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Home The Latest The Defense Department Is Disregarding the International
Criminal Court of Justice on Ukraine


THE DEFENSE DEPARTMENT IS DISREGARDING THE INTERNATIONAL CRIMINAL COURT OF
JUSTICE ON UKRAINE

The agency scuttled the Biden Administration’s attempt to send information on
war crimes in Ukraine over fears that U.S. citizens could be prosecuted.

by Mike Brand

March 17, 2023

7:00 AM

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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.

------ 

Editor's note: The first sentence of this article was updated after publication
to reflect the warrants issued on March 17.

Back to Search Results

TAGS

Ukraine Anti-War War Crimes International Relations Russia Joe Biden Imperialism
diplomacy Dispatches


MIKE BRAND

Mike Brand is an adjunct professor of human rights and genocide studies at the
University of Connecticut. Follow Mike @miketheidealist.

Read more by Mike Brand

March 17, 2023

7:00 AM

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