(Editor’s note: The article provides an overview of a joint symposium with Articles of War on U.S. cooperation with the International Criminal Court’s Ukraine investigation. The symposium addresses topics discussed at a workshop held at The George Washington University Law School in February 2023. A report from the workshop, entitled, “U.S. Cooperation with the International Criminal Court on Investigation and Prosecution of Atrocities in Ukraine: Possibilities and Challenges,” is published here. All articles published in the joint symposium are available here.)
How much should the United States support the International Criminal Court (ICC) investigation into atrocities related to Russia’s invasion of Ukraine? The invasion itself was a blatant act of aggression under international law, and Russian forces have been committing gruesome acts of violence in the country, almost continuously, on a truly alarming scale. Public outcry among liberal democratic (and other) States around the world has galvanized strong support for the investigation and prosecution of these atrocities, prompting a 43-State referral to the ICC. Following this referral, ICC Prosecutor Karim Kahn announced an investigation into war crimes, crimes against humanity, and genocide on the territory of Ukraine dating from 2013, and he has since made multiple trips to the country. In addition, a pre-trial chamber of the Court now has issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, the Russian Commissioner for Children’s Rights.
U.S. executive branch officials at the highest levels have forcefully championed accountability for the horrific atrocities taking place in Ukraine, most notably President Joe Biden himself, who declared in a recent speech in Poland that the United States would seek justice for war crimes and crimes against humanity committed by Russians during the armed conflict. To that end, the United States has provided significant assistance to Ukraine to conduct domestic investigations and prosecutions, and it has also helped forge multilateral initiatives to assist those investigations.
But the United States is not a party to the ICC and has a complex relationship with the Court. And the administration has not yet made clear just how much it plans to assist the ICC Ukraine investigation. To be sure, U.S. officials have recently expressed support for the ICC’s investigation in general terms. But the question remains: how much can, and should, the United States support the ICC effort?
The U.S. Congress spoke to some aspects of this question at the end of last year. In a striking moment of bipartisanship, Congress lifted longstanding legal restrictions on the scope of possible cooperation between the United States and the ICC, at least as to Ukraine. The enactment of this legislation reflects the public’s appetite for holding Russia, and individual Russians, accountable for atrocities in Ukraine. It may also signal a shift in general perspectives on the ICC itself.
Congress had enacted the earlier legal restrictions on cooperation with the ICC during a period when significant factions in the United States were quite hostile to the idea of an international court that might exercise criminal jurisdiction over U.S. nationals, especially because of fears that the court could assert jurisdiction without the consent of the United States. Since then, the United States executive branch has at times provided assistance to the ICC, but it has long objected to the ability of the Court to assert jurisdiction over the nationals of non-party States such as the United States (for example, in the ongoing ICC investigation in Afghanistan). Indeed, at the end of the Trump administration, the United States went so far as to impose sanctions on Court officials, though the Biden administration subsequently lifted them.
Now, however, there appears to be a new, bipartisan consensus in favor of U.S. assistance to the ICC. Not only has this new legislation lifted the previous restrictions, but there is a growing clamor on Capitol Hill for the Biden administration to actually use this expanded legal authority. For example, a broad coalition of U.S. Senators recently urged the executive branch to “move forward expeditiously with support to the ICC’s work so that Putin and others around him know in no uncertain terms that accountability and justice for their crimes are forthcoming.”
A workshop held at The George Washington University Law School (“GW Law”) on Feb. 3, 2023, offered an opportunity for a bipartisan group of leading practitioners, current and former government officials, and scholars from around the country to discuss (without attribution following the Chatham House Rule) issues related to the possibilities and challenges of U.S. cooperation with the ICC Ukraine investigation. Now, West Point Press has published a summary of these discussions in a report entitled, “U.S. Cooperation with the International Criminal Court on Investigation and Prosecution of Atrocities in Ukraine: Possibilities and Challenges.” This article summarizes that valuable report and also kicks off a symposium that will be hosted jointly on Just Security and Articles of War in the coming weeks and that will address topics related to the discussion in the workshop.
The workshop report notes that the discussion addressed the following three key issues:
- The current legal regime governing potential U.S. cooperation with the ICC Ukraine investigation, including the interpretation of long-standing legislative restrictions on U.S. cooperation with the ICC, examples of past cooperation within those restrictions, and the ways in which the new legislation enacted in 2022 may impact U.S. cooperation going forward;
- ICC doctrines and policies that may affect the prospects for U.S. cooperation, including ICC treatment of non-party States and their nationals, the ICC’s complementarity jurisprudence and interpretations of gravity, and ICC decisions related to immunity; and
- Challenges related to potential U.S. cooperation, including, for example, challenges related to intelligence sharing, provision of advice, and the interaction of the ICC investigation with investigations and prosecutions conducted by domestic Ukrainian authorities, third-party States, or other international tribunals.
From my vantage point, some of the most significant aspects of the discussion include the consensus that the new legislation lifts virtually all domestic legal restrictions on both U.S. support for the ICC with regard to the Situation in Ukraine and the ability of the ICC to conduct investigative activity in the United States. In addition, there was near consensus in the room that it would serve U.S. interests for the United States to provide assistance to the ICC Ukraine investigation and also to fall off its longstanding objection to the Court’s jurisdiction over the nationals of non-party States. Here is a brief overview of the key points contained in the report.
Session One: Assessing the current U.S. legislative framework governing U.S. cooperation with the ICC and its implications for cooperation with the ICC Ukraine investigation
In this session, participants considered the impact of the new U.S. legislation, enacted at the end of 2022—Section 7073 of the FY-2023 Consolidated Appropriations Act (CAA), the Justice for Victims of War Crimes Act, and Sections 5948 and 6512 of the FY-2023 National Defense Authorization Act (NDAA)—on the legal framework governing U.S. cooperation with the ICC. Participants discussed the extent to which this new legislation expands the domestic legal authority for the United States to cooperate with the ICC regarding the ICC’s investigation in Ukraine.
This analysis inevitably required evaluation of the pre-existing legislative framework that had restricted U.S. cooperation with the ICC: the American Servicemembers’ Protection Act of 2002 (ASPA) (and the so-called “Dodd Amendment,” which carved out exceptions to these restrictions) and the Foreign Relations Authorization Act for Fiscal Years 2000 and 2001 (FRAA), as well as executive branch interpretation of that legislative framework as embodied in a 2010 Department of Justice Office of Legal Counsel (OLC) opinion.
The new legislative provisions signed into law at the end of 2022, in particular Section 7073 of the FY-2023 CAA, address each of these restrictions, opening up much broader legal authority for the United States to cooperate with the ICC Prosecutor’s Ukraine investigation.
Some of the key topics for discussion in this session included:
- The current status of the ICC Ukraine investigation;
- Interpretations of the long-standing legal framework limiting U.S. cooperation with the ICC, including the 2010 OLC opinion evaluating the statutory framework outlined above;
- The meaning of the statutory provision, prior to the 2022 amendments, which carved out an exception to the restrictions on U.S. support for the ICC, stating that the United States could overcome restrictions on rendering assistance to ICC efforts to bring to justice foreign nationals “accused” of atrocity crimes; and the question of whether this language barred assistance at early stages of an investigation when the Prosecutor is developing a crime base but prior to the existence or issuance of “accusations” against foreign nationals;
- Past instances of U.S. cooperation with the ICC, including non-opposition to, and support for, U.N. Security Council referrals, assistance in the arrest and surrender of fugitives, protection of witnesses, support for victims, and provision of information to aid investigations;
- The question of how the new legislation could impact U.S. cooperation with the ICC;
- The extent of potential U.S. collaboration with the ICC Ukraine investigation permitted within the new legal framework;
- The meaning of the new legislative text allowing ICC investigative activities within the United States;
- The extent to which the new legal framework allows cooperation before individuals are charged; and
- The types of cooperation that may currently be possible, including intelligence sharing, training of ICC personnel, detailing of U.S. personnel, submission of briefing materials or other legal assessments, transfer of suspects to the ICC, funding, support for victims and witnesses, and related issues.
The major outcomes from the discussion in Session One included the following:
- It is evident that Section 7073 of the FY-2023 CAA eliminated the legal prohibitions under the ASPA and the FRAA to providing assistance to the ICC related to the Situation in Ukraine.
- It is evident that Section 7073 of the FY-2023 CAA also overcomes the prior restrictions on ICC personnel conducting “investigative activity” within the United States, as related to the Situation in Ukraine.
- It is evident that, as to the Situation in Ukraine, there is no requirement for an ICC accusation (in whatever form) before the United States may render assistance to the ICC.
- Many participants praised the enactment of the Justice for Victims for War Crimes Act for closing a loophole in existing law and permitting the United States to prosecute war crimes allegedly committed abroad by non-citizens against non-citizen victims when the perpetrator is present in the United States, as well as the other legislation adopted at the end of the last Congress.
Session Two: Assessing ICC doctrines and policies and their implications for U.S. cooperation with the ICC Ukraine investigation
Public outcry over Russian atrocities in Ukraine has not only sparked changes in the domestic legal framework governing U.S. cooperation with the ICC, but it has also potentially opened up space for a policy shift in the United States’ relationship with the Court. Although the history of U.S. policy toward the ICC has proceeded through multiple phases, some elements of the ICC’s jurisdictional framework have played a role in hindering greater U.S. cooperation. The most significant obstacle to U.S. support for the Court is the ICC’s ability to assert jurisdiction over the nationals of non-party States. Additional legal and policy positions of the ICC that may impede U.S. assistance include the Court’s interpretation and implementation of the principles of complementarity (establishing that the Court may not consider a case pursued by domestic authorities unless the Court deems those authorities to be unwilling or unable to do so) and gravity (establishing that the Court should consider only the most serious cases).
In this session, participants discussed these impediments to the United States’ potential collaboration with the ICC’s Ukraine investigation. Because there was general acceptance in Session One that recent U.S. legislation has resolved virtually all of the domestic legal restrictions on U.S. cooperation with the ICC related to the Situation in Ukraine, participants observed that remaining impediments are thus limited to particular U.S. agencies’ policy concerns, either about cooperation with the ICC generally or cooperation on specific issues that may present difficulties, and, in addition, international law-related considerations pertaining to the ICC’s exercise of jurisdiction over the nationals of non-party States, as well as ICC doctrines and practices.
Some of the key points of discussion in the session therefore included:
- Longstanding U.S. legal and policy concerns about cooperation with the ICC, including:
- concerns about ICC jurisdiction over nationals of non-party States (other than through UN Security Council referrals or with the consent of the State of nationality of the accused), the risks of legal exposure for U.S. troops and other personnel, and the impact of the ICC Afghanistan investigation;
- concerns about specific ICC doctrines and policies, such as the manner in which the Court and the Prosecutor have applied the principles of complementarity and gravity; and
- potential concerns related to issues of immunity, particularly the principle of head-of-state immunity.
- Legal and policy benefits of U.S. support for the ICC Ukraine investigation.
- Potential recommendations for paths to greater U.S. cooperation with the ICC Ukraine investigation in a manner that mitigates risks and concerns related to U.S. support for the ICC.
The major outcomes from the discussion in Session Two included the following:
- Many participants noted that the potential benefits of cooperating with the ICC regarding the Situation in Ukraine likely outweigh whatever policy or legal concerns remain. Many participants also stressed that the United States should view the ICC as an asset, not a threat, especially in the interest of national security, continuing longstanding U.S. leadership in international justice and the need to further isolate, hold accountable, or even stigmatize Russia and the Putin Regime on the international stage.
- More specifically, a significant majority of participants expressed hope that the United States would overcome whatever concerns may remain regarding the ICC’s exercise of jurisdiction over the nationals of non-party States and move forward to tangibly support the ICC’s efforts in Ukraine in line with its rhetorical support. Participants found the U.S. objections to ICC jurisdiction over the nationals of non-party States to be unpersuasive to any actors that matter, including key U.S. allies and Court personnel. Participants also noted that the U.S. objection to ICC jurisdiction over nationals of non-party States does not need to be merged with questions about whether, and to what extent, the U.S. cooperates with the ICC. Rather, these issues can be addressed separately.
- Some participants also discussed the benefits of focusing on a more affirmative agenda, in which the United States could encourage the ICC to apply the principles of complementarity and gravity in a manner that the United States views as more faithful to the language and spirit of the Rome Statute. Participants also suggested that the United States might encourage the ICC Prosecutor to develop “durable” policies that might reflect these approaches. Participants urged the United States to take advantage of the current moment, while the Court is considering how to implement recommendations that emerged from the Independent Expert Review process on September 30, 2020, that could alleviate the United States’ concerns in these matters.
Session Three: Assessing the practical challenges of U.S. cooperation with the ICC Ukraine investigation
This session addressed some of the practical challenges that could arise regarding United States cooperation with the ICC Ukraine investigation. Participants structured their discussion by focusing primarily on three sets of challenges: (1) those related to information-sharing; (2) those related to detailing and/or training personnel; and (3) those related to the complex interactions between the ICC investigation and those investigations and prosecutions conducted by domestic Ukrainian authorities, third-party States, or other international mechanisms or tribunals. Participants also addressed other types of assistance that the United States might provide to the ICC and the issues that could arise related to that assistance. Throughout, participants also considered challenges that could arise related to the ICC’s institutional structure and culture, along with recommendations to address these challenges.
The major outcomes from the discussion in Session Three included the following:
- Multiple participants asserted that the United States and the ICC Prosecutor would need to be creative and proactive in pursuing a cooperative relationship.
- With respect to information-sharing, participants raised the possibility that the United States’ ability to share confidential or classified intelligence lead information with the ICC will need to take into account ICC jurisprudence and may, in some situations, require the Prosecutor to disclose potentially exculpatory information to the ICC judges, and potentially to the defense, if that information is ever used as evidence. This disclosure obligation does not apply to information exclusively provided as lead and background information, which some participants noted has been the U.S. practice for information-sharing with international tribunals in the past. Many participants agreed that the United States would need to think creatively to determine ways in which it can distill shareable information from confidential or classified intelligence. Participants suggested that regular briefings between the United States and the ICC Prosecutor could be useful to guide information-sharing and help build the relationship.
- With respect to detailing personnel, many participants asserted that U.S. cooperation faces considerable practical challenges, with some participants suggesting that the overall benefits of detailing personnel may not outweigh the costs. Some participants suggested that U.S. support in the form of training ICC personnel might be a more effective use of resources than detailing or secondment.
- Participants noted that the multitude of potential investigations into the ongoing crimes in Ukraine could pose competing demands and practical challenges to U.S. cooperation with the ICC.
- Participants discussed the benefits and drawbacks of a separate tribunal for prosecuting the crime of Russian aggression against Ukraine. Nonetheless, many participants seemed to accept that the United States should support leaving open the door to jurisdiction over aggression and developing a case for prosecution of that crime in the future.
- Most participants agreed that U.S. cooperation should extend to issues outside of the direct investigation of crimes to encompass, inter alia, victim and witness protection; however, some participants expressed concern that congressional appropriations limitations and/or ear-marks, relevant legislation, or diplomatic concerns may limit the ability of the United States to cooperate in this regard under some circumstances.
In addition to these key findings, the report also contains valuable framing papers by Ambassador Todd Buchwald, BG Shane Reeves and Professor Ron Alcala, and Professor Alex Whiting. The text of a fireside chat I had the privilege to conduct with Ambassador Beth Van Schaack, entitled “The Biden Administration’s Approach to International Criminal Justice,” is also contained in the document.
In sum, the report offers actionable information that could be used at this moment of opportunity for further engagement between the United States and the ICC.