Washington can either save its imperialist projects or its moral image – but not both
The Pentagon has blocked attempts by the federal government to share alleged Russian war crimes in Ukraine with the International Criminal Court (ICC) in The Hague, Netherlands, According to a March 8 report by the New York Times.
The rationale behind this decision, according to the paper, is that “American military leaders oppose helping the court investigate Russians because they fear setting a precedent that might help pave the way for it to prosecute Americans.” This has now spawned an intra-agency battle within the administration of President Joe Biden over what’s right and wrong.
According to the NYT and officials they spoke to, “the rest of the administration, including intelligence agencies and the State and Justice Departments, favors giving the evidence to the court.” President Biden has yet to make a decision as to whether the US will stick to its commitment to help the European initiative to prosecute alleged Russian war criminals or avoid opening that can of worms altogether.
The National Security Council reportedly cobbled together a cabinet-level “principals committee” to discuss the matter on February 3 but, according to officials quoted by the NYT, Defense Secretary Lloyd Austin was the dissenter. He fears that his own men could one day be tried at The Hague should American adventurism once more rear its ugly head. Even past events such as the invasion of Iraq, or current illegal operations like the occupation of Syria and drone bombings in Pakistan, could lead to ICC prosecutions of Americans.
The United States has long had a strange relationship with the ICC. Set up under the 1998 Rome Statute to investigate allegations of war crimes, genocide and crimes against humanity, the Court has been a stage for events in Rwanda and the former Yugoslavia. While the US facilitated negotiations leading to the Rome Statute, it was only one of seven countries – along with China, Iraq, Israel, Libya, Qatar, and Yemen – that voted against it.
President Bill Clinton did sign the statute in 2000 but did not submit it to the US Senate for ratification until further details could be learned about the functions of the Court. After reaching 60 ratification votes in 2002, President George W. Bush informed the United Nations that the United States formally withdrew its signature from the Rome Statute just after his invasion of Afghanistan and before his invasion of Iraq. President Donald Trump went as far as to sanction individual members of the Court via executive order over their investigations into alleged American war crimes in Afghanistan. However, President Biden has since reversed those sanctions and the charges were dropped.
The US military and associated think tanks have long leveled criticisms against the Court for lacking jury trials and being incompatible with the US Constitution. For example, the conservative Heritage Foundation remarked that “United States participation in the ICC treaty regime would also be unconstitutional because it would allow the trial of US citizens for crimes committed on US soil, which are otherwise entirely within the judicial power of the United States. The Supreme Court has long held that only the courts of the United States, as established under the Constitution, can try such offenses.”
Despite this complicated and largely averse relationship, the US has grown to recognize the reality of the ICC and has taken some steps to cooperate with it in the past, notably under President Barack Obama. In December 2022, Congress enacted a rare provision related to the Court that allows the US government to help with “investigations and prosecutions of foreign nationals related to the situation in Ukraine, including to support victims and witnesses” within its larger appropriations bill.
This essentially created a legal, and perhaps moral exception, where the US could have its cake and eat it too with regard to the ICC. When the Court issued an arrest warrant for Russian President Vladimir Putin for alleged “war crimes” last week, Biden himself reacted positively, saying, “I think it’s justified” and that while the US doesn’t recognize the ICC either, “I think it makes a very strong point.” For its part, Moscow has denied these allegations and said that the Court doesn’t hold jurisdiction in Russia since it isn’t a party to the Rome Statute.
Nonetheless, as Secretary Austin must be aware, this same process being leveled against Russia could easily be used against US soldiers one day given the country’s exhaustive list of foreign invasions and extraordinarily well-documented history of war crimes, many of which were revealed by WikiLeaks.
Whichever way President Biden moves will have far-reaching consequences for America’s broader image among allies and adversaries alike. If he sides with the Pentagon, the US government will be seen as the ultimate hypocrite – one that casts judgment on Russia for its alleged wrongdoings while working double time to save its own skin when it comes to the worst imaginable crimes. But if he sides with the rest of his administration, this may lead to the prosecution of American soldiers one day in the future. And that will have a serious impact on the ability of Uncle Sam to continue its forever wars with impunity.
