Biden must overrule the Pentagon and disclose Russia’s war crimes

The International Criminal Court’s decision last Friday to issue arrest warrants for President Vladimir Putin and one other high-ranking Russian official for committing war crimes in Ukraine is a milestone in international justice. The move makes it even more imperative for the United States to fully support the court’s investigation.

Yet the Defense Department is reportedly currently blocking the sharing of crucial information gathered by American intelligence agencies with the court. This is despite bipartisan support in Congress and agreement by other U.S. agencies to do so. Its resistance is based on ill-founded fears about the court’s threat to American troops and undermines U.S. commitment to international justice. President Biden must overrule the Pentagon and begin sharing this evidence.

It is not surprising that the Department of Defense is resisting these efforts. The fear of members of its armed forces potentially being tried by the court has strained the relationship between the U.S. and the ICC from its inception. It joined just six other countries in voting against its creation in 1998 and the 2000 Foreign Relations Authorization Act prohibited the U.S. from giving any financial support to the court or extraditing any U.S. citizen to a country that might surrender them to it.

Following 9/11, with the U.S. engaged in a global war on terrorism, the Bush administration pressured over 100 states to sign bilateral immunity agreements, requiring them to not surrender U.S. nationals to the court and threatening to cut off economic aid if they did not. The 2002 American Servicemembers Protection Act prohibited U.S. cooperation with the court and authorized military force to liberate any U.S. nationals held by it.

The relationship between the U.S. and the court improved somewhat during the Obama administration. The U.S. even played a direct role in the arrest and transfer of two fugitives to the Hague to stand trial. The fear of U.S. troops potentially being held accountable in an international court, however, never went away, and the Obama administration warned the court not to investigate U.S. actions in Afghanistan.

When the court’s prosecutor, Fatou Bensouda, formerly requested in 2017 that a case be opened on crimes committed in Afghanistan, including by the CIA and U.S. armed forces, the reaction was fierce. The Trump administration revoked her visa, preventing her from attending meetings at the United Nations, and placed economic sanctions on her and one of her colleagues.

The Biden administration has worked hard to rebuild a fractured relationship between the U.S. and the court, including revoking the travel restrictions and sanctions and laying out a comprehensive plan for increased cooperation. The refusal to share evidence of Russian crimes gathered by its intelligence agencies, however, serves only to continue a history of the U.S. undermining the court. Such evidence would undoubtedly help the court in its investigations and the act of cooperating would demonstrate a real commitment on the part of the U.S. to support the court and international justice broadly.

Moreover, the fear of the court investigating U.S. service members is overblown. Most Status of Forces Agreements provide the U.S. with exclusive criminal jurisdiction over its service members stationed abroad. Countries hosting U.S. troops are unlikely to defy it. The court’s mandate is also to prosecute the gravest international crimes, making investigations into U.S. behavior unlikely. The court ultimately decided to omit crimes committed by U.S. forces from the Afghanistan case, focusing instead on those committed by the Taliban and the Islamic State. The ICC also only takes cases that are not handled appropriately domestically. If the U.S. holds its own forces accountable for war crimes there would be no need for the court to ever intervene.

In a New York Times op-ed last May, President Biden said that the atrocities committed by Russia “make the war in Ukraine a profound moral issue.” It is time for him to make the morally right decision and fully cooperate with the ICC to help bring those responsible for those atrocities accountable. Such a move will not only aid Ukraine but also help restore the US’s role as a global leader in international justice and human rights.

Andrew G. Reiter is an associate professor of politics and international relations at Mount Holyoke College.