The US response to the International Criminal Court (ICC or Court) prosecution of Russian war crimes reveals the contortions of long-held and selective reasoning on international legal obligations. Choosing to support longstanding policy may ultimately end in a win for Russian aggression.
In early March, 2023, the New York Times reported that the Pentagon was blocking the Biden administration from sharing evidence with the ICC about alleged war crimes committed in Ukraine. According to the report, “American military leaders oppose helping the Court investigate Russians because they fear setting a precedent that might help pave the way for it to prosecute Americans.” In what appeared to be a departure from the United States’ historically testy relationship with the Court, the Biden administration has acknowledged that the ICC might be the best avenue for holding President Vladimir Putin and others in his military chain of command to account for atrocity crimes committed in Ukraine.
The issuing of arrest warrants for Putin and Presidential Commissioner for Children’s Rights Maria Lvova-Belova, however, further complicated the matter. Biden commented on the arrest warrants by saying, “Well, I think it’s justified. But the question is – [the ICC is] not recognised internationally by us either. But I think it makes a very strong point.”
The ICC’s decision to issue arrest warrants fulfils a goal of US foreign policy, but Washington nonetheless finds itself in an unnecessarily compromised position, hoisted by its own proverbial petard. In and of itself, the US’ self-imposed exile from the ICC would not be important, if not for the fact that the US has promoted international law – in particular, international law as it relates to international criminal justice – as if it were synonymous with American values, while at the same time emphasising the superiority of American values over international standards.
The US was initially supportive of the creation of a permanent international criminal court. However, as the 1998 negotiations in Rome progressed, the US ended up being only one of seven countries to vote against adopting the Rome Statute as the founding document for the ICC.
The objections raised in Rome were twofold. First, the US rejected to the reduced role for the UN Security Council in referring crimes to the Court. Second, while they were content for the Court to have jurisdiction over nationals of state parties, the US regarded the proposal (subsequently adopted) that the Court be able to exercise jurisdiction over nationals of non-states parties, provided the alleged crime took place on the territory of a state party to the Statute, as a proverbial deal-breaker. Since 1998, a third core objection has materialised over interpretations of the Court’s complementarity principle, which means that the ICC is “a court of last resort,” and only has jurisdiction when a country is either unwilling or genuinely unable to investigate and prosecute so-called atrocity crimes. These three objections have remained, more or less, at the core of Washington’s awkward, and often openly hostile, relationship with the ICC.
The two most openly hostile periods occurred during the presidencies of George W. Bush and Donald Trump. Having unsigned the Rome Statute, George W. Bush’s administration then legislated against the Court. The 2002 American Servicemembers’ Protection Act prohibited almost all US support for and cooperation with the ICC and, most controversially, allowed the US president to use “all means necessary and appropriate” to free Americans “being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court” (hence often being referred to as The Hague Invasion Act). Simultaneously, the US undertook an aggressive campaign of bilateral immunity agreements (BIAs) which committed signatories to the Rome Statute not to turn over American citizens to the Court.
In June 2020, Trump issued an Executive Order authorising sanctions against ICC staff investigating American troops and intelligence officials and those of allied nations, including Israel, for possible war crimes in Afghanistan and elsewhere. Later that year, then Secretary of State Mike Pompeo called the ICC a “thoroughly broken and corrupted institution,” after which he announced sanctions on Fatou Bensouda, a Gambian lawyer and at the time a prosecutor for the ICC, and a colleague in an attempt to stop their inquiry into potential war crimes by American forces in Afghanistan.
Outside of these two examples, US administrations have engaged cautiously with the Court. In its second term, the Bush administration supported the UN Security Council resolution that referred the Darfur situation to the Court, and the Obama administration lent critical support to the surrender of ICC fugitives Bosco Ntaganda and Dominic Ongwen, and supported proposed Security Council Resolutions that sought to refer Syria to the Court.
The Biden administration, while never seeking to join the Court, has certainly sought to ease the more overt tensions created by Trump. As well as abolishing the Executive Order, they quietly legislated to allow the US to render assistance “to the International Criminal Court to assist with investigations and prosecutions of foreign nationals related to the Situation in Ukraine, including to support victims and witnesses.”
The US, however, remains compromised. Their primary issue as it relates to the ICC is their strong and vocal opposition to the Court’s jurisdiction over nationals of states that are not party to the Rome Statute. The US argues that as a non-signatory, the ICC has no jurisdiction over US nationals, even if they commit crimes on the territory of Court members. The problem for the US is that Russia is also a non-signatory, and the jurisdiction that the Court would have over Russian nationals comes from crimes committed on the territory of Ukraine (who, somewhat confusingly, is also a non-signatory, but has granted the Court jurisdiction per Article 12 of the Rome Statute). Thus, the US will recognise the Court’s jurisdiction over nationals of non-signatories they don’t like, but not over US nationals.
The obvious solution to this apparent hypocrisy would be for the US to re-sign and ratify the Rome Statute. As much as anything else, recent events have demonstrated that the Court can serve as a useful foreign policy tool for the US. But there are two reasons why this is unlikely to happen any time soon. First, through expressions of US exceptionalism, Washington doesn’t want US service personal prosecuted by international courts. Second, the US is spooked by the spectre of a hypothetical “rogue prosecutor” abusing the complimentarily principle, and initiating investigations against US nationals even if US courts had investigated or prosecuted per Article 17 of the Rome Statute. But this fear seems misplaced, disingenuous even, when one considers the low bar set by the Office of the Prosecutor in its decision on alleged crimes committed by UK service personal in Iraq.
The issuing of arrest warrants for Putin and Lvova-Belova is a small but important step in finding justice from Russia’s war in Ukraine. The US has been as vocal as any other country on the need to prosecute those responsible for atrocities committed in Ukraine. The ICC is the best equipped institution to carry out those prosecutions. The US’ continued non-membership, informed by ideological hubris and basic misconceptions of how the Court works, is therefore not just poor foreign policy. The US is presenting itself as a bulwark of international order against a lawless Russia. Its continued intransigence vis-à-vis the Court also undermines its efforts and claims as a protector of the rule of law and promoter of international justice.
Dr Matt Killingsworth is a senior lecturer in International Relations at the University of Tasmania. He is co-editor of Violence and the State (Manchester University Press, 2015) and the forthcoming Civility, Barbarism and the Evolution of International Humanitarian Law: Who Do the Laws of War Protect? (Cambridge University Press). His current research focuses on the evolution of the modern laws of war and the International Criminal Court. He is member of the Tasmanian Red Cross International Humanitarian Law Committee and a regular contributor to local and national media. He tweets at: @mevanworth
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