Biden Administration Splits on Prosecuting Russia for War Crimes in Ukraine

Twenty years after the United States invaded Iraq — an act of aggression that paved the way for war crimes there — Pentagon officials have sought to block the Biden administration’s efforts to aid the International Criminal Court’s investigation of war crimes committed by Russia during its yearlong invasion of Ukraine.

Neither the U.S. nor Russia are members of The Hague-based international court, whose jurisdiction includes war crimes and crimes against humanity. Ukraine is not a member either, but it has granted the court authority to investigate crimes committed on its territory. The U.S. government has long held a hostile stance toward the ICC, at first fighting to restrict its mandate and later fiercely opposing investigations into itself and its allies, including Israel. As The Intercept reported, the U.S. went to great lengths to derail an investigation of crimes committed in Afghanistan by U.S. forces and the U.S.-supported former Afghan government.

The ICC’s inability to hold the U.S. accountable — and the lack of legal proceedings at the domestic level for U.S. officials responsible for abuses — has meant that two decades into the war on terror, U.S. crimes in Iraq, Afghanistan, and elsewhere have largely remained unpunished. “There hasn’t been any kind of proper accounting and reckoning,” Katherine Gallagher, a senior attorney at the Center for Constitutional Rights who has represented victims of U.S. torture before the ICC, told The Intercept.

“In general, the discussion today seems to be, ‘Let’s move on,’” she added. “The whole discussion as to whether or not to have a tribunal on aggression [for Russia] is in my mind sort of schizophrenic when you have the 20th anniversary of the U.S. invasion of Iraq coming up.”

Still, the invasion of Ukraine has brought renewed momentum to the quest for international justice and support for the ICC even from countries that have long opposed it — the U.S. first among them.

“We’re living a Ukraine moment in international justice, a Nuremberg moment,” Reed Brody, a human rights attorney specializing in mass atrocities, told The Intercept. “Previous objections and qualms and hesitations are being swept away by the response to Ukraine, and frankly by the massive war crimes that Russia is committing.”

While much of the Biden administration, including the State and Justice departments and some intelligence agencies, support turning U.S.-gathered evidence of Russian crimes over to the ICC, defense officials have so far sought to stop those efforts, the New York Times reported this month. Those officials oppose U.S. involvement in the ICC’s investigation because they fear it would set a precedent that could one day lead to the prosecution of Americans for past or future crimes — a concern long voiced by multiple U.S. administrations, including the current one.

State Department officials have repeatedly said that they do not believe the ICC should exert jurisdiction over citizens of nonmember countries, but they have not explained why an exception should be made for Russian citizens. A department spokesperson did not answer The Intercept’s questions about that and about what assistance, if any, the administration has so far provided for the court’s investigation of Russian crimes in Ukraine.

“As a general matter, we do not discuss what specific support we provide to the ICC, as it may implicate the investigations and the safety of victims and witnesses,” the spokesperson wrote in a statement. “We are working with our interagency partners to consider how best to support these efforts, including in light of the recent legislative changes.”

While most critics of the U.S. stance toward the ICC stress that the court should investigate Russian crimes, the administration’s sudden change of tune has prompted accusations of hypocrisy.

“The Pentagon is the one who is actually being consistent here, saying, ‘How can we support the investigation of Russian nationals when we are opposed to the investigation of American nationals in Afghanistan?’” said Brody. “The bottom line is that the U.S. wants an ironclad guarantee that no American official will ever be prosecuted by the ICC or any other institution of international justice.”

Brody also cautioned that growing U.S. support for the ICC — even as parts of the government continue to oppose it — is unlikely to extend beyond Ukraine and is only possible because investigations of U.S. crimes by the court are no longer an immediate prospect. Two years ago, the ICC prosecutor “deprioritized” its Afghanistan investigation to only include acts committed by the Taliban and the Islamic State there — essentially leaving the U.S. off the hook for its own crimes in the country.

“This would be a little harder for the U.S. if there was actually an active investigation,” Brody noted, referring to the U.S. support for the investigation of Russian crimes. “And I certainly don’t see the U.S. getting behind an investigation of Israeli war crimes in Palestine. That’s never going to happen.”

Another War of Aggression

When the U.S. invaded Iraq in March 2003, it did so neither in self-defense nor with the authorization of the U.N. Security Council — making the war illegal under international standards. “That was a war of aggression,” said Gallagher, of CCR. “It was an unlawful war.”

Because neither Iraq nor the U.S. are members of the court, the ICC had no jurisdiction to investigate potential crimes committed by U.S. forces there. Because the United Kingdom is a member state, however, the court did twice open, and twice close, a preliminary probe of acts committed by British troops in Iraq, including murder, torture, and other “forms of ill-treatment.”

The fact that the investigation of British crimes never went further, and that the court had no jurisdiction over crimes committed by the U.S. during its yearslong war in Iraq, has contributed to a long-running credibility problem for the ICC, which since its early days has been mired in accusations of double standards and a widespread perception that it is impotent to take on the world’s most powerful countries.

The U.S. invasion of Iraq has also been an unspoken point of contention as a growing coalition of countries has been seeking ways to hold Russia accountable for the invasion of Ukraine, both foreign officials and international law experts have told The Intercept. “Discussion about prosecuting aggression by Russia — I am not saying that that is unjustified, but it is selective,” said Gallagher.

“They don’t want to deal with the crime of aggression because they know that if it’s used against Russia, a permanent member of the Security Council, today, it might be used against them tomorrow,” Philippe Sands, a prominent international law specialist and staunch supporter of a special tribunal for Ukraine, told The Intercept last fall. “The big elephant in the room in Ukraine is Iraq, which was also a manifestly illegal war and produced a very different response in Britain and in the United States.”

The U.S. vs. the ICC

The U.S. government has opposed the ICC’s mandate since it tried and failed to write into the 1998 Rome Statute, the international treaty that established the court, an exemption from prosecution for nationals of nonmember states.

That means the ICC is now able to investigate Russian nationals for crimes they committed in Ukraine, even though Russia is not a party to the court. But that also means that Americans accused of crimes committed in member states — like Afghanistan — or U.S. allies from nonmember states like Israel committing crimes in places that are members of the court — like Palestine — can be investigated and potentially prosecuted by the ICC.

That’s a prospect the U.S. has fiercely fought off for more than two decades.

In 2002, one month after the court began operating, Congress passed the American Service-Members’ Protection Act, quickly dubbed “The Hague Invasion Act,” which sought to protect U.S. personnel from international prosecution by authorizing the use of military force to liberate any U.S. citizens or allies being held by the court. At the time, U.S. officials also pursued dozens of bilateral agreements to pressure other countries not to collaborate with the court. The U.S. again lobbied to restrict the ICC’s jurisdiction in 2010, as part of the Kampala amendments process to the Rome Statute, when it successfully insisted that the court should only be able to investigate the crime of aggression by a nonmember party with the authorization of the Security Council, where the U.S. — and Russia — hold veto power.

“The U.S uses international law as a tool of foreign policy, and so it has engaged in the production of law to really suit its own political, diplomatic, military, and economic agendas,” said Gallagher. “The ICC, in theory, is a place that could challenge the U.S. in its superpower interpretation of international law. … And so what we’ve seen over the last 25 years is that the U.S. has tried to maintain a level of control. And it’s succeeded at different points to varying levels.”

U.S. tensions with the ICC escalated after the court launched a widespread probe of crimes committed in Afghanistan, including torture, to which the Trump administration responded by sanctioning former ICC prosecutor Fatou Bensouda and another top prosecutor — the first time the U.S. had ever taken such action against officials of an international body.

Under the Biden administration, relationships with the court have thawed somewhat, and the State Department lifted the sanctions against the ICC officials — even as it reiterated its opposition to the court exercising jurisdiction over nationals of nonparty states.

Following last year’s invasion of Ukraine, the U.S. was one of dozens of countries that pledged support for the ICC’s investigation of war crimes committed by Russian forces. Last December, Congress voted to loosen legislation restricting support for the court, paving the way for U.S. officials to share evidence with ICC prosecutors. Separately, the Biden administration has also cautiously indicated support for Ukrainian officials’ call for a special tribunal to prosecute Russian aggression against Ukraine (which the ICC cannot do because of the very restrictions to its mandate that the U.S. lobbied for in Kampala).

“When you look at the situation of Ukraine, and the significant political support that that accountability effort has garnered domestically, it’s quite stunning,” said Gallagher. “The fact that you had Republican members of Congress traveling to The Hague and meeting with the prosecutor … it would be unthinkable when many of the same members of Congress were supporting sanctions against the ICC just two years ago.”

“There is a shift, but it’s limited to Ukraine, which calls into question selective justice and whether the rule of law is really what the United States is about here, or whether it’s about using the court to pursue foreign policy agendas,” Gallagher added, referring to the legislative changes last year, which specifically enabled U.S. support for the ICC’s Ukraine probe.

“Those kinds of limitations demonstrate that when it comes to the U.S. being held to the same standards, whether it’s Afghanistan, whether it’s U.S. torture, whether it’s Iraq, we’re not going to have that same level of cooperation.”