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President Biden signs H.R. 2471, the “Consolidated Appropriations Act, 2022,” in the Indian Treaty Room of the White House in Washington, D.C., on March 15, 2022.

President Biden signs H.R. 2471, the “Consolidated Appropriations Act, 2022,” in the Indian Treaty Room of the White House in Washington, D.C., on March 15, 2022. (Samuel Corum/Bloomberg)

As more accounts of apparent Russian atrocities emerge from Ukraine, many American political leaders are developing a surprising new interest in the International Criminal Court, which was established in 2002 to try international crimes. A Senate resolution sponsored by members of both parties in early March - led by Sen. Lindsey Graham, R-S.C., - speaks of the ICC with great respect, describing it as “an international tribunal that seeks to uphold the rule of law, especially in areas where no rule of law exists.” The resolution encouraged member states to petition the ICC to authorize any and all “investigations into war crimes and crimes against humanity committed by the Russian Armed Forces and their proxies and President Putin’s military commanders, at the direction of President Vladimir Putin.”

Reading this robust endorsement of the ICC’s role in enforcing international norms, it would have been easy to forget that not long ago the United States levied sanctions - usually reserved for those who violate international law rather than those who enforce it - on the then-ICC prosecutor Fatou Bensouda and other ICC personnel. President Donald Trump ordered the sanctions in June 2020, a few months after the pretrial chamber of the ICC authorized Bensouda to investigate possible war crimes and crimes against humanity by U.S., Afghan, and Taliban forces in Afghanistan and at various CIA black sites located within nations that were party to the ICC. The move made good on threats Trump’s national security adviser John Bolton had made in 2018 in a speech before the Federalist Society, where he argued that the ICC, by investigating U.S. actions in Afghanistan, “unacceptably threatens American sovereignty and U.S. national security interests.” The United States lifted the sanctions in April 2021, after U.S. pressure caused the court to drop the case.

The United States in general, not just the Republican Party, has long had a fraught relationship with the ICC. Indeed, some elements of the Biden administration, notably the Pentagon, remain wary of engaging with it, even though President Joe Biden himself has labeled Putin a “war criminal” and called for a “war-crimes trial.” Nonetheless, this moment, in which many nations around the world - and millions of their citizens - want to see Russia held accountable for its deplorable attacks on civilians, could offer the United States an opportunity to build a new relationship that could benefit both it and the court.

America’s ambivalence about the ICC has been there from the start. When President Bill Clinton signed the Rome Statute (the treaty that created the ICC) in his final days in office, the administration expressed concern about “politicized” prosecutions, and insisted that the court’s jurisdiction over U.S. personnel could come only after the U.S. Senate had given its advice and consent to it - which would happen only if those problems were remedied. President George W. Bush then promptly “unsigned” the treaty. Congress not long after passed the American Service-Members’ Protection Act - a law known to some of its critics as the “Hague Invasion Act,” as it authorized the president to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” And it prohibited U.S. military aid to countries that joined the ICC unless they were members of NATO, were a major non-NATO ally, or had agreed not to surrender U.S. personnel to the court. The United States then proceeded to pressure states that were parties to the Rome Statute enter into agreements promising not to hand Americans over to the court on threat of losing their military assistance.

A key argument the United States deployed against the ICC’s investigation in Afghanistan - that the United States is not a party to the Rome Statute - is true of Russia as well. In both cases, ICC jurisdiction came about because the alleged crimes were committed on the territory of a state that had acceded to the jurisdiction of the court - Ukraine through special declarations to the ICC issued in 2014 and 2015, shortly after Russia first invaded Crimea; and Afghanistan as a party to the Rome Statute. Ukraine’s second declaration was not time-bound, so it opened the door to prosecutions of war crimes, crimes against humanity, and genocide committed by either side in the current war.

Shortly after the war in Ukraine began, in February, ICC prosecutor Karim Khan announced that he was opening an investigation into the situation in Ukraine - given widespread complaints that the Russians were indiscriminately shelling civilian neighborhoods (in Kharkiv, for example). In the weeks since Khan’s announcement, 41 state parties have submitted referrals supporting the investigation, allowing him to launch the investigation immediately (that is, without first seeking the approval of the pretrial chamber of the court). Meanwhile reports of atrocities have only grown: There’s been the bombing of a theater in Mariupol, in which hundreds of civilians were sheltering; evidence of torture, sexual assault, dismemberment and beheading of civilians in Bucha; and a missile strike on a train station in Kramatorsk, killing at least 50.

Is it hypocritical, under these circumstances, for the United States to embrace a court it has so aggressively rejected in the past? Perhaps so. But that doesn’t change the fact that the United States is surely right to support accountability for the horrific crimes being committed in Ukraine now. And the ICC is the institution best poised to take up that charge. Granted, it is not the only such institution: the Ukrainian prosecutor general is working to investigate thousands of war crimes, and Ukrainian President Volodymyr Zelensky just announced that he had approved the creation of a “special mechanism” in Ukraine to investigate Russian crimes. (What this means is still not clear, but the goal appears to be to enable the joint work of national and international experts to support domestic prosecutions.) Those efforts for accountability in Ukrainian should continue, but the Ukrainian courts sit in a war zone, obviously threatening their ability to function. Moreover, prosecutions in domestic courts face challenges - including head-of-state immunity - that an international court likely would not. Prosecutions in the domestic courts of other countries would face similar immunity issues. (Lithuania, Poland, and Germany have begun domestic investigations of war crimes in Ukraine under statutes that provide for “universal jurisdiction” over war crimes.)

The question is how the United States might productively engage with the ICC. There is certainly little prospect that the United States will formally join the body. Nor is the United States likely to reverse its opposition to ICC investigation of its alleged crimes in Afghanistan and elsewhere. There is, moreover, an appropriations law from 1999 that bars the United States from spending funds to support the court, and the codified and amended American Service-Members Protection Act prohibits other institutional support, though, according to a 2010 memo by the Justice Department’s Office of Legal Counsel, it allows for number of exceptions (such as training ICC staff and providing it with certain kinds of information). While ideally those laws would be amended to allow for greater cooperation, even if they are not there is plenty of room for compromise that could benefit both sides in this complicated relationship.

The United States has demonstrated before and during this conflict that it has unparalleled intelligence regarding Russian military plans and activities. When he announced that the U.S. government had concluded that Russia’s forces have committed war crimes in Ukraine, Secretary of State Antony Blinken specifically said that the assessment was based partly on intelligence sources.

Sharing information with the ICC prosecutor as he investigates crimes committed in Ukraine could be an important step toward assuring accountability. The 2010 OLC memo concluded that the United States could provide “intelligence, law enforcement information, diplomatic reporting, investigative actions, and testimony . . . to the ICC for particular investigations or prosecutions of foreign nationals accused of genocide, war crimes, or crimes against humanity.” In addition to training ICC personnel, the OLC said, the United States could “detail personnel for an ICC investigation or prosecution of a foreign national” as long as the support is “case-specific” rather than institutional. The United States could also provide assistance and support to the Ukraine government in proper evidence collection and handling - crucial to allowing prosecutions to proceed in any legal forum.

Providing such support to the Ukrainian government and the ICC would advance the cause of international justice. It would strengthen the court, which, after focusing most of its efforts on African countries and caving to U.S. threats by ending its investigation in Afghanistan, sorely needs to build its legitimacy. And it would help begin to repair the reputation of the United States, once a leading champion of international justice, as an advocate for international law and accountability for the most heinous international crimes.

There is no getting around the charge of hypocrisy. To repair its image, the United States clearly should, in future conflicts, be more transparent and aggressive about its own investigations into alleged crimes by military personnel - making clear that it respects the ICC’s values, if not its jurisdictional authority. But supporting the ICC now would provide some measure of justice to the people of Ukraine, who continue to suffer in Russia’s illegal war. That goal is more important than a foolish consistency.

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Oona Hathaway is a professor of law and political science at Yale University, and co-author of “The Internationalists: How a Radical Plan to Outlaw War Remade the World.


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