The Pentagon is standing in the way of the Biden administration sharing evidence of Russian war crimes in Ukraine with the International Criminal Court in The Hague, fearing that an investigation would risk setting a precedent that could be used to target US officials in the future.
According to reporting from The New York Times, the Department of Defense is the only part of the administration that does not want to share the evidence. The State Department, Justice Department, and intelligence agencies all favour handing evidence over to the court.
The decision about what to do will ultimatley fall to President Joe Biden, who the Times reported has not yet signalled what he plans to do.
The International Criminal Court has been investigating Russia since close to the beginning of its invasion of Ukraine, and the US reportedly has evidence that Russian officials have deliberately targeted civilian infrastructure and planned to abduct thousands of Ukrainian children.
That evidence could prove critical to the court’s investigation. But the US has long been sceptical of cooperating with the court, which was established in the 1998 to investigate genocides and crimes against humanity, out of fears that it could target Americans for their own crimes. Unlike allies like Great Britain, the US has never joined the Court.
Russia’s aggression in Ukraine, however, seems to have changed the calculation for some. In December, Congress voted to amend restrictions on how the US can help the court to allow it to provide assistance regarding potential crimes in Ukraine.
Sen Lindsey Graham of South Carolina told the Times that he’d like to see the administration turn over the evidence and criticised the Department of Defense’s position.
“DOD 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 DOD is the problem child here, and the sooner we can get the information into the hands of the ICC, the better off the world will be.”
There are also those who believe that the US should turn over its evidence and that US officials should be investigated and prosecuted by the Court if they are suspected of having perpetrated war crimes or crimes against humanity.
For the moment, the US is in a tricky position. Previous presidential administrations have argued that the Court should not have the authority to investigate citizens from countries that have not joined it, a stance that would protect US violators of international law, and, in this case, would protect Russian citizens too given that Russia has also declined to join the Court.
