(Editor’s note: The article is part 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.)
At a recent National Press Club event, Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, appeared far more open than the Defense Department has been toward the possibility of U.S. assistance to the International Criminal Court’s (ICC) investigation of Russian war crimes in Ukraine. Secretary of Defense Lloyd Austin has privately opposed such support and publicly expressed misgivings about it, citing concerns that the ICC might prosecute U.S. personnel in the future. While other U.S. agencies, including the State Department, wish to back the Court, President Biden reportedly has refrained from settling the issue.
When Milley was asked about the Pentagon’s opposition to sharing evidence of Russian war crimes with the ICC, he said:
I would just say war crimes have been committed by Russia. The indiscriminate shelling of civilian populations – by policy; not by accident, but by policy – is a war crime by international law. The slaughter of citizens in some of the towns and cities of Ukraine by Russian troops is a war crime. So I fully support the ICC in pursuit of those, and we’ll see which way it goes.
Whether or not Milley’s comments hint at a possible change in U.S. policy, they complicate the bureaucratic picture on this issue.
Below is a chronology of selected developments on the issue of U.S. support to the ICC’s Ukraine investigation. It traces the Biden administration’s position from a starting point of categorical opposition, through a short and sometimes confused period of public deliberation, to an apparent position of at least rhetorical support by the middle of last spring. Congress then seemed to consolidate that position at year’s end with legislation that aimed to remove any legal hurdles to more tangible forms of support as well.
But this spring, it became clear that the public expressions of U.S. support ran in parallel with a continuing, behind-the-scenes objection by the Defense Department. That objection appears to stand in the way of answering a request for Russia-related evidence from the ICC’s prosecutor but is apparently broader in scope than that request. That, in turn, has led to months of sustained scrutiny and pressure from members of Congress, human rights advocates from Ukraine and the United States, and Ukraine’s top prosecutor calling for the United States to provide evidence and other tangible assistance to the Ukraine investigation, not just make supportive statements about it.
2021: U.S. Objections to the ICC’s Jurisdiction
April: In announcing the withdrawal of the Trump administration’s sanctions against two senior ICC officials, Secretary of State Antony Blinken reaffirmed the U.S. government’s “longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties….”
Spring 2022: U.S. Officials Signal General Support for an Investigation into the Situation in Ukraine
Less than one week after Russia’s full-scale invasion of Ukraine, ICC prosecutor Karim Khan announced the opening of an investigation into “the situation in Ukraine,” following referrals from 39 ICC member States. After some initial hesitation, U.S. officials began to express general support for the investigation as part of a broader backing for accountability.
March 3-4: A White House spokesperson twice indicated that the U.S. government would provide information to the ICC, among other international bodies investigating Russian war crimes, but did not explain when asked how this would be reconciled with the U.S. objection to ICC action against the nationals of non-member States such as Russia. (Just Security published on March 8 an op-ed by Adam Keith discussing the weaknesses of the U.S. objection and calling for the U.S. government to set it aside.)
March 15: The U.S. Senate unanimously passed a resolution introduced by Senator Lindsey Graham (R-SC) that “encourage[d] member states to petition the ICC or other appropriate international tribunal to take any appropriate steps to investigate [Russian] war crimes and crimes against humanity” and “supports any investigation into” such crimes. (Just Security published on April 13 a broader collection by Ryan Goodman of statements and comments on accountability from members of Congress.)
March 23: After Secretary Blinken announced the U.S. determination that Russian forces had committed war crimes in Ukraine, Ambassador-at-Large for Global Criminal Justice Beth Van Schaack said to a reporter who asked about U.S. support for the ICC: “I think everything’s on the table. We’re considering all the various options for accountability. There have been no specific asks.”
Early April: In discussing with reporters options for justice in Ukraine, Deputy National Security Advisor Jon Finer noted to a reporter that “the ICC may be a challenging option…because of the jurisdictional and membership issues you mentioned,” while National Security Advisor Jake Sullivan noted that “[t]he U.S. has in the past been able to collaborate with the International Criminal Court in other contexts, despite not being a signatory.”
April 5: Former senior Bush administration lawyer John Bellinger and former Senator Chris Dodd (D-CT) published a Washington Post op-ed calling on the Biden administration to use existing exceptions in U.S. law to provide intelligence and other support to the ICC’s Ukraine investigation. They argued on several grounds that such support would not “be inconsistent with U.S. objections to the court’s claimed jurisdiction over U.S. personnel.”
Late April: When asked by Representative Sara Jacobs (D-CA), Secretary Blinken stated at a House Foreign Affairs Committee hearing on April 28 that the Biden administration supports the ICC’s Ukraine investigation and was “looking to see how we can support it.” (In subsequent months, U.S. officials made similar expressions of support before U.N. or European regional bodies or signed on to joint statements with other governments that did the same.)
Fall and Winter 2022: Congress Passes Legislation to Bolster U.S. Support to the ICC, at Least for Ukraine Investigation
September 28: At a Senate Judiciary Committee hearing, several senators, including Dick Durbin (D-IL), Sheldon Whitehouse (D-RI), and Graham, signaled to Justice and Homeland Security Department officials an interest in tangible U.S. support to the ICC. Graham noted the committee was exploring legislation to loosen restrictions on certain forms of such support and that the administration had signaled its backing.
December 29: President Biden signed into law an appropriations act that amended or overrode certain long-standing legal restrictions on U.S. support to the ICC, at least for its Ukraine investigation. Senator Chris Coons (D-DE), chairman of the relevant Senate Appropriations subcommittee, described the intent and effect of these provisions after the act’s passage: “With bipartisan support, I am proud to have authorized our government to support the International Criminal Court’s efforts to prosecute those responsible for the unspeakable horrors that have been committed against the Ukrainian people.”
Other provisions required the U.S. government – and the intelligence community in particular – to collect and preserve evidence of Russian atrocities, as well as to identify in a report to Congress the “process for a domestic, foreign, or international court or tribunal to request and obtain from the United States Government information related to war crimes or other atrocities.” The law also generally lifted a ban on U.S. funding to the ICC and allowed ICC officials to interview witnesses on U.S. territory for the Ukraine investigation. (Just Security published an explainer on the legislation by Todd Buchwald in March 2023.)
Spring 2023: U.S. Support Remains Rhetorical While the Defense Department Opposes Tangible Assistance to the ICC
Press reporting soon revealed that the Pentagon still objected to U.S. support for the ICC’s Ukraine investigation, leaving a significant gap between the statements of support coming from the State Department and White House and the prospects of material U.S. assistance for the court.
February 2: The State Department’s spokesperson referred specifically to U.S. support for the ICC in answering a broader question about accountability for Russian crimes in Ukraine: “The ICC is engaged in a process that we are supporting.”
March 8: The New York Times reported that the Defense Department was blocking a favorable U.S. response to a request of the ICC prosecutor for information regarding Russian war crimes in Ukraine. The Times reporting indicated that the issue had been raised through the interagency process – including a Feb. 3 meeting at the cabinet secretary level – to President Biden, who had not resolved it. According to the Times, Pentagon officials “fear setting a precedent that might help pave the way for [the ICC] to prosecute Americans.”
With reference to the new legislation, Graham told the Times that Pentagon officials “have raised their concerns, and they are not illegitimate, but I think on balance what we did in the legislation is the way to go and I want them to honor what we did,” noting the law had been “a collaborative effort” that Congress had done “with the administration.” (Just Security published an op-ed on the general outlines and stakes of this interagency dispute by Adam Keith on March 4.)
March 9: At a hearing of the House Permanent Select Committee on Intelligence, the two top U.S. intelligence officials appeared to dispute that there were any Pentagon or other internal barriers to the U.S. provision of intelligence on Russian war crimes to the ICC. (Representative Jason Crow (D-CO): “[I]s it your understanding that the Department of Defense is holding up the provision of information or intelligence to the ICC?” Director of National Intelligence Avril Haines: “No.”) Subsequent hearings suggest they may simply have been unaware of this issue.
March 17: The ICC announced that its judges had approved requests from the prosecutor for arrest warrants against Russian President Putin and an aide for war crimes. When a reporter asked for his reaction to the warrant against Putin, President Biden said, “Well, I think it’s justified. But the question is, it’s not recognized internationally by us either. But I think it makes a very strong point.”
March 24: In the first bipartisan congressional response to the March 8 Times report, six senators (Durbin, Graham, Bob Menendez (D-NJ), Thom Tillis (R-NC), Richard Blumenthal (D-CT), and Whitehouse) sent a letter to President Biden urging him to make use of the new legislative authority to support the ICC’s Ukraine investigation:
Last year’s bipartisan congressional action to enhance that support was done in collaboration with your administration to balance all perspectives on the U.S. relationship with the ICC. … [T]he United States reportedly has not yet shared key evidence that could aid in these prosecutions. . . . [W]e urge you 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.
April 5: A coalition of 37 Ukrainian civil society organizations focused on justice and accountability issued a memorandum on “Shared Guiding Principles on Accountability for Grave Crimes Committed in Ukraine.” Among other topics, the memorandum states:
Ensuring justice for grave crimes is based on the cooperation of states, which includes, inter alia, the sharing of information beneficial for effective prosecution and the execution of arrest warrants. In this context, it is important to support and encourage further cooperation between the United States and the ICC.
April 19: At a House Foreign Affairs Committee hearing, when asked about U.S. support to the ICC, Ukrainian Prosecutor General Kostin described the cooperation and division of labor between domestic Ukrainian justice institutions and the ICC: “Please know that if you support the ICC, you are supporting us.”
Deputy Attorney General Lisa Monaco’s written testimony for a Senate Judiciary Committee hearing acknowledged the ICC-related provisions in the appropriations act and noted they were “under review.” At the hearing itself, in response to questions from two senators (Durbin and Graham), Monaco acknowledged that there were no legal barriers to U.S. support. Graham unsuccessfully pressed Monaco to confirm that the Defense Department was blocking such support and he said:
I’ve been told by people who care that the intel is not flowing, as Senator Durbin described, because of the Department of Defense. …We’re not jeopardizing any American soldier. … I don’t care what [the Pentagon’s] concerns are, they can share them with me.
Summer 2022: Congressional Pressure on the Biden Administration Continues
A bipartisan group of senior senators continued using a series of public hearings and letters to press President Biden and top administration officials to match policy to rhetoric and use their new authorities to assist the ICC’s Ukraine investigation. They were joined by other members of Congress and retired generals as well.
May 11: At a Senate Appropriations defense subcommittee hearing, two senators (again Durbin and Graham) challenged Secretary of Defense Lloyd Austin’s statements of support for pursuing accountability for Russia’s war crimes. In a lengthy exchange featuring the first public, high-level Defense Department comments on the issue, Austin indicated he had “concerns about reciprocity going forward” and “remain[ed] concerned about the protection of U.S. military personnel” but did not further explain his position when pressed.
May 23: In an op-ed in Defense One, retired U.S. generals Philip Breedlove, Wesley Clark, and Ben Hodges analyzed and sought to allay Secretary Austin’s concerns and urged President Biden to overrule the Pentagon’s opposition. “
[T]he United States can manage the legal risks of our own deployments overseas without separating ourselves from the institutions that Ukraine’s government and civil society are asking the United States to assist as they pursue justice. President Biden should authorize the sharing of U.S. evidence and other support for the ICC’s important work.
May 31: At a Senate Foreign Relations Committee hearing with Van Schaack, multiple senators (Menendez, James Risch (R-ID), Coons, Chris Van Hollen (D-MD)) expressed frustration with the Defense Department’s objection. Van Hollen obtained Van Schaack’s confirmation of the Defense Department’s role in impeding U.S. support to the court.
June 6: Twenty-three members of Congress (led by Crow and Joe Wilson (R-SC), with 14 Democrats and nine Republicans) send a letter urging President Biden to support the ICC in Ukraine:
We were disappointed to learn through public reporting that the administration may choose to not use this new authority due to objections by the Department of Defense. We understand that [the Defense Department]’s objections are based on historic concerns regarding our non-party status to the ICC and setting precedent to change our status. However, our bipartisan Congressional coalition already took these concerns into account and narrowly tailored the authority accordingly.
June 23: Four senators (Durbin, Graham, Menendez, and Tillis) sent another bipartisan letter calling on Biden to support the ICC and disputing the risks of doing so:
We understand that the United States’ unwillingness to share this key information with the ICC is causing partner nations to hold back as well. Despite your public condemnation of Russian crimes against humanity and war crimes in Ukraine, our current posture on the ICC sends a message to the world that parochial self-interested concerns, even where unfounded, take priority over seeking justice for Putin’s crimes. We believe it is possible to support credible investigations by the court without putting our own servicemembers at risk of prosecution….
June 30: As noted above, Milley gave a seemingly positive, if caveated, response when asked at a National Press Club event about the Pentagon’s apparent opposition to sharing evidence of Russian war crimes with the ICC:
I would just say war crimes have been committed by Russia. The indiscriminate shelling of civilian populations – by policy; not by accident, but by policy – is a war crime by international law. The slaughter of citizens in some of the towns and cities of Ukraine by Russian troops is a war crime. So I fully support the ICC in pursuit of those, and we’ll see which way it goes.
July 3: In taking questions at an event on the launch of a European initiative to gather evidence of Russia’s crime of aggression, Assistant Attorney General Kenneth Polite appeared to express U.S. support for the ICC’s investigation of war crimes in Ukraine. Polite noted that the Justice Department “has taken the position that the ICC’s charges and arrest warrants against Putin were justified,” and twice noted that the ICC is among the justice mechanisms the United States supports.