President Joe Biden’s recent order directing U.S. agencies to share evidence of Russian war crimes in Ukraine with the International Criminal Court (ICC) was a small but significant change in the U.S. government’s sometimes hostile relationship with the Court.
Despite U.S. calls for accountability for Russian war crimes, Biden’s decision came only after months of interagency debate, and over the Defense Department’s opposition. The debate centered around the U.S. government’s “longstanding and continuing objection” to the ICC’s ability to investigate the citizens of countries that have not joined the Court – like Russians or Americans – for crimes they allegedly commit in countries that have joined, like Ukraine or Afghanistan.
For 25 years, that objection has found scant support among U.S. allies or in the ICC’s founding treaty, the Rome Statute. Biden’s decision quietly reconciles the U.S. government to that fact, allowing the United States to support a key accountability institution in Ukraine and other situations where it would have otherwise refused. Importantly, it may also end a dangerous practice of wishful thinking about U.S. exposure to the ICC’s jurisdiction, one that has helped enable U.S. policies ranging from attacks on the Court to torture.
U.S. Evidence Sharing on Atrocities in Ukraine, Other ICC Support Possible
In the immediate term, Biden’s decision means that the U.S. government can now actively support the ICC’s Ukraine investigation, regardless of which specific individuals the Court investigates.
That could mean sharing U.S. satellite imagery that would help prove Ukrainian children were unlawfully deported to camps in Russia; providing communications intercepts that establish the chain of command for a brutal Russian army unit; showing whether a commander knew the civilian facility he bombed had no military value; or issuing monetary rewards to help pin down the whereabouts of lower-profile defendants. None of this was previously possible.
Other impacts of Biden’s decision are less obvious, and require an understanding of how U.S. policy toward the ICC has worked.
The U.S. government has at best taken a case-by-case approach to the ICC. When deciding whether it will support the Court, it has filtered new investigations or requests for assistance through a complex screen of legal restrictions and policy preferences – of which the general objection to ICC scrutiny of those from non-member States was just one consideration.
Over time, some of these filters have been abandoned. The U.S. government initially insisted, for example, that the ICC should not be able to launch an investigation without a State’s request, but it relented in 2010 to back the ICC’s investigation into post-election violence in Kenya. Other legal and policy filters remain (for instance, the U.S. cannot support ICC investigations of U.S. persons), while a recent law loosened other restrictions (ICC staff can now investigate on U.S. territory, but only for the Ukraine investigation).
Biden’s recent decision has removed a significant filter, one that had blocked U.S. support for not just the Ukraine investigation but several others in which the ICC is investigating individuals from non-member States. The U.S. government will likely continue opposing the Court’s Palestine investigation on other grounds, but it may now back the ICC in Myanmar and Georgia, or possibly in investigating killings by Russia’s Wagner Group in several African countries where the ICC is already investigating.
Embracing Reality, If Not Ending U.S. Exceptionalism
Beyond serving as a filter for U.S. support, the U.S. objection to the ICC’s jurisdiction and the wishful thinking it demonstrated have also enabled misleading statements and harmful actions. For many years, the U.S. view that the ICC should not have jurisdiction over everyone in the territory of a member State has all too often slid into loose, even false arguments that the Court could not act in those circumstances – especially regarding U.S. torture in Afghanistan and other ICC member States.
Senior Trump administration officials, for example, justified their unprecedented campaign of targeted sanctions against ICC officials with statements that the ICC “has no jurisdiction…over our people.” An Obama administration nominee used the objection to explain to Congress that U.S. officials involved in the CIA’s use of torture did not face a risk of ICC prosecution. Worst of all, in one of the legal memos that paved the way for the U.S. use of waterboarding and other acts of torture, former Justice Department lawyer John Yoo reassured the Bush White House that, among other claims, U.S. nationals “cannot…be subject to ICC prosecution.”
President Biden’s decision to set aside the U.S. objection is thus as worthwhile for what it might help prevent as for what it enables. But there is still much his decision does not do.
Early in Russia’s full-scale invasion of Ukraine, the Irish writer Fintan O’Toole observed that confronting Putin would require sacrifices from western democracies. For Germany, he wrote, that meant giving up Russian natural gas; for the United States, it meant giving up “the comfort of its exceptionalism on the question of war crimes” by joining the ICC, an act by which the U.S. government would tangibly “accept without reservation that the standards it applies to [Putin] also apply to itself.”
Biden’s decision does not do that. It does not end the U.S. government’s tradition of trying to exempt itself from the scrutiny of certain international human rights mechanisms. It will not ensure that U.S. institutions more consistently hold U.S. forces to account for their actions abroad, or that the United States is as demanding of its friends as it is of its adversaries when it comes to accountability. Those advocacy challenges remain.
His decision does give up an illusion, though, one that kept the U.S. government from supporting justice and allowed it to avoid acknowledging legal risks in the world as it is. It sets aside a defensive talking point in favor of helping the victims of Vladimir Putin’s war find a measure of justice. And it should be a down payment on further change.