It’s Time for America to Join the International Criminal Court

This July, U.S. President Joe Biden ordered his government to begin sharing information with the International Criminal Court’s investigation into atrocities committed in Ukraine. It was a surprising decision: the United States is not a member of the ICC, and for months the U.S. Department of Defense resisted the idea of assisting this ICC investigation, concerned about treading on a slippery slope that could one day lead to prosecutions of U.S. military and intelligence personnel. But both the White House and Congress appear to have set the Pentagon’s concerns aside. In August, with Biden’s support, Congress passed an appropriations bill authorizing the government to share U.S. intelligence on the war in Ukraine with ICC prosecutors.

In one sense, this shift is a positive development for the court, which needs all the help it can get. In March, the ICC issued an arrest warrant for Russian President Vladimir Putin; the path from that to putting him on trial is full of obstacles. But in another sense, Washington’s moves may set the court back as different standards of justice come to light.

Going back decades, the official U.S. position has been that the ICC does not have jurisdiction over the nationals of nonmembers such as Israel, Russia, and the United States itself. The ICC has tried to investigate U.S. actions in Afghanistan, an ICC member state, and the United States has always resisted such scrutiny on principle. But if Washington helps the ICC build evidence in cases against Russians for their actions in Ukraine—a country that has formally accepted the ICC’s jurisdiction—then it is suggesting this principle does not apply.

Such open hypocrisy undermines the legitimacy and effectiveness of a court that already struggles to prove to the world that it can apply justice fairly and achieve real outcomes. The ICC needs help in compiling evidence about abuses in Ukraine. But the sad truth is that as long as the United States remains outside the ICC, the desperately needed help the country is providing with regard to Ukraine could also damage the court’s reputation and greater aims.

Even if Biden and Congress have the best intentions, they also have dismantled the clearest arguments the United States ever had for not joining the court and for claiming that U.S. forces cannot be prosecuted in The Hague. Perhaps surprisingly, most Americans, in fact, support the United States joining the ICC. Russia’s war in Ukraine has only made clearer the contradictions in U.S. policy, and it is time for the United States to finally join the court.

HAVING IT BOTH WAYS

In 1998, 120 countries adopted the Rome Statute establishing the ICC, a multinational body tasked with investigating and prosecuting individuals accused of atrocities—notably war crimes, crimes against humanity, and genocide. The United States helped draft the treaty, and President Bill Clinton signed it in 2000. But the United States never became a full member. The U.S. Senate did not ratify the Rome Statute—nor did most people expect it to.

By signing the Rome Statute without it being likely that Congress would ratify it, Clinton apparently wanted the United States to have its cake and eat it, too. As a signatory, Washington could, according to the ICC’s rules, continue to have a seat at the table in future negotiations about the court’s jurisdiction. Clinton’s successors, Presidents George W. Bush, Barack Obama, and Donald Trump, then took every opportunity to shield U.S. military and intelligence professionals from ICC scrutiny, particularly for crimes allegedly committed on territories over which the ICC has jurisdiction.

In 2002, Bush “unsigned” the Rome Statute, telling the international community that the ICC did not have jurisdiction over the United States. After launching the “war on terror,” he also worried that allies could hand over U.S. personnel to the ICC, and he conditioned many offers of aid on “bilateral immunity agreements” that shielded U.S. military and intelligence personnel from potential arrest and transfer to the ICC. That did not stop the ICC from launching a preliminary examination in 2006 into suspected war crimes and crimes against humanity in Afghanistan, including possible torture committed by U.S. personnel. Afghanistan is an ICC member, and the court’s jurisdiction relies more on where alleged abuses occurred than on who committed them.

A FEINT TOWARD JUSTICE

Obama rewrote Bush’s playbook slightly, providing the ICC diplomatic and logistical support for select investigations. But he continued to reject the possibility of ICC investigations into U.S. service members. Because Clinton had signed the Rome Statute, the Obama administration participated in a 2010 review conference to consider amendments to the treaty. That conference added a fourth international crime to the list the ICC could prosecute: aggression, or “the use of armed force by a State against the sovereignty, integrity or independence of another State.”

The principle of nonaggression is foundational to the rules-based international order. Yet it has been challenged again and again, including when powerful countries such as the United States, Russia, and China have threatened, and in some cases committed, aggression. At the 2010 conference, however, the U.S. delegation successfully lobbied for an important distinction: that, in prosecuting aggression, the ICC would not have jurisdiction over the nationals of nonmember states. This apparent win for the United States was a loss for the ICC.

When Trump took office in 2017, he went to even more extreme lengths to shield U.S. nationals as well as those of Israel, a key U.S. ally. After the ICC expanded its preliminary examinations of suspected crimes in Afghanistan and in the Palestinian territories into full investigations, in 2020 Trump put economic sanctions on the ICC’s chief prosecutor, Fatou Bensouda, and her deputy, Phakiso Mochochoko. Trump threatened to do the same to any individuals or organizations that helped the ICC in these investigations.

DOUBLE JEOPARDY

Facing international pressure, in April 2021, Biden reversed Trump’s sanctions. But U.S. Secretary of State Antony Blinken reiterated that the ICC does not have jurisdiction over U.S. or Israeli forces acting anywhere. Perhaps trying to gain the favor—and aid—of the United States for the ICC’s work, the court’s chief prosecutor, Karim Khan, announced in September 2021 that he would deprioritize the investigations into U.S. personnel in Afghanistan.

Now, however, by supporting the ICC’s investigations against Russia for its acts in Ukraine, the White House and Congress have said the quiet part out loud: the United States believes the ICC does, indeed, have jurisdiction over acts committed by nonmember-state forces—just not over U.S. forces and the forces of its select allies such as Israel. If the United States held Russia to the standard to which it holds itself, it would have to reject the ICC’s claim of jurisdiction over Russians in Ukraine, and the Russian military would enjoy impunity for its serious crimes. But the United States has made an exception for its rival. This is a huge problem because it makes the United States’ double standard explicit.

Such double standards corrode the very principle of an international rule of law. And it particularly undermines the ICC, which has been beleaguered since its inception by accusations of bias. The ICC’s first set of charges—but likely not its last—against Putin concern the unlawful transfer of hundreds of Ukrainian children from Ukraine to Russia. Putin, who is accused alongside another Russian official involved in the transfer, Maria Lvova-Belova, is the fourth sitting head of state that the ICC has formally accused of serious crimes.

Russian propagandists are degrading the court’s efficacy by weaponizing the U.S. double standard.

Putin is clearly worried: his government has put a number of ICC officials, including Chief Prosecutor Khan, on a wanted list. And this past August, he had to strike an agreement with South African President Cyril Ramaphosa not to attend a meeting of the BRICS states (Brazil, Russia, India, China, and South Africa) hosted in South Africa; South Africa is an ICC member, and if Putin traveled there, Ramaphosa would have been obligated to hand him over to the court.

Russian propagandists, however, are already degrading the court’s efficacy by weaponizing the United States’ double standard. They argue that behind the West’s principled rhetoric lies a purely selfish wish to protect its interests and hurt the interests of its adversaries. The West, that argument goes, is no better than Russia and must be resisted at all costs.

JOIN THE CLUB

In the coming weeks and months, the ICC may pursue further charges against Putin, Russian soldiers, and Russian intelligence operatives. Intelligence sharing between Washington and The Hague will improve the chances of successful trials. U.S. intelligence agencies have already reportedly collected evidence of Russian plans to target civilian infrastructure, in addition to evidence concerning the deportation and transfer of children.

None of this is to say that the United States cannot help the ICC without formally joining the court. It can. But the long-standing fear that joining the ICC would expose U.S. citizens to unfair prosecution is likely a boogeyman: according to the court’s “complementarity” rule, if a country undertakes genuine investigations into its own personnel and, where appropriate, prosecutes offenders, the ICC, which is a court of last resort, will not have jurisdiction over their citizens. The ICC has upheld its side of this principle in the past, withdrawing from Colombia in 2021 and proving its promise to defer to national governments that conduct their own proceedings.

Well beyond Ukraine, the United States can better promote democratic values such as accountability and human rights as an ICC member than as a nonmember. The United States simply does not like to defer to supranational bodies unless it is in the driver’s seat. But in the case of the ICC, this notion has now come to its limit. The “law for thee but not for me” that the United States wishes to apply to Russia is simply not tenable—legally, politically, or morally.

Putin may not have his day in court. For a trial to occur, Putin would need to be arrested and transferred to The Hague. Nonetheless, the charges against him hold important symbolic value. Even if Putin is never apprehended, he will live as a fugitive of the law and be a pariah on the world stage. By answering Putin’s illegal conduct with a legal process, the international community is attempting to reaffirm its commitment to the rule of law and to distinguish itself from Putin, who so clearly despises it. To do that successfully, however, the United States must first recognize that the rules it applies to the world apply to itself, too.