Biden administration examines ICC policy on alleged Russian war crimes in Ukraine

For more than 20 years, the Democratic and Republican administrations have agreed on one thing about the International Criminal Court: the Hague-based tribunal does not have to investigate or prosecute US forces for serious crimes, whether whether in Afghanistan, Iraq or any future conflict, because the United States never ratified the treaty establishing it.

But in recent weeks, officials in US President Joe Biden’s administration have openly encouraged investigations, including by the ICC, into reports of atrocities committed by Russian forces in Ukraine, even though Russia, like the United States, is also not a signatory to the 1998 convention. Rome Statute, the treaty that established the World Criminal Court.

The Russian invasion of Ukraine has confronted US policymakers with a thorny conundrum: how can they support an international prosecutor with the mandate and the will to investigate possible Russian war crimes? without undermining their own efforts to protect Americans from past or future lawsuits?

For more than 20 years, the Democratic and Republican administrations have agreed on one thing about the International Criminal Court: the Hague-based tribunal does not have to investigate or prosecute US forces for serious crimes, whether whether in Afghanistan, Iraq or any future conflict, because the United States never ratified the treaty establishing it.

But in recent weeks, officials in US President Joe Biden’s administration have openly encouraged investigations, including by the ICC, into reports of atrocities committed by Russian forces in Ukraine, even though Russia, like the United States, is also not a signatory to the 1998 convention. Rome Statute, the treaty that established the World Criminal Court.

The Russian invasion of Ukraine has confronted US policymakers with a thorny conundrum: how can they support an international prosecutor with the mandate and the will to investigate possible Russian war crimes? without undermining their own efforts to protect Americans from past or future lawsuits?

The Biden administration began an internal review of its policy on the International Criminal Court after its chief prosecutor, Karim Khan, announcement only days after the beginning of the Russian invasion that he opened an investigation. This review, which is ongoing and builds on an earlier review of ICC policy, seeks to determine whether to translate US rhetorical support for an ICC investigation in Ukraine into broader material support. It also aims to resolve the inherent contradiction between its approach to Afghanistan and Ukraine.

Ukraine is not a party to the ICC, but in 2014 kyiv invited the court to open an open investigation into an earlier phase of the Russia-Ukraine conflict. A group of 39 ICC member states, led by Lithuania, has also formally requested an investigation by the prosecutor.

The Biden administration welcomed “Khan’s announcement to investigate this situation, particularly his focus on preserving evidence of alleged atrocities,” a State Department spokesperson said. But the official, who spoke on condition of anonymity, also said the United States appreciated the prosecutor’s commitment to defer to the courts’ longstanding practice of leaving domestic courts, in in this case Ukraine, take the first decision to prosecute alleged perpetrators of serious crimes. .

Since the start of its invasion nearly three weeks ago, Russia has targeted Ukrainian schools, hospitals and residential areas; bombed humanitarian corridors; and used prohibited ammunition such as cluster bombs. Thousands of Ukrainian civilians have already been killed by Russian strikes, with more than 2,000 dead in the southern city of Mariupol alone.

Human rights advocates and experts say they don’t expect the Biden administration to officially reverse its position and publicly recognize the court’s legal jurisdiction over non-state perpetrators of serious crimes, whether Russian or American. But they remain hopeful that Washington can find ways to help with the investigation, whether through intelligence, witness protection or other means.

“While … we are not members of the criminal court, we have always supported the criminal court taking action when action is needed,” US Ambassador to the United Nations Linda Thomas said recently. Greenfield. Recount the BBC.

Outside observers say Washington has tried to strike a delicate balance between promoting war crimes investigations in Ukraine while limiting the exposure of US service members in the future. But the policy risks exposing the United States to accusations of double standards.

“I don’t think the United States is looking to completely change its policy on the ICC, but look, I’m not going to criticize that right now,” said Sarah Yager, director of Human Rights Watch in Washington. “Biden is doing the right thing by supporting this Ukraine investigation.”

The United States’ relationship with the Court has always been delicate, ranging from outright hostility to active support. President Bill Clinton signed the Rome Statute during his last days in office, but he never submitted it to Congress for ratification. President George W. Bush moved quickly to withdraw Washington’s support for the treaty and mounted a diplomatic campaign to undermine the tribunal by attempting to arm countries to grant Americans immunity from prosecution. Bush later partially reversed course, abstaining on a UN Security Council resolution calling on the tribunal to prosecute Sudanese leaders for war crimes, crimes against humanity and genocide.

Under President Barack Obama, the United States significantly intensified its cooperation by drafting a Security Council resolution authorizing an ICC investigation into crimes in Libya. The Obama administration also helped deliver Bosco Ntaganda, a former rebel leader and Congolese army general, to The Hague. Congress also passed legislation creating a multi-million dollar rewards program for information leading to the arrest of individuals indicted by the ICC.

Under the Trump administration, then-Secretary of State Mike Pompeo launched a vigorous assault on what he called a “kangaroo court” that “continues to target Americans,” announcing the imposition of sanctions against the chief prosecutor at the time, Fatou Bensouda, and her first deputy, Phakiso Mochochoko. This decision follows the announcement by the prosecutor of his intention to open investigations into possible war crimes committed by American soldiers in Afghanistan, as well as Israeli and Palestinian fighters.

The Biden administration has gradually ramped up its support for the ICC, starting with a decision last april to lift these sanctions against Bensouda and Mochochoko. In December, the United States sent an observer to the annual meeting of the ICC Meet signatories to the Rome Statute. And during UN Security Council debates, US diplomats have underscored Washington’s support for prosecutions in Libya and Darfur, where the 15-nation council has authorized investigations.

But Washington has been reluctant to support ICC investigations into atrocities committed by nationals of countries that have never joined the ICC. For example, the United States has remained largely silent on the ICC investigation into Georgia, where Russian forces supported separatist groups in the separatist regions of Abkhazia and South Ossetia, according to lawyers for the Court.

More recently, the court received a boost from Senator Lindsey Graham, who co-sponsored a Senate resolution backing an ICC investigation into serious crimes in Ukraine. “It’s a proper exercise of jurisdiction, that’s what the court was created for, because there is no place outside of this court, in my opinion, to hold Putin and those who follow his orders Responsible”, Graham noted.

But the US support comes with a critical caveat.

“The United States is not a state party to the Rome Statute and we remain concerned about the assertion of ICC jurisdiction in certain circumstances,” the State Department spokesperson added Monday in response. to the questions. “But we recognize the significant role the ICC can play in promoting accountability for atrocities, and have supported and will continue to support ICC efforts in some cases.

Criminal justice experts say the conflict in Ukraine has provided an opportunity to change that position. “Whether quietly or out loud, the US government should accept that this oppositional position cannot be reconciled with its interests in upholding justice,” wrote Adam Keith, a former US official with the Office of Global Criminal. Justice who is currently Director of Accountability at Human Rights First, in just security. “This case should prompt the United States to finally set aside its idiosyncratic view of the ICC’s jurisdiction, a view that will otherwise prevent it from embracing the court’s work in Ukraine.

Even before the current crisis, the State Department helped Ukrainian prosecutors develop the capacity to prosecute perpetrators of war crimes and crimes against humanity. The Prosecutor General of Ukraine, Iryna Venediktova, has pledged to prosecute these crimes. Since Russia invaded Ukraine, a proliferation entities have sprung up to hold Moscow to account. The United Nations Human Rights Council has established a commission of inquiry to investigate rights violations, and the Organization for Security and Cooperation in Europe has set up its own investigative inquiry.

Former British Prime Minister Gordon Brown and a group of academics proposed to create a special court, modeled on the Nuremberg trials of Nazi officials at the end of World War II, to prosecute Russians for the crime of aggression in Ukraine. In New York, there was talk of creating a hybrid court, made up of Ukrainian and international jurists, to prosecute crimes of aggression. GermanyPoland and other countries have opened their own investigations, raising the possibility of national prosecutions beyond the Ukrainian border.

But whether this wave of investigations will result in prosecutions of Russian nationals — or Russian President Vladimir Putin himself — remains far from certain.

“I would say that I am cautiously optimistic; it’s going to be difficult to bring Putin or other senior ministers before an international tribunal,” said Clint Williamson, a former US ambassador-at-large for war crimes who leads a US-funded program aimed at strengthen Ukraine’s ability to prosecute serious crimes.

But even charges in other courts or Interpol red notices can make life difficult for Russian officials, he said.

“Even if you don’t have a realistic prospect of putting them in the dock at the ICC or some other international tribunal, you can still make them outcasts if they are indicted.”

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