President Joe Biden ordered the U.S. to begin sharing evidence on Russian war crimes with the International Criminal Court (ICC), 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 in the Balkans and Africa.
The Pentagon was worried that the growing cooperation could 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, made this very point to the Times and called Biden’s move “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, George W. Bush, sent notice that the U.S. intended to withdraw.
During Bush’s second term and then the Obama administration, cooperation increased, only to collapse in 2017 when the ICC opened an inquiry into the Afghanistan war 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 probe.
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 — restrictions that were enacted shortly after the Rome Statute was signed.
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.”
In a statement Wednesday, Graham and Durbin praised the move. “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 was once again destroyed by Russian fire last week.
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. However, the ICC’s scope is much 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, however, was not perturbed by the ICC’s actions. 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 also proscribe 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 its leader, Yevgeny Prigozhin, instigated against Putin. However, efforts to freeze the group’s assets and deprive it of funding are ongoing.