President Joe Biden has ordered his administration to begin sharing evidence of alleged Russian war crimes committed in Ukraine with the International Criminal Court (ICC), based in the Hague, a US official said on Wednesday. According to the New York Times, the White House began notifying lawmakers of this change in policy on Tuesday.
In contrast to the National Security Council and the State Department, the Pentagon had long opposed cooperation with the ICC. After the ICC issued an arrest warrant for Russian President Vladimir Putin in March, the Defense Department blocked Washington from sharing information with the court.
The military intervened over concerns that doing so might set a precedent allowing US troops to be prosecuted for similar actions. Lawmakers in both parties sharply criticized the DOD for making this decision.
During the Donald Trump administration, the US sanctioned ICC officials for attempting to investigate American war crimes in Afghanistan. Biden lifted those sanctions but denounced the court for investigating both US war crimes in Afghanistan and the Israeli apartheid regime’s crimes against Palestinians, including large-scale massacres in the Gaza Strip.
Reports suggest that the reason for the about face is that Biden has taken a side in the debate, siding with those who favor working with the ICC. A US official, speaking with the Guardian, said “I can confirm that the US will share evidence with the ICC.”
A National Security Council spokesperson elaborated that, since Putin launched his invasion last year, Biden “has been clear: there needs to be accountability for the perpetrators and enablers of war crimes and atrocities in Ukraine.” The spokesperson continued, regarding “the ICC specifically, we are not going to discuss the specifics on any cooperation, which is consistent with the court’s practice of treating requests for cooperation in a confidential manner.”
Moreover, it was added that the White House is backing a range of investigations into alleged Russian war crimes carried out in Ukraine including those conducted by “the Office of the Ukraine Prosecutor General, the Joint Investigative Team through Eurojust, the United Nations Human Rights Monitoring Mission, the Expert Missions established under the OSCE’s ‘Moscow Mechanism.’”
According to Reuters, this spokesperson also explained that Washington has “previously sent teams of international investigators and prosecutors to help Ukraine’s Office of the Prosecutor General in preparing war crimes cases.”
As with the United States, Russia is not a member of the ICC and does not recognize the court. In 2002, President George W. Bush signed into law the American Servicemembers’ Protection Act, also known as the “Hague Invasion Act.” The bipartisan legislation went as far as to authorize military action against the Netherlands – a fellow founding member of NATO – to prevent US officials and military personnel accused of war crimes from facing accountability before an international tribunal.
Moscow has issued an arrest warrant for the ICC prosecutor that issued warrants for Putin as well as Maria Alekseyevna Lvova-Belova, Russia’s commissioner for children’s rights, earlier this year for allegedly kidnapping Ukrainian children.
This shift in policy comes shortly after the White House began providing Kiev with cluster bombs, a controversial munition banned by over 100 countries. Cluster bombs scatter bomblets or submunitions across target areas but many of these do not detonate on impact. This has led to countless civilian deaths years and decades after conflicts where they are used have ended. Last February, the administration declared that the use of cluster bombs in Ukraine is a “war crime.”
Human Rights Watch has said there have been numerous cases of both Moscow and Kiev using cluster bombs in civilian areas. Moscow recently accused Ukrainian forces of killing a Russian journalist using these US provided weapons.
