisdiction. Ukraine last year accepted the ICC's jurisdiction so the court could open an investigation of Russia's conduct during the invasion.
"Basically, we want others punished, but not ourselves."
"The Pentagon is flouting the rest of the U.S. government to try to block sending evidence of Russian war crimes in Ukraine to the International Criminal Court,"
tweeted human rights expert Kenneth Roth. "It fears a precedent: prosecuting non-parties on the territory of governments that accept the ICC."
Author and war correspondent Megan K. Stack
wrote on Twitter that "basically, we want others punished, but not ourselves."
U.S. Sen. Lindsey Graham (R-S.C.)—whose resolution urging accountability for Russian war criminals and encouraging ICC member states to investigate documented and alleged atrocities
unanimously passed the Senate last year—told the Times' Charlie Savage that the Pentagon "opposed the legislative change—it passed overwhelmingly—and they are now trying to undermine the letter and spirit of the law."
"It seems to me that [Department of Defense] is the problem child here, and the sooner we can get the information into the hands of the ICC the better off the world will be."
Documented and alleged war crimes committed by Russian forces and contractors in Ukraine include—but are not limited to—
massacres and other murders of civilians and soldiers; indiscriminate attacks on densely populated areas; attacking critical civilian infrastructure; bombing hospitals and shelters; torture; rape and sexual enslavement of women and children; and stealing children.
American troops and contractors have perpetrated each of those war crimes in U.S.
attacks, invasions, occupations, and peacekeeping operations in the years since the ICC was established in 1998.
President Joe Biden has
called Russian President Vladimir Putin a "war criminal" and demanded he be tried for Russia's atrocities in Ukraine. The Biden administration and Congress even explored ways of helping the ICC prosecute Russian war crimes without the U.S. being subjected to the tribunal's authority.
As Savage noted:
Lawmakers enacted two laws aimed at increasing the chances that Russians would be held accountable for war crimes in Ukraine.
One was
a stand-alone bill expanding the jurisdiction of American prosecutors to charge foreigners for war crimes committed abroad. The other, a provision about the International Criminal Court embedded in the large appropriations bill Congress passed in late December, received little attention at the time.
But that provision was significant. While the U.S. government remains prohibited from providing funding and certain other aid to the court, Congress created an exception that allows it to assist with "investigations and prosecutions of foreign nationals related to the situation in Ukraine, including to support victims and witnesses."
"The Ukrainian people deserve accountability," Rosie Berman, a project manager at the advocacy group Center for Civilians in Conflict,
asserted via Twitter. "By blocking the sharing of evidence with the ICC, the administration, contrary to its stated position, is undermining it."
Under a
law signed by former President George W. Bush, not only is the U.S. Congress barred from funding the ICC or from providing other assistance to the court, but the U.S. may use "all means necessary and appropriate"—including invading NATO ally the Netherlands—to secure the release of any U.S. or allied personnel held by or on behalf of the tribunal.
In March 2020 the ICC, then led by Prosecutor Fatou Bensouda,
determined that an investigation into documented and alleged war crimes committed by all sides in the war in Afghanistan, and at secret CIA prisons in Eastern Europe, could proceed.
In retaliation, the Trump administration
slapped sanctions on Bensouda and other ICC lawyers and investigators, as well as on journalists who provide evidence of U.S. war crimes. A federal judge later blocked former President Donald Trump's executive order authorizing sanctions.
"If we oppose investigations into countries, like our own, that haven't joined the ICC, how can we support an investigation into Russia, another country that hasn't joined the court?"
In September 2021, human rights defenders were outraged when the ICC, under new Prosecutor Karim Khan, said the investigation would focus only on potential war crimes perpetrated by the Taliban and Islamic State in Afghanistan, while excluding U.S. and allied atrocities.
Last April, progressive U.S.
Rep. Ilhan Omar (D-Minn.)
introduced a resolution calling on the United States to join the ICC, as well as bills that would have repealed the so-called Hague Invasion Act and codified the Office of Global Criminal Justice Act so that the State Department can more effectively respond to crimes against humanity.
"If we oppose investigations into countries, like our own, that haven't joined the ICC, how can we support an investigation into Russia, another country that hasn't joined the court?" Omar asked at the time.
