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Why Biden is looking to The Hague to punish Putin

The International Criminal Court has been seen as a U.S. enemy instead of an ally for too long.

The evidence has been swiftly mounting that Russian forces have been carrying out a campaign of terror since they invaded Ukraine by indiscriminately killing civilians and deliberately targeting hospitals, among other atrocities. President Joe Biden has on multiple occasions called his Russian counterpart, Vladimir Putin, a “war criminal.”

If that is the case, though, the place best suited to indict Putin over the wanton destruction Russia has visited upon Ukraine is the agency the U.S. has spent the last two decades either ignoring or actively undermining: the International Criminal Court.

America’s policy toward the ICC has been based almost entirely on hypocritical self-interest.

If you sense a little schadenfreude in my tone, you’re right. Since the ICC was established in 1998, America’s policy toward it has been based almost entirely on hypocritical self-interest. Even as the court has been starved for resources to prosecute crimes against humanity, the U.S. has focused first and foremost on preventing any American from ever being charged at The Hague.

Congress slipped into a 1999 appropriations bill a ban on funding “for use by, or for support of,” the ICC unless the U.S. ratified the Rome Statute, the ICC’s founding document. That same bill also blocked funding for any extradition of an American to a country that would be obliged to “surrender persons to the International Criminal Court” unless the U.S. got a guarantee that the ICC wouldn’t get its hands on said American.

America’s priorities are even clearer in the American Servicemembers’ Protection Act, which blocks almost all other cooperation with the ICC and bans any member of the U.S. military from ever being turned over to The Hague. When it was passed in 2002, the act was framed as necessary to inoculate American troops — who had recently invaded Afghanistan to topple the Taliban — against being subject to the whims of a court whose jurisdiction the U.S. didn’t recognize.

Since then, the ICC has been treated with outright hostility by Republican presidents and, at best, cool indifference by Democrats in the White House. But Putin’s invasion of Ukraine has the Biden administration looking to see how much space the law gives his White House to assist an ICC investigation.

The New York Times reported Monday that a 2010 memo from the Justice Department’s Office of Legal Counsel concluded that there’s a narrow window for possible assistance for the court on a case-by-case basis. The language of the American Servicemembers’ Protection Act allows the U.S. to provide “assistance to international efforts to bring to justice … foreign nationals accused of genocide, war crimes or crimes against humanity.”

That window might be opened wider in the coming weeks. The current situation has some former staunch opponents of the court, such as Sen. Lindsey Graham, R-S.C., changing their tune, The Times reported:

Even as administration lawyers struggle with how much wiggle room the government has as it tries to hold Russia accountable, there are signs of bipartisan interest in Congress in potentially rescinding or modifying those laws so the United States can more broadly help the court.

Last month, the Senate unanimously passed a resolution by Senator Lindsey Graham, Republican of South Carolina, backing any investigation into war crimes committed by Russian forces and proxies. It praised the International Criminal Court and encouraged “member states to petition the I.C.C.” to investigate and prosecute Russian atrocities — as at least 41 nations have done.

The shift is grounded in pragmatism, not any change in ideology. The ICC is the only institution set up to indict and prosecute any Russian deemed to have committed war crimes. Setting up an ad hoc tribunal like those formed to investigate genocide in Rwanda and the former Yugoslavia would require approval from the U.N. Security Council, and Russia has a veto.

But here’s a twist: America’s self-regard, which has to date has led the U.S. to hold the ICC in such contempt, could trigger an even bigger change in the U.S. relationship with international law, which has always been shaky at best. Graham is reportedly working with Sen. Dick Durbin of Illinois, the Democratic chair of the Judiciary Committee, on “what they hope will be fast-track, bipartisan legislation,” The Times reported. Their proposal would expand the War Crimes Act to allow foreign nationals accused of crimes against humanity to be charged and tried in the U.S.

That change, if it were to pass, would open the door to American acceptance of a concept under international law called “universal jurisdiction.” Under this idea, there are some crimes so heinous that any state can prosecute accused perpetrators. Germany, in particular, has integrated the theory into its domestic law, leading German prosecutors to begin gathering evidence for a potential war crimes case.

In my dream world, the Biden administration would endorse bringing the U.S. under the ICC’s jurisdiction and finally submit the Rome Statute to Congress for ratification.

So far, it’s a concept that has been more or less rejected by the U.S. Supreme Court when it comes to cases that don’t “touch and concern the territory of the United States.” But if Republicans are willing to pass legislation that says otherwise, more power to them.

In my dream world, the Biden administration would endorse bringing the U.S. under the ICC’s jurisdiction and finally submit the Rome Statute to Congress for ratification. As it stands, the idea that America should be above the system that would be used to punish Russia undercuts the court’s authority.

But there’s no time to wait around for Congress to act. In the meantime, the Biden administration can and should do everything possible under current law to aid in the ICC’s investigation. The odds are slim that Putin will ever stand before the ICC to face his crimes in Ukraine. But on the off chance that he does, it will be in America’s best interest to make sure the court’s prosecutors have the best case possible awaiting him.