Outside the Beltway

Pentagon Opposes Helping Prosecute Russian War Crimes

A wrongheaded if longstanding position.

James Joyner · Thursday, March 9, 2023 · 13 comments

A disturbing report in the NYT from Charlie Savage (“Pentagon Blocks Sharing Evidence of Possible Russian War Crimes With Hague Court“):

The Pentagon is blocking the Biden administration from sharing evidence with the International Criminal Court in The Hague gathered by American intelligence agencies about Russian atrocities in Ukraine, according to current and former officials briefed on the matter.

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. The rest of the administration, including intelligence agencies and the State and Justice Departments, favors giving the evidence to the court, the officials said.

The framing is rather weird, in that “the Pentagon” is part of “the Biden administration” and answers to President Biden. Indeed:

President Biden has yet to resolve the impasse, officials said.

So, it’s not so much that “the Pentagon” is “blocking” anything but that it is a dissenting voice on a policy decision that “the Biden administration” has not yet made.

Regardless, the rationale does not reflect well on the Defense Department. The American military goes to great length to train its personnel and educate its leaders on the law of war and demand ethical leadership. Those are at the profession’s core and drummed into officers, at least, from their days as cadets and midshipmen.

The evidence is said to include details relevant to an investigation the chief prosecutor of the International Criminal Court, Karim Khan, began after Russia’s invasion of Ukraine a year ago. The information reportedly includes material about decisions by Russian officials to deliberately target civilian infrastructure and to abduct thousands of Ukrainian children from occupied territory.

In December, Congress modified longstanding legal restrictions on American help to the court, allowing the United States to assist with its investigations and eventual prosecutions related to the war in Ukraine. But inside the Biden administration, a policy dispute over whether to do so continues to play out behind closed doors.

The United States, as the ostensible primary proponent of the liberal world order, should be enthusiastically backing war crimes trials against Russia, which is not only a strategic competitor but identified in our strategic documents as an acute threat. And Congress, which hasn’t been able to agree on much of anything in a very long time, is not only on the right side here but actually changed the law to allow sharing of this information.

So, what’s the holdup?

Most of the people who described the internal dispute did so on the condition of anonymity to discuss sensitive deliberations.

But Senator Lindsey Graham, Republican of South Carolina, who helped push Congress to ease the restrictions last year on aiding the International Criminal Court, confirmed the parameters of the dispute and blamed the Defense Department for its reluctance.

“D.O.D. opposed the legislative change — it passed overwhelmingly — and they are now trying to undermine the letter and spirit of the law,” Mr. Graham said. “It seems to me that D.O.D. is the problem child here, and the sooner we can get the information into the hands of the I.C.C., the better off the world will be.”

Representatives at the Pentagon, State Department, Justice Department, and the Office of the Director of National Intelligence declined to comment or did not respond to requests for comment.

Adrienne Watson, a spokeswoman for the National Security Council, provided a statement that did not address the Pentagon’s opposition to sharing evidence. But she said the government “supports a range of investigations to identify and hold accountable those who are responsible” for Russian war crimes, including through Ukrainian prosecutors, the United Nations “and the International Criminal Court, among others.”

“Russian forces have been committing war crimes and crimes against humanity in Ukraine, and the Ukrainian people deserve justice,” she said, adding, “We are also working to expose Russia’s atrocities in Ukraine so the world can see what Russian forces are doing.”

While I lost a lot of respect for Graham after his simpering toadyism during the Trump administration, he’s on the side of right here.

But DOD opposes doing the right thing out of a longstanding theoretical posture.

The International Criminal Court was created two decades ago as a standing venue to investigate war crimes, genocide and crimes against humanity under a 1998 treaty called the Rome Statute. In the past, the United Nations Security Council had established ad hoc tribunals to address atrocities in places like the former Yugoslavia and Rwanda.

Many democracies joined the International Criminal Court, including close American allies like Britain. But the United States has long kept its distance, concerned that the tribunal could someday try to prosecute Americans.

Administrations of both parties have also taken the position that the court should not exercise jurisdiction over citizens from a country that is not a party to the treaty, like the United States and Russia — even when the alleged war crimes take place in the territory of a country that did sign onto it, like Ukraine and Afghanistan.

President Bill Clinton signed the Rome Statute in 2000 but, calling it flawed, did not send it to the Senate for ratification. In 2002, President George W. Bush essentially withdrew that signature. Congress, for its part, enacted laws in 1999 and 2002 that limited what support the government could provide the court.

Still, by the end of the Bush administration, the State Department declared that the United States accepted the “reality” of the court and acknowledged that it “enjoys a large body of international support.” And the Obama administration took a step toward helping the court by offering rewards for the capture of fugitive warlords in Africa the court had indicted.

This is not an unfamiliar position for the United States government. We are often not part of international agreements either because of minor carveouts or because it’s really hard to get a Senate supermajority (two-thirds ratification requirement per Article II, Section 2 of the Constitution). We are not part of the UN Convention on the Law of the Sea, which we scrupulously observe, because of longstanding if vague “sovereignty” objections in the Senate, mostly from Republicans. We are not part of the Landmine Treaty, which we otherwise scrupulously observe, because we insist mines are necessary for the Korean DMZ.

Alas, the US objection to the ICC is not entirely theoretical:

In 2017, however, the top prosecutor for the court at the time tried to investigate the torture of terrorism detainees during the Bush administration as part of a larger look at the Afghanistan war. In response, the Trump administration imposed sanctions on court personnel, and Secretary of State Mike Pompeo denounced it as corrupt.

A thaw returned in 2021, when the Biden administration revoked those sanctions and Mr. Khan, newly appointed as prosecutor, dropped the investigation.

There is a, not completely unfounded, sense that our adversaries would try to weaponize the ICC against us. But there’s also a sense that the United States government alone should judge the actions of the United States government.

That’s not an uncommon position for a sovereign state, let alone a superpower. But it also makes it rather difficult to simultaneously champion a liberal world order in which deviation is punished by the international community.

Then Russia invaded Ukraine last year, prompting a bipartisan push to hold President Vladimir V. Putin of Russia and others in his military chain of command to account — and setting off debates inside the administration and in Congress about whether and how to help the court.

In late December, lawmakers enacted two laws aimed at increasing the chances that Russians would be held accountable for war crimes in Ukraine.

One was a stand-alone bill expanding the jurisdiction of American prosecutors to charge foreigners for war crimes committed abroad. The other, a provision about the International Criminal Court embedded in the large appropriations bill Congress passed in late December, received little attention at the time.

But that provision was significant. While the U.S. government remains prohibited from providing funding and certain other aid to the court, Congress created an exception that allows it to assist with “investigations and prosecutions of foreign nationals related to the situation in Ukraine, including to support victims and witnesses.”

But, again, the Defense Department, which has more skin in the game as the arm of our government that fights our wars, is holding firm:

Despite that legal change and Congress’s signal of support, the Pentagon has stood firm that the United States should not help the International Criminal Court investigate Russians for their actions in Ukraine since Russia is not a party to the treaty that established the court.

That resistance has attracted criticism both inside and outside the executive branch. Some legal specialists contend that there is scant benefit to hewing to that position because the rest of the world essentially rejects that interpretation.

They argue that the United States would win more support over a hypothetical attempt to prosecute an American by using a narrower argument: that under the treaty, the court should only be used for countries that lack functioning investigative systems capable of addressing serious international crimes by their citizens, and the United States does not qualify.

John Bellinger, a former top lawyer for the National Security Council and the State Department in the Bush administration, argued that if the court does ever try to prosecute an American, “we will have more allies who agree with the narrower argument than the broader argument.” The Pentagon, he added, should reconsider the potential advantages of helping the court.

“I also think the Department of Defense needs to look at the I.C.C. not purely in defensive terms — how it might screw us — but how can we use the I.C.C., the successor to the Nuremberg tribunals, as a tool to investigate and prosecute Russian war crimes,” Mr. Bellinger added.

Mr. Graham said that the rest of the government had signed off on sharing the evidence and was frustrated by the Pentagon. He noted that he had spoken about the matter with Attorney General Merrick B. Garland, who reiterated his commitment to helping Ukrainian prosecutors pursue Russian war crimes during a visit to Lviv last week.

Pentagon leaders, Mr. Graham said, “have raised their concerns, and they are not illegitimate, but I think on balance what we did in the legislation is the way to go and I want them to honor what we did.”

“We did this with the administration,” he added. “It was a collaborative effort.”

I’m skeptical of Bellinger’s argument but it’s not a novel one. It’s how the Obama administration justified ordering Americans killed in Yemen. While I was queasy about the justification, I accepted it as a reasonable one: due process is not an available option in a failed state.

Further, we do in fact have a reasonably strong record of punishing American servicemembers when they commit war crimes. On the other hand, there are reasonable people who argue that Harry Truman, Lyndon Johnson, Henry Kissinger, George W. Bush, Dick Cheney, and others should have been hauled off to the Hague.

Turning back to the present case, I see little practical downside and considerable legal and moral upside in cooperating with the ICC in its investigation of Russian atrocities. While I’m more than a little skeptical that Vladimir Putin or other senior Russian officials will ever be held accountable—international law is a lot more effective against leaders of weak states—shining a light on their crimes and further rendering them pariahs is a worthwhile goal.