Should the US do everything it can to help hold Russia accountable for its crimes in Ukraine? As Russian bombs and soldiers wreak havoc on the country, you would think so. Last week, however, the New York Times reported that the Pentagon was blocking US efforts to turn over key evidence to the International Criminal Court, or ICC.
Why? Military leaders fear setting a precedent for cooperation with the ICC that could lead to indictments of US soldiers by the court, according to the report.
Given the strong US support for Ukraine, helping the ICC’s efforts seems like an obvious thing to do. That’s why most of the Biden administration and other politicians, including even Republican Senator Lindsey Graham of South Carolina, support it. They recognize that cooperation with the ICC in this case will not endanger US soldiers and that the US has a strategic interest and a moral obligation to help.
Since illegally invading Ukraine on February 24, 2022, Russia has indiscriminately bombed hospitals and residential buildings, tortured and executed soldiers and civilians, forcibly relocated Ukrainian children, and annexed Ukrainian lands.
In international law, many of these crimes fall under the umbrella of crimes called atrocities, which include war crimes, crimes against humanity, and genocide. War crimes include not only the abuse of combatants, such as prisoners of war, but also attacks on civilians. Crimes against humanity refer to widespread attacks on civilians. Such attacks can amount to genocide if coordinated and carried out with the intent to destroy the group.
The USA is among the many countries that have accused Russia of such crimes. About a month after the Russian invasion, US Secretary of State Anthony J. Blinken stated that there is evidence that Russia has committed war crimes. President Biden called Russian President Vladimir Putin a “war criminal,” then in April, after revelations of the Bucha massacre, said Russian troops were committing acts of genocide and called for war crimes trials.
Following more closely the strictures of international law, his administration has been more cautious about accusations of genocide and crimes against humanity. However, on February 18, Vice President Kamala Harris announced. “The United States has officially decided that Russia has committed crimes against humanity.” Criminals, he promised, “will be brought to justice.”
How can Russian criminals be brought to justice? First of all, they should be tried. To do this, it is critical to gather a wide range of evidence, including witness statements and digital evidence such as satellite imagery. Ukraine has reported more than 70,000 Russian crimes. The international community, including the United States, supports these efforts.
The debate continues as to what type of evidence the court should use. Ukrainian courts have already tried Russian soldiers. The European Union has agreed to create a court focused on Russian aggression.
But there is a need for a court that will have broad powers and international legitimacy. Ideally, this would be done through the creation of a UN-backed tribunal along the lines of those created after the violence in Cambodia, Rwanda and the former Yugoslavia. Because it has veto power in the UN Security Council, however, Russia could block such efforts.
This is where the ICC and its tensions with the US lie.
The International Criminal Court was created in 1998 for just such situations, which include atrocity crimes and crimes of aggression. It is already in place and thus bypasses some Security Council policies.
Unsurprisingly, Ukraine wants the ICC to investigate Russian crimes, which the court began to do shortly after the invasion. It reportedly intends to open two war crimes cases and may even indict Putin. The US can be expected to be enthusiastically supportive.
But the fluctuations reported by the Pentagon are consistent with the long-simmering relationship between the US government and the ICC. The US never actually joined the court, although the Clinton administration helped negotiate the Rome Statute, ratified it, and signed the resulting treaty, despite reservations about politicized prosecutions. The George W. Bush administration withdrew the U.S. signature on deals and legislation to prevent the ICC from prosecuting U.S. citizens for abuses during the “war on terror.” U.S. troops have almost certainly committed atrocity crimes, including torture and executions.
When the ICC began investigating possible US crimes in Afghanistan, the Trump administration sanctioned the prosecutor. His successor, the current Prosecutor General, stopped those investigations.
Indeed, given the power and influence of the US, it is highly unlikely that cooperation with the ICC would in any way lead to the investigation of US soldiers for their reported crimes. The US is not yet a signatory to the ICC and has already provided limited support for several previous cases.
In particular, with the Biden administration prioritizing international human rights, Ukraine is a situation where US strategic interests overlap with its moral interests. The Pentagon must yield. The United States must do everything possible to help the Ukrainian people find justice for Russia’s horrific atrocities. It’s the right thing to do.
Alex Hinton is Professor Emeritus of Anthropology and Director of the Center for the Study of Genocide and Human Rights at Rutgers University in Newark. @AlexLHinton