A State Department official told Congress the Pentagon is stopping the US government from working with the International Criminal Court (ICC) to prosecute Russians, including President Vladimir Putin, over the invasion of Ukraine.
Several lawmakers on the Senate Foreign Relations Committee pressed Beth Van Schaack, ambassador-at-large for Global Criminal Justice, to name the Department of Defense as holding up cooperation with the ICC. Committee chairman Sen. Bob Menendez (D-NJ) said the State Department “has encouraged working with the ICC to bring Putin to justice,” but added ”It is no secret that Department of Defense is the holdup.”
Sen. Chris Van Hollen (D-MD) also asserted the Pentagon was the issue and invited Van Schaack to affirm his statement. “The Defense Department is clearly dragging their feet,” he said, asking “It’s just a yes or no, right? The Defense Department is not cooperating?”
The ambassador replied, “Yes,” going on to state that the DoD has withheld helpful information. “There is a range of very actionable information that [the US has] been able to collect that might be very helpful to a justice process anywhere,” Van Schaack said, However, without the DoD’s consent, she noted “we can’t share it with the ICC.”
Menendez said the Pentagon’s refusal to aid the State Department was unacceptable, as the military “does not get to pick and choose which laws it will obey.” He argued the US government “needs to provide full support for investigations that could lead to holding Russian officials accountable.”
The chairman requested that a Department of Defense official attend the hearing, but the agency was unrepresented on Wednesday.
In March, the New York Times reported that the DoD was resisting a White House plan to use the ICC to target Russians, citing the precedent it could set for American military personnel.
Washington has a history of refusing to cooperate with the Hague-based international court. In 2002, Congress passed the “Hague Invasion Act,” which empowered the president to use “all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.”
During the Donald Trump administration, the White House even sanctioned ICC officials investigating alleged US and Israeli war crimes, though Congress later amended the law to allow Washington to cooperate with the Hague in cases involving Russians.
At Wednesday’s committee hearing, Van Schaack stressed that only Russians should be held accountable for war crimes. “I’ll say at the outset that in my role as the lead diplomat in the international justice space, I would work tirelessly to ensure that no US personnel will be brought before the ICC,” she said. “I do not think that that is an acute risk at this time.”
The Volodymyr Zelensky administration has repeatedly demanded that Russian officials be tried for war crimes as a condition for ending the conflict. In March, the ICC issued an arrest warrant for Russian President Vladimir Putin and another official on allegations they aided in the kidnapping of Ukrainian children. Shortly after, Kiev said the investigation into Putin made talks with Moscow impossible.
On March 27, Van Schaack said the White House favored international mechanisms separate from the ICC to punish Russian officials for the “crime of aggression” in Ukraine. “At this critical moment in history, I am pleased to announce that the United States supports the development of an internationalized tribunal dedicated to prosecuting the crime of aggression against Ukraine,” she said, adding that “there are compelling arguments for why” the crime of aggression “must be prosecuted alongside” other offenses under investigation by the ICC.
