WASHINGTON – The Biden administration is fiercely debating the extent to which the United States can or should support an investigation into Russian atrocities in Ukraine by the International Criminal Court in The Hague, according to officials. familiar with internal discussions.
The Biden team really wants to see President Vladimir V. Putin of Russia and others in his military chain of command. And many are said to view the court – created by a global pact two decades ago as a venue for prosecuting war crimes, crimes against humanity and genocide – most likely to achieve that.
But laws from 1999 and 2002, enacted by lawmakers warn that courts could investigate Americans, limiting the government’s ability to provide assistance. And the United States has long opposed any exercise of court jurisdiction over citizens of the non-treaty countries that created it — like the United States, but also Russia.
The internal debate, described by senior administration officials and others familiar with the matter on condition of anonymity, was shaped somewhat by an undisclosed 2010 memo. earlier of the Attorney General’s Office of the Ministry of Justice. Obtained by The New York Times, the memo explains the scope and limits of allowed cooperation with the court.
The discussions were also marked by the Pentagon’s objections to softening the US stance, even as congressional Republicans, long-time skeptics of the court, signaled openness to finding ways to help bring Russian officials to justice.
For now, officials say, the main focus is on gathering evidence of obvious war crimes that continue to surface — both details about specific killings and intelligence that security advisers have. national security of President Biden, Jake Sullivan, confirmed on sunday indicates a high-level plan to brutalize civilians to subjugate terrorists.
“This is something that was planned,” he say on ABC’s “This Week,” adding, “Make no mistake, the larger problem of large-scale war crimes and atrocities in Ukraine lies at the feet of the Kremlin and at the feet of the Russian president.”
But unresolved considerations about where such intelligence should be distributed explain why administration officials are so vague about where Russia’s war crimes prosecution efforts should focus — right away. Even if proof large scale brutality mounted, prompting Mr. Biden to label Mr. Putin as “war criminal“And to call a”war crimes trial. ”
Mr. Sullivan, was ambiguous, for example, at a news summary last week when a reporter asked if the president envisions such a prosecution going to the International Criminal Court or some other court.
“We have to consult with our allies and partners on what makes the most sense as a mechanism moving forward,” he said. “Clearly, the ICC is a venue where war crimes have been tried in the past, but there have been other examples in other conflicts of other mechanisms being established.”
But establishing other locations presents its own set of obstacles. Among them, while the United Nations Security Council has previously helped set up special international courts to handle conflicts in places like Rwanda and the former Yugoslavia, Russia can veto any any Council resolution seeking to establish a tribunal on Ukraine.
Have reason to doubt that Putin and other senior Kremlin officials responsible for the war could be brought to trial, as long as they remain in power and perform well in Russia. However, war crimes charges, human rights experts say, serve a function of “name and shame” even without trial – and can prevent the defendants’ ability to travel abroad. fox.
Another possibility is that the country’s courts have jurisdiction over war crimes on Ukrainian soil. For example, Germany has laws against war crimes and crimes against humanity worldwide. The prosecutors there said in March that they had begun gathering evidence of deliberate attacks on civilians and civilian infrastructure, and that two former ministers Complaint filed last week asked prosecutors to charge Russian officials.
Ukraine’s prosecutor general has asked for international help in gathering evidence. Attorney General Merrick B. Garland said in recent days that administration officials are working on a multinational effort to support Ukraine’s efforts, while holding discussions with their European counterparts.
However, with Ukraine continuing to come under attack, the capacity of its justice system may be limited. In contrast, the International Criminal Court was created – and it specializes in conducting this type of investigation and prosecution.
Against this backdrop, the Ministry of Foreign Affairs said that the United States “welcomes the fact” that a court has opened an investigation into the war in Ukraine, and that Biden administration officials are considering what the United States can do to help with that.
A set of mostly legal issues. A group of top national security lawyers in the administration has struggled with how to navigate the limits imposed by a pair of laws Congress enacted a generation ago. Those laws limit the aid the U.S. government can provide to the courts, but in many places it’s unclear.
The discussions centered on a 26-page opinion by the Office of Legal Counsel explaining those laws to the executive branch.
Memorandum reviewed types of support that the United States has offered to the courts to try war crimes and genocide in the former Yugoslavia and Rwanda, which has proven crucial to making them work – such as sending dozens of experienced prosecutors Ministry of Justice and contributed more than 500 million USD to cover operating costs.
But a 1999 appropriations law prohibits the government from spending funds to support the International Criminal Court. The memo concludes that Congress prohibits direct donations of money to courts and the donation of physical items, like providing computer systems or building courts — and the law makes no exceptions.
The memo also analyzes a 2002 law, the U.S. Military Protection Act. It prohibits providing the court with other forms of assistance – like sharing intelligence, training its staff or lending personnel. The memorandum concludes that the United States cannot provide general institutional assistance, but can provide such assistance for “specific circumstances.”
Unlike the funding ban, the 2002 law allows “in support of international efforts to bring to justice” a list of offenders from that time, such as Saddam Hussein and Osama bin Laden, along with any any other foreign nationals charged with genocide, war crimes or crimes against humanity.
Even as management lawyers grapple with how much room the government has in trying to hold Russia accountable, there are signs of bipartisan interest in Congress in potentially holding Russia accountable. ability to repeal or amend those laws so that the United States can help the courts more broadly.
Last month, the Senate unanimously passed a solution of Senator Lindsey Graham, Republican of South Carolina, in support of any investigation into war crimes by Russian forces and proxies. It praises the International Criminal Court and encourages “member states to petition the ICC” to investigate and prosecute Russia’s atrocities – as at least 41 countries have done.
Mr. Graham has since worked with Senator Richard J. Durbin of Illinois, the No. 2 Democrat in the Senate, on what they hope will be done quickly, bipartisan legislation in response to the controversy. outrage over events in Ukraine.
Their initial focus was on developing the legislative language to expand the Domestic War Crimes Act to give US courts jurisdiction over such crimes, Mr. Graham said in an interview. of non-citizens abroad.
But Mr. Graham said that the International Criminal Court appeared “to be the only effective place” to investigate Mr. Putin. He said Congress will also “review the laws on the books and see if they need to be changed to ensure that these investigations can be supported, financially or provide any information newspapers or human resources.”
A related issue being discussed among administration officials, according to officials, is whether the United States should soften its longstanding opposition to courts exercising jurisdiction over citizens from the United States. a country that is not a party to its treaty.
On the table is whether those decisions should be replaced instead depends on whether a particular country has a functioning justice system that can handle allegations of war crimes. The rationale is that it is legitimate for a court to investigate Russia’s war crimes because Putin and his commanders appear to have committed crimes with impunity in the country.
However, Pentagon officials are said to be faltering. They argue that moving to a case-by-case approach would be short-sighted because it would make it difficult for the United States to argue against court investigations into potential war crimes by American forces, officials said. said.
Some opponents of the US shift are also said to have turned to Israel, an ally that is also not a party to the treaty. The United States protested a court investigation into potential war crimes by Israeli forces.
But calls for a change in the US position are growing louder.
Mr. Graham insisted that the courts were created only to deal with situations where the rule of law had collapsed – unlike court systems in the United States or Israel, he said. On the contrary, he argues, “there is no rule of law in Russia more than in certain parts of Africa” where courts have prosecuted warlords for atrocities.
And in a Washington Post opinion column Last week, John Bellinger, a national security attorney in the George W. Bush administration, and Christopher J. Dodd, a former Democratic senator who was responsible for adding the exception to the 2002 law, established argued that “U.S. support for an ICC investigation into Russian war crimes would not constitute a double standard or be inconsistent with U.S. objections to court jurisdiction over personnel.” USA. “
While most of the world’s democracies have joined the courts a generation ago – including close US allies like Britain – many American leaders remain wary, fearing that one day where it can be used or abused to prosecute American forces.
In 2000, President Bill Clinton signed the 1998 treaty that created the court, known as the Rome Statute, but he also called it flawed and never submitted it to the Senate for ratification. Two years later, Mr. Bush essentially withdrew that signature.
However, in 2008, Mr. Bellinger – then the top lawyer for the State Department – announced that the US accept the “facts” of the court, admits that it “gets great international support.” The Obama Administration Steps Up Its Efforts to prosecute the warlords of Africaprovides rewards for the arrest of fugitives prosecuted by the courts.
Relationships slump in Trump administration, as a top court prosecutor try arrive investigate tortured terrorist arrests during the Bush administration. Goverment impose sanctions on court staff, and Secretary of State Mike Pompeo denounce it as corruption.
Given that history, the unanimous vote on a Senate resolution in favor of the International Criminal Court represents a notable shift. Mr. Graham attributed that change to Putin’s “war crimes”.
“I would say this is one of Putin’s greater achievements,” Graham said. “I didn’t think it was possible but he did – and that’s what got him reinstated the ICC in the eyes of the Republican Party and the American people.”