Almost There: When Will the Biden Administration Support the ICC in Ukraine?

This article was first published on Just Security on March 4, 2023

By Adam Keith

Over the last year, the people of Ukraine have endured Russian war crimes on a staggering scale, from the mass abduction of their children to the wintertime bombing of their heating infrastructure. Ukraine has sought to mobilize the world in pursuit of justice for these atrocities, turning to outside bodies like the International Criminal Court (ICC) to supplement what its own domestic courts can do and hosting high-level gatherings like this weekend’s “United for Justice” conference in Lviv.

The United States, for its part, has vocally championed the importance of accountability in Ukraine. President Biden, Vice President Harris, and Secretary of State Blinken all called for justice in their recent statements that Russian abuses amounted to crimes against humanity. But even though Congress in December loosened the laws that have long restricted U.S. support for the ICC – and did so for the purpose of facilitating U.S. assistance to the ICC’s investigation in Ukraine – the administration still has not lifted the internal policy barriers to supporting that investigation. If the Biden administration believes that “no nation is safe in a world… where crimes against humanity are committed with impunity,” as Harris said last week, senior officials need to make the decision to back the ICC.

The U.S. government is rightly giving technical assistance and political support to Ukraine’s judicial institutions, which have registered more than 65,000 cases of alleged Russian war crimes. But the ICC fills a different role than domestic courts, and it needs backing too. Ukrainian authorities are expected to focus their investigations on mid- and lower-ranking Russian officials; the ICC, with its greater international reach and clearer legal ability to prosecute commanders and senior civilian officials for their role in serious crimes, is focused on those who bear broader responsibility for Russia’s atrocities.

In other contexts, the U.S. government has helped war crimes tribunals by providing leads and evidence that helped them build complex cases. It has also helped locate and apprehend war crimes defendants.

One barrier to such support for the ICC fell away in April 2021, when the Biden administration decided that the Trump-era sanctions on the court’s prosecutor were an “inappropriate and ineffective” response to the ICC’s scrutiny of post-9/11 U.S. torture in Afghanistan, and further reset relations with the court as a new prosecutor took office. U.S. officials had hinted in the weeks after Russia’s February 2022 invasion that they saw obstacles to assisting the ICC’s work in Ukraine, but they later made or signed on to supportive statements that suggested any such hurdles had been surmounted.

Congress gave a strong push in this direction in December when it passed legislation addressing the U.S.-ICC relationship. Historically, Congress has led U.S. skepticism toward the ICC, imposing legal prohibitions that constrained the U.S. relationship with the court and its member states with only limited and complex exceptions. But in the last days of the 2022 session, a bipartisan set of champions led Congress to rewrite portions of two 20-year-old statutes to loosen several of those restrictions, in some cases specifically for the benefit of the ICC’s Ukraine investigation.

Among other things, the revised laws allow ICC officials to meet with potential witnesses relevant to the Ukraine investigation in the United States, rather than requiring traumatized refugees to leave the country to share their evidence. The U.S. government can now fund the court, albeit with restrictions that may or may not prove workable. And it can provide these and other forms of support without waiting until the ICC’s Ukraine investigation produces arrest warrants. Congress should have extended these new forms of support to the ICC’s work around the globe, rather than limiting them to the Ukraine context, but it left no doubt that it intended to eliminate the obstacles to supporting the ICC in Ukraine.

Nonetheless, when pressed over recent months, U.S. officials from multiple departments have told civil society groups that the United States still objects to a basic feature of the ICC: its ability to investigate the acts of individuals from countries that have not accepted the court’s jurisdiction, when those acts take place on the territory of countries that have. That category includes Russians in Ukraine just as it does Americans in Afghanistan, which would suggest that U.S. statements of support for the ICC’s Ukraine investigation – which to date appears to have focused solely on Russians – have lacked any meaning. It also makes the new legal flexibility that Congress provided unusable.

The U.S. government has maintained its objection over the years (though not consistently) because some imagine that it provides a protective argument should U.S. officials face allegations of war crimes in an ICC member state. It does not. The ICC’s judges have repeatedly upheld the court’s ability to prosecute individuals from non-member countries, and even close U.S. allies do not take the U.S. position seriously.

The muddled U.S. view on the Ukraine investigation has costs. As things now stand, the administration will be caught flat-footed and unable to assist when the ICC begins to issue arrest warrants against Ukraine-related defendants and seeks help locating and arresting them. Top U.S. lawyers and diplomats will presumably be hedging their remarks or offering misleading claims of support at Ukraine’s Lviv conference this weekend, or at the conference that the British and Dutch governments are hosting on “practical support to the ICC” next month.

The ICC’s investigation may be the only viable effort to hold accountable certain senior Russian officials for their forces’ atrocities in Ukraine. The only thing that stands in the way of the United States supporting that effort is its misguided position that the ICC should not investigate individuals from non-member states such as Russia. There is no legal impediment to dropping that position, nor any winning policy argument for maintaining it, but the administration has allowed the issue to remain unsettled more than a year into Russia’s full-scale invasion.

Helping the survivors of Russia’s war crimes in Ukraine secure justice is an urgent task, and Congress has opened the door wide for the United States to serve as a partner through all the institutions that Ukraine has mobilized. The Biden administration should finally decide to do so, and members of Congress should hold it to account.