U.S. Evidence Sharing with the ICC

The U.S. Supreme Court often reminds our government that it must speak with one voice in the world. This is no less true within an administration than it is across the federal branches or with respect to the community of States. From 1793 when George Washington resolved disputes between Thomas Jefferson and Alexander Hamilton over American neutrality in the war between France and Britain to 2003 when George Bush resolved disputes between Colin Powell and Donald Rumsfeld over the invasion of Iraq, cabinet secretaries have disagreed over U.S. foreign policy. This is healthy; it informs the president of all angles in a situation and focuses decision-making.

But decisions must be made. Ultimately, it is the president’s job to make them. President Biden now sits at an impasse between his Secretaries of State and Defense over sharing evidence the United States has in its possession of Russian atrocities in Ukraine with the International Criminal Court (ICC) in The Hague. Despite the Pentagon’s objection, he should share that evidence.

U.S. Cooperation with the ICC

Although Congress recently made bipartisan legislative adjustments authorizing the United States to engage with the ICC on war crimes committed by Russian soldiers in Ukraine, the Pentagon has drawn a line in the sand it is unwilling to cross. As the ICC’s investigation of Russian war crimes gains steam, it needs credible and admissible evidence to mount prosecutions. A not insignificant source of such evidence is the intelligence community of the U.S. government, gleaned not only from human and signals intelligence but also sophisticated satellite imagery and unmatched forensic capabilities. To the consternation of the State Department and other units of government, the Defense Department has staked out a position blocking transfer of such evidence to the Court. Although supportive of Ukraine in its war against Russia, on this question, DoD stands alone – but it stands firm.

At the core of its reticence lies a perception of the ICC as a threat to the Pentagon’s ability to deploy globally to protect the national security interests of the United States. In the wake of the ICC’s unfruitful preliminary examination into U.S. conduct during and after the war in Afghanistan, Secretary of Defense Lloyd Austin remains wary of engaging with them at any level lest a precedent be set that the ICC’s prosecutor can investigate and bring cases against the troops of non-member States against their consent. Of course, it is the Defense Department’s duty to protect both its forces and our country.

Misplaced Concern and Demands of Justice

However, in this instance, such concern is overstated. The ICC is an international justice mechanism with a highly constrained, back-up jurisdictional reach. The court’s “rules of engagement” under the Rome Statute cabin its jurisdiction to handling only genocide, war crimes, crimes against humanity, and aggression in limited instances and only where such States are unwilling or unable to prosecute in their own courts. In rare instances, the Court’s jurisdiction may be triggered voluntarily by a non-member State. This was the case with Ukraine when Kyiv requested the Court to investigate Russian conduct in the aftermath of Moscow’s occupation and annexation of Crimea in 2015. Because that preliminary examination had not been closed by the time Russian forces invaded Ukraine in 2022, the prosecutor was able to convert the Ukraine situation into an investigation proper. The happenstance of the Court’s ability to even engage on the Russia-Ukraine War is due entirely to a set of circumstances almost impossible to replicate.

Alongside Russian targeting of civilians and infrastructure, the particularly grievous evidence in our possession proving that decisions were made by Russian officials leading to the abduction and internment of 6,000 Ukrainian children to “Russify” them, needs to come to the Court. Forcible transfer of children is not only a war crime but a crime of genocide under both the 1948 Genocide Convention as well as the Rome Statute. In the case of the former, if not the latter, the United States is legally obligated to prevent and punish genocide. Sharing this material evidence with the ICC to bring such perpetrators to justice meets that obligation.

Unfortunately, the Defense Department’s institutional position on this matter places it squarely against delivering international criminal justice. On balance, that stance grants more misplaced weight to an unlikely distant worry than to atrocities being committed today against innocent civilians. Although the Pentagon is entitled to its position, the president is entitled to his decision. President Biden must now speak with one voice on sharing evidence with the ICC, and that voice should put America squarely on the side of justice.

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Michael Kelly holds the Sen. Allen A. Sekt Endowed Chair in Law at Creighton University School of Law.

Photo credit: U.S. Embassy Kyiv Ukraine

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