On Monday, President Joe Biden called for a “war crimes trial” in light of horrific images out of Bucha in Ukraine. As a result, there has been a further surge of media interest in the question of accountability.
The Biden administration’s position on the International Criminal Court (ICC), which is investigating war crimes in Ukraine, has created some confusion in the coverage though. An administration official on Tuesday, for example, while saying that “accountability is going to be critically important given the atrocities and the horrific crimes that we are seeing unfold in Ukraine right now,” nevertheless invoked vague references to ”jurisdictional and membership issues” with the ICC and said it is a “challenging option.” Journalists have generally not pushed for specifics. The result is that the public is left with mistaken impressions about whether the United States is doing what is needed and legally possible to support international war crimes investigations.
Armed with better information, journalists would be able to provide more accurate coverage of this important issue. Below is a thought experiment of what an effective interview would look like.
But first, some key facts for journalists who want to report on accountability for war crimes in Ukraine:
- The ICC is a permanent international criminal court that has been conducting investigations of war crimes (along with crimes against humanity and genocide) for almost two decades. Its experience includes cases against Russian nationals for war crimes allegedly committed in Georgia.
- Currently, 123 countries have joined the ICC, but Ukraine, Russia, and the United States have not.
- The ICC can prosecute war crimes in relation to any country that has joined the court (Rome Statute, Art 12(1)). But that is not the only way the ICC can get jurisdiction.
- Another way is for a country that has not joined the court to grant the ICC jurisdiction to prosecute war crimes (or crimes against humanity or genocide) committed on its territory (Rome Statute, Art 12(3)).
- Ukraine has given the ICC jurisdiction to prosecute war crimes committed on its territory.
- A further 41 countries have also referred the situation in Ukraine to the ICC. (This was unnecessary in light of Ukraine’s granting of jurisdiction, but reflects support for the ICC to help Ukraine pursue accountability for crimes against its people).
- The ICC has opened an investigation into war crimes committed in Ukraine and is already gathering the evidence to hold perpetrators responsible for war crimes.
- Russia rejects the notion that the ICC can prosecute its nationals for war crimes committed in Ukraine on the grounds that Russia has not joined the ICC.
- At least until 2022, the United States, like Russia, has argued that the ICC cannot prosecute nationals of a state that has not joined the ICC.
- The exception to this, Russia and the United States have argued, is if the UN Security Council refers a situation to the ICC. Of course, with both Russia and the United States having a veto on the Security Council, the result is that the ICC can, in fact, prosecute nationals of states that have not joined the ICC as long as Russia, the United States, or the other permanent Security Council members do not use their veto.
- The U.S. position may be shifting. On March 14, 2022, the Senate unanimously passed a resolution that explicitly supports states’ petitioning the ICC to investigate Russian war crimes in Ukraine. On March 23, 2022, the U.S. War Crimes Ambassador at Large for Global Criminal Justice said, “we welcomed the fact that the new incoming prosecutor of the International Criminal Court has also opened an investigation into the situation within Ukraine.”
The Interview We Should be Hearing
With those facts in mind, the following is a fictional account of the kind of news media interview that would be helpful for the American public to hear, in order to understand the issue of accountability for war crimes in Ukraine.
JOURNALIST: Now we turn to mounting evidence of war crimes committed by Russian forces in Ukraine. This week, the world saw horrific images from the town of Bucha, about 90 minutes from the capital Kyiv. The images led President Joe Biden to call for a war crimes trial. Here to discuss accountability options with us is [BIDEN ADMINISTRATION OFFICIAL]. Welcome to the show.
BIDEN ADMINISTRATION OFFICIAL: Thanks for having me.
JOURNALIST: The administration is clearly very concerned about accountability for alleged war crimes in Ukraine. The Prosecutor of the International Criminal Court, or ICC, has opened an investigation. What more does the administration want to see?
BIDEN ADMINISTRATION OFFICIAL: Well, yes, the ICC is investigating but we’re not sure that is the best way to achieve accountability.
JOURNALIST: Oh, why is that?
BIDEN ADMINISTRATION OFFICIAL: Well, Russia and Ukraine, like the United States, are not members of the ICC.
JOURNALIST: Right, but as I understand it, Ukraine asked the ICC to come onto its territory to investigate these war crimes allegations, and gave the ICC jurisdiction. In fact, the ICC investigation is already underway?
BIDEN ADMINISTRATION OFFICIAL: Right. Ukraine has given the ICC jurisdiction, and the ICC is investigating. But this may not be the best way forward.
JOURNALIST: Can you explain why not?
BIDEN ADMINISTRATION: Our view has been that the ICC shouldn’t investigate nationals of a country that has not joined the court. And Russia has not joined the ICC.
JOURNALIST: Ok, so help me understand. Is this the general view? Is this the position just of the United States?
BIDEN ADMINISTRATION OFFICIAL: Well, uh, no, it is also the position of Russia. Russia does not think that the ICC can investigate crimes allegedly committed by nationals of states that have not joined the ICC. But I should say there is a pathway through which the ICC could get jurisdiction over nationals of countries that have not joined the Court, and that is if the U.N. Security Council authorizes it.
JOURNALIST: The U.N. Security Council?
BIDEN ADMINISTRATION OFFICIAL: Yes, in fact, that is how the ICC was able to prosecute Sudanese nationals for the atrocities in Darfur, even though Sudan has not joined the ICC.
JOURNALIST: But Russia has a veto on the U.N. Security Council.
BIDEN ADMINISTRATION OFFICIAL: Yes.
JOURNALIST: Okay, so just to make sure I’m clear here: The United States, at least in the past, agreed with Russia that the ICC cannot prosecute nationals whose countries have not joined the court. But as I understand it, in addition to Ukraine taking the route of asking the ICC to investigate these allegations against Russian forces, another 41 member countries also referred the situation to the ICC. Is that right?
BIDEN ADMINISTRATION OFFICIAL: Yes, that’s right.
JOURNALIST: And the U.S. Senate unanimously passed a resolution expressing direct support for those states’ referring the Ukraine situation to the ICC? Is that right too?
BIDEN ADMINISTRATION OFFICIAL: Yes.
JOURNALIST: And the ICC certainly seems to believe it has the authority to investigate Russian nationals for war crimes allegedly committed in Ukraine. Indeed the ICC Prosecutor just last week sought arrest warrants for Russian nationals for similar crimes committed in Georgia.
BIDEN ADMINISTRATION OFFICIAL: Uh, I believe so.
JOURNALIST: Does the Biden administration think that Ukraine doesn’t have the right to ask the ICC to come and investigate the mounting evidence of war crimes being committed on its territory against its nationals?
BIDEN ADMINISTRATION OFFICIAL: Well, the United States stands with the rest of the world in supporting Ukraine and seeking accountability for atrocities committed by Russian forces.
JOURNALIST: Ok, so we have an ICC war crimes investigation underway. I understand that Russia, and at least in the past the United States, have objected to the Court pursuing Russian nationals. But the ICC is a permanent court with nearly 20 years of experience doing these sorts of war crimes investigations. This seems like exactly the kind of accountability the Biden administration is concerned with. So let me ask you again, does the Biden administration oppose the ongoing ICC investigation of war crimes in Ukraine?
BIDEN ADMINISTRATION OFFICIAL: The United States does not oppose accountability if that’s what you’re asking.
JOURNALIST: Last month, the U.S. War Crimes Ambassador at Large for Global Criminal Justice said the United States “welcomed” the ICC Prosecutor’s opening of an investigation in Ukraine. Yet on Tuesday, the deputy national security advisor told NPR, “the ICC may be a challenging option, the International Criminal Court, because of the jurisdictional and membership issues you mentioned.” What does that mean?
BIDEN ADMINISTRATION OFFICIAL: [pause] Um, well there are certainly discussions still underway about this and we should be clear that there will be challenges because Russia will object to any attempt to get jurisdiction over its nationals since it is not a member of the court.
JOURNALIST: But the Biden administration welcomes the ICC investigation into Russian war crimes committed in Ukraine?
BIDEN ADMINISTRATION OFFICIAL: Well, yes but we have some concerns. I don’t want to get in front of conversations we’ll be having with our partners and allies, but in the past we have seen different tribunals and mechanisms set up to seek accountability for war crimes.
JOURNALIST: So you’d be looking to set up a new court to pursue war crimes instead of the ICC?
BIDEN ADMINISTRATION OFFICIAL: I don’t want to get ahead of those conversations. We’re just very concerned about accountability.
JOURNALIST: How long would it take to set up a new court and wouldn’t its activities interfere with the ICC’s ongoing investigation that is already well underway?
BIDEN ADMINISTRATION OFFICIAL: I don’t want to get ahead of conversations with our partners and allies. Like I said, we’re very concerned about accountability.
JOURNALIST: Indeed. Thank you for your time with us this morning. That was [BIDEN ADMINISTRATION OFFICIAL].
***
While the above is a fictional account, it is not hard to imagine a journalist, well-versed on the issues, being able to pursue exactly this line of questioning, with a result that leads to a better informed public.
It is worth adding that pushing Biden administration officials to justify their position on the ICC’s jurisdiction is not the same as arguing that the ICC is above criticism, nor is it an argument against supporting other accountability options that complement, rather than replicate, the ICC’s work.
Even if the Biden administration were to continue to argue that the ICC should not have authority to prosecute Russian nationals, it could play a positive role by, for example, supporting a forum that could prosecute the crime of aggression, which is a crime that the ICC does not have jurisdiction over in the Russia/Ukraine situation. The United States can also support the work of domestic prosecutors in countries that are seeking to bring war crimes charges against Russian nationals under universal jurisdiction or through Ukraine’s transfer of jurisdiction.
In any atrocity situation there are more perpetrators than available resources for prosecution and it is within the mandate of the ICC to focus on those “most responsible.” As the ICC likely pursues Russian nationals far up the chain of command, domestic prosecutors can prosecute those at lower levels. And a new tribunal could pursue the crime of aggression that the ICC cannot reach in this situation. All of these approaches are available and should be pursued. But in discussing the full range of options, the American public should be well informed about the ongoing work of the ICC to achieve accountability in Ukraine, and the U.S. policy toward the Court.
Editor’s note: Readers may also be interested in Adam Keith’s “Justice for Ukraine and the U.S. Government’s Anomalous Int’l Criminal Court Policy,” March 8, 2022.