Prosecuting Russia for war crimes

Why is the U.S. stalling in its support?

by Alex Hinton

Should the U.S. do everything it can to help hold Russia accountable for its atrocity crimes in Ukraine? As Russian bombs and soldiers wreak havoc on the country, you would think so. The New York Times, however, recently reported that the Pentagon is blocking U.S. efforts to hand over important evidence to the International Criminal Court, or ICC. 

Why? Military leaders fear setting a precedent of cooperation with the ICC that could lead to the court’s indictment of U.S. soldiers down the road, according to the report. 

Given the United States’ strong support of Ukraine, it would seem that helping the ICC’s efforts is the obvious thing to do. This is why most of the Biden administration and other politicians, including even Republican Sen. Lindsey Graham of South Carolina, support doing so. They recognize that cooperating with the ICC in this instance will not put U.S. soldiers at risk — and that the U.S. has a strategic interest and moral obligation to help. 

Since it illegally invaded Ukraine on Feb. 24, 2022, Russia has indiscriminately bombed hospitals and residential buildings, tortured and executed soldiers and civilians, forcibly transferred Ukrainian children and annexed Ukrainian land. 

In international law, many of these crimes fall under the umbrella of what are called atrocity crimes, which include war crimes, crimes against humanity, and genocide. War crimes encompass not just the abuse of combatants such as prisoners of war but also attacks on civilians. Crimes against humanity refer to widespread attacks on civilian populations. Such attacks may reach the threshold of genocide if systematic and carried out with the intent to destroy a group. 

The U.S. is among the many countries that have accused Russia of such crimes. Roughly a month after Russia’s invasion, U.S. Secretary of State Antony J. Blinken announced there is evidence Russia has committed war crimes. President Joe Biden called Russian President Vladimir Putin a “war criminal” — then in April, after the discovery of massacres in Bucha, he said Russian troops are committing acts of genocide and called for a war crimes trial. 

Hewing more closely to strictures of international law, his administration has been more cautious about charges of genocide and crimes against humanity. But on Feb. 18, Vice President Kamala Harris announced: “The United States has formally determined that Russia has committed crimes against humanity.” The perpetrators, she promised, “will be held to account.”  

How can Russian perpetrators be held accountable? First and foremost, they must be tried. To do so, it is crucial to gather a wide range of evidence, including witness testimony and digital evidence such as satellite imagery. Ukraine has reported more than 70,000 Russian crimes. The international community, including the U.S., is assisting this effort. 

Discussion continues about which type of court should use the evidence. Ukrainian courts have already tried Russian soldiers. The European Union agreed to establish a tribunal focused on Russian aggression. 

But there is a need for a court that will have broad powers and international legitimacy. Ideally, this would be done through the establishment of a United Nations-backed tribunal. Because it holds veto power on the U.N. Security Council, however, Russia can block such efforts. 

This is where the ICC — and its tensions with the U.S. — comes in. 

The International Criminal Court was established in 1998 precisely for situations such as this, involving atrocity crimes and crimes of aggression. It is already in operation and so sidesteps some of the Security Council politics. 

Not surprisingly, Ukraine wants the ICC to investigate Russian crimes, which the court began doing soon after the invasion. Last Friday, the ICC issued arrest warrants for Putin and a government minister. One might expect the U.S. to assist eagerly in any probe. 

But the Pentagon’s reported hesitation is in line with the long uneasy relationship between the American government and the ICC. The U.S. has, in fact, never joined the court, even though the Clinton administration helped negotiate the Rome Statute that established it and signed the resulting treaty despite reservations about politicized prosecutions. The George W. Bush administration withdrew the United States’ signature while cutting deals and passing legislation to prevent the ICC from prosecuting U.S. citizens amid abuses during the “war on terror.” U.S. troops almost certainly committed atrocity crimes, including torture and executions. 

When the ICC began investigating such possible U.S. crimes in Afghanistan, the Trump administration imposed sanctions on the prosecutor. Her successor, the current chief prosecutor, has dropped those investigations. 

Indeed, given U.S. power and influence, it’s extremely unlikely that cooperation with the ICC will somehow lead to the investigation of American soldiers for their reported crimes. The U.S. is still not a signatory to the ICC, and it already provided limited support for a few prior cases. 

Particularly with the Biden administration prioritizing international human rights, Ukraine is a situation where U.S. strategic interest overlaps with its moral interest. The Pentagon should yield. The U.S. must do everything possible to help the Ukrainian people find justice for Russia’s horrific atrocity crimes. It’s the right thing to do. 

Alex Hinton is distinguished professor of anthropology and the director of the Center for the Study of Genocide and Human Rights at Rutgers University, Newark. @AlexLHinton.