(Ця стаття також доступна українською мовою тут.)
When civilians are being killed or brutalized in large numbers, soaring calls for the perpetrators to be held to account can feel idle if no court has a clear mandate and jurisdiction to prosecute those crimes. In the case of Russia’s increasingly vicious invasion of Ukraine, though, the situation is straightforward. Years ago Ukraine gave the International Criminal Court (ICC) jurisdiction over crimes against humanity and war crimes committed on its territory since November 2013. On that basis, and spurred by Russia’s expanded invasion and 39 ICC member states formally requesting he take up the situation, the ICC prosecutor last week opened an investigation covering all parties to Ukraine’s conflict, including any war crimes that Russian forces are currently committing. Human rights organizations in Ukraine and elsewhere supported the prosecutor’s action.
U.S. officials, however, will see the situation less straightforwardly. Under the U.S. government’s case-by-case approach toward international tribunals, U.S. officials will ask themselves whether the ICC’s Ukraine investigation fits within the complex set of U.S. policy preferences about how those tribunals should work. Based on my several years of working on these issues as a civil servant, the answer with respect to the ICC’s Ukraine investigation would ordinarily be a clear “no” – but it would be a serious mistake for the U.S. government to land there this time.
The United States and dozens of other countries alarmed by Russia’s egregious acts have been right to deploy a wide range of tools to make clear there will be consequences for those who are responsible. But the default U.S. policy would be to oppose the ICC’s investigation in Ukraine, or at least carefully avoid expressing support for it, because the likely defendants include citizens of a state that has not accepted the ICC’s jurisdiction: Russia. This case should prompt the United States to finally set aside its idiosyncratic view about the ICC’s jurisdiction – a view that otherwise will prevent it from embracing the court’s work in Ukraine.
When states negotiated the ICC’s founding treaty in the 1990s, the U.S. government – wishing to ensure its personnel could stay outside the court’s jurisdiction – argued that the court should not be able to investigate or charge a suspected perpetrator for crimes committed in an ICC member state, unless their home government consented or the Security Council referred the situation to the Court. The United States badly lost that argument, but administrations of both parties have continued to talk around this stubborn fact, either objecting to this part of the court’s jurisdiction or simply claiming it does not exist.
Whether the U.S. government’s objection is a legal argument or actually just a policy one, it enjoys no meaningful support among ICC member states. U.S. allies are perplexed to discover that the United States still takes this position; they rightly ignored the Trump administration’s demands to either strip the court of its territorial jurisdiction or face its “dissolution,” and none have indicated they see this as a controversy in the Ukraine situation. The Biden administration may see the objection as the kind of legal defense the executive branch long ago said it would raise in any proceedings against U.S. personnel before international tribunals, but the ICC has faced this issue many times and consistently dismissed it. The U.S. government has not applied its own objection consistently either. In 2003, for example, it embraced or at least did not oppose the indictment of Liberian president Charles Taylor by a different international tribunal, one that at the time had neither the consent of Taylor’s home state nor a decision by the Security Council clearly substituting for that consent.
Yet to show it takes its own objection seriously, the U.S. government has generally withheld support from ICC investigations that touch on abuses by citizens of other non-member states. If it stays in place, the objection will keep U.S. hands tied if the ICC’s investigation into atrocities against Myanmar’s Rohingya Muslims leads to charges against that country’s officials. The objection has already kept the U.S. government silent on the court’s probe of the 2008 war between Russia and Georgia, another episode in which brutality by Russia and its local allies met with little consequence. And in the context of Ukraine, the objection means, farcically, that the United States would have to seek Russia’s assent to the investigation of Kremlin officials before U.S. officials could assist the court’s work there.
Whether quietly or aloud, the U.S. government should accept that this oppositional stance cannot be reconciled with its interests in supporting justice, and should set the position aside. The administration will be tempted to avoid taking a position on the Ukraine investigation and simply muddle through using general language about accountability unless a specific request for assistance forces the matter; but that could leave the United States in a passive and mumbling posture when its allies are leading the way with clear support. Alternatively, the administration might employ some behind-the-scenes parsing to explain to itself why the Ukraine situation falls outside the scope of its objection. But there is no credible way to do this; if there were, that approach would still leave the United States unable to assist in Myanmar and other ICC investigations. (The White House press secretary appeared to give mixed signals last week on the possible U.S. provision of information to the ICC.)
The United States would be wise, of course, not to make itself a starring player in any of the investigative efforts that Putin’s war has kicked into gear. For Russia’s top adversary to publicly play up the prospect of Putin ending his days in The Hague would be inflammatory at a time of great peril. The credibility of an independent body can suffer if it seems too close to the interests of one side in a political conflict. And U.S. support for the ICC in particular will always meet charges of hypocrisy, given its long-standing refusal to ratify the Rome Statute and join the court itself – a step for which 67 U.S. senators will not soon agree.
But a measure of accountability for past and ongoing Russian abuses is needed to protect the rights of Ukrainians, uphold basic values and the laws of war, and try to discourage similar acts in the future. U.S. support has been decisive for other efforts to seek accountability for atrocities, and the U.S. government can usefully bring its voice and influence to bear here as the ICC’s important investigation gets under way.
In addition to expressing its support for the investigation, the U.S. government more tangibly could:
- Help protect the ICC’s witnesses. As the court identifies key witnesses, the United States could resettle and help protect those that are in danger. Using an authority that Congress first provided in 2019, it could also help fund the court’s witness protection work and its assistance to victims.
- Provide evidence of crimes or other relevant information. The U.S. government may be able to provide (or make publicly available) information that would help the court link individuals and units to specific abuses. It could also support the documentation efforts of others who intend to inform the ICC of their findings, such as the OSCE fact-finding mechanism that the United States and 44 other governments have proposed.
- Urge key governments to cooperate with the ICC. Russia, of course, will not cooperate; Ukraine most likely will, though this could change if, for example, its forces become less restrained in the treatment of prisoners as the war continues. Neighboring countries into which refugees who have witnessed war crimes have fled may also come under Russian pressure not to cooperate.
- Issue rewards for information about the ICC’s fugitive indictees. If the ICC investigation leads to arrest warrants in the coming months (or years), some defendants may go into hiding, and U.S. assistance could help find and apprehend them.
The domestic political situation in the United States seems favorable to the kind of policy shift that would make such constructive action possible. A sizeable bipartisan group of senior U.S. senators has introduced a resolution that invokes the ICC investigation into Ukraine, supports “any investigation into war crimes, crimes against humanity, and systematic human rights abuses levied by President Vladimir Putin” and Russian forces in Ukraine, and specifically encourages the ICC’s members to petition it to undertake such an investigation, as they have done. In announcing the resolution and describing the ICC’s investigation, Sen. Lindsey Graham (R-SC) said, “This is a proper exercise of jurisdiction. This is what the court was created for.” A bipartisan group of House members has also called for the ICC to prosecute Putin if Russia harms Ukrainian President Zelenskyy.
The United States played a pioneering role in creating the principles of international justice, though its leadership on that front since Nuremberg has been inconsistent, to say the least. President Biden’s national security team must do more to put the United States in a position to promote justice going forward, in Ukraine and elsewhere. If the United States objects to the ICC’s actions in a situation, it should make its arguments on the merits, not based on a sweeping jurisdictional view that contradicts the ICC’s treaty, lacks support from even close U.S. allies, and ties the U.S. government’s own hands. If an international tribunal is the best option for justice for the victims of atrocities, U.S. support should not depend on the consent of the perpetrators.