Pentagon Blocks Sharing Evidence of Possible Russian War Crimes With Hague Tribunal

WASHINGTON — The Pentagon is blocking the Biden administration from sharing with the International Criminal Court in The Hague evidence gathered by U.S. intelligence agencies about Russian atrocities in Ukraine, according to current and former officials briefed on the matter.

US military leaders oppose the court investigating the Russians because they fear setting a precedent that could pave the way for the Americans to be prosecuted. The rest of the administration, including intelligence agencies and the state and justice departments, are supportive of sharing evidence with the court, officials said.

President Biden has yet to resolve the impasse, officials said.

The evidence would include details relevant to investigation the International Criminal Court’s chief prosecutor, Karim Khan, began after Russia invaded Ukraine a year ago. The information would include elements on the decisions of Russian officials to deliberately target civilian infrastructure and abduct thousands of Ukrainian children of the occupied territory.

In December, Congress amended longstanding legal restrictions on US aid to the court, allowing the United States to assist in its investigations and possible prosecutions related to the war in Ukraine. But within the Biden administration, a political dispute over whether to do so continues to play out behind closed doors.

The National Security Council convened a cabinet-level “main committee” meeting on Feb. 3 to try to resolve the dispute, officials said, but Secretary of Defense Lloyd J. Austin III continued to push through it. oppose. Mr. Biden has yet to make a decision, officials said.

Most of the people who described the internal conflict did so on condition of anonymity to discuss sensitive deliberations.

But Senator Lindsey Graham, Republican of South Carolina, who helped push Congress to ease restrictions last year on aid to the International Criminal Court, confirmed the parameters of the dispute and blamed the Department of Justice. Defense for his reluctance.

“The DOD opposed the legislative change – it passed overwhelmingly – and they are now trying to undermine the letter and spirit of the law,” Graham said. “It seems to me that the 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.”

Representatives from the Pentagon, State Department, Department of Justice and Office of the Director of National Intelligence declined to comment or did not respond to requests for comment.

National Security Council spokeswoman Adrienne Watson made a statement that did not address the Pentagon’s opposition to evidence sharing. But she said the government “supports a series of investigations to identify and hold accountable those responsible” for Russian war crimes, including through Ukrainian prosecutors, the United Nations “and the International Criminal Court, among others”.

“Russian forces have committed war crimes and crimes against humanity in Ukraine, and the Ukrainian people deserve justice,” she said, adding, “We are also working to expose Russia’s atrocities in Ukraine. so the world can see what Russian forces are doing. ”

The International Criminal Court was created two decades ago as a permanent place to investigate war crimes, genocide and crimes against humanity under a 1998 treaty called the Rome Statute. In the past, the United Nations Security Council created ad hoc tribunals to deal with atrocities committed in places like the former Yugoslavia and Rwanda.

Many democracies have joined the International Criminal Court, including close US allies like Britain. But the United States has long kept its distance, fearing that the court will one day try to prosecute Americans.

The administrations of both parties have also taken the position that the court should not exercise jurisdiction over citizens of a country that is not a party to the treaty, such as the United States and Russia – even when the alleged war crimes take place on the territory of a country that has signed it, such as Ukraine and Afghanistan.

President Bill Clinton signed the Rome Statute in 2000 but, calling it flawed, did not send it to the Senate for ratification. In 2002, President George W. Bush essentially withdrew this signature. Congress, for its part, enacted laws in 1999 and 2002 that limited government support for the court.

Yet, at the end of the Bush administration, the State Department declared that the United States accepted the “reality” of the court and acknowledged that it “enjoys broad international support”. And the Obama administration has stepped forward to help the court by offering rewards for catching fugitives warlords in africa the court had indicted.

In 2017, however, the court’s then chief prosecutor tried For investigate the torture of terrorists detained under the Bush administration as part of a broader review of the war in Afghanistan. In response, the Trump administration penalties imposed on court staff and Secretary of State Mike Pompeo denounced him as corrupt.

A thaw returned in 2021, when the Biden administration lifted these sanctions and Mr. Khan, newly appointed prosecutor, abandoned the investigation. Then Russia invaded Ukraine last year, prompting a bipartisan push to hold Russian President Vladimir V. Putin and other members of his military chain of command to account — and sparking debates within the administration and in Congress whether and how to help the court.

In late December, lawmakers enacted two laws aimed at increasing the chances of Russians being held responsible for war crimes in Ukraine.

One was a stand-alone bill expanding the jurisdiction of U.S. prosecutors For indict foreigners for war crimes committed abroad. The other, a provision on the International Criminal Court incorporated into the big appropriations bill The Congress passed at the end of December received little attention at the time.

But this provision was important. While the U.S. government remains prohibited from providing funding and certain other assistance to the court, Congress has created an exception that allows it to assist in “investigations and prosecutions of foreign nationals related to the situation in Ukraine, including to support victims and witnesses”.

Despite this legal change and the signal of support from Congress, the Pentagon has firmly asserted that the United States should not help the International Criminal Court investigate the Russians for their actions in Ukraine, because Russia is not a party to the treaty which established the court.

This resistance has drawn criticism both within and outside outside the executive. Some jurists argue that there is little benefit in adhering to this position because the rest of the world essentially rejects this interpretation.

They argue that the United States would win more support over a hypothetical attempt to prosecute an American using a narrower argument: that under the treaty, the tribunal should only be used for countries that lack investigative systems. capable of dealing with serious international crimes by their citizens, and the United States does not qualify.

John Bellinger, a former top lawyer for the National Security Council and the Bush administration’s State Department, argued that if the court ever tries to prosecute an American, “we’ll have more allies who will be agreement with the narrower argument than the broader argument”. .” The Pentagon, he added, should reconsider the potential benefits of assisting the court.

“I also think the Ministry of Defense needs to look at the ICC not just in defensive terms – how could that fool us – but how can we use the ICC, the successor to the Nuremberg Tribunals, as a tool to investigate and prosecute? the Russian war. crimes,” Bellinger added.

Mr Graham said the rest of the government had approved of sharing the evidence and was frustrated with the Pentagon. He noted that he had spoken about the issue with Attorney General Merrick B. Garland, who reiterated its commitment to help Ukrainian prosecutors prosecute Russian war crimes during a visit to Lviv last week.

Pentagon leaders, Mr Graham said, “have expressed their concerns, and they are not illegitimate, but I think overall what we have done in legislation is the way forward and I want them to honor what we have done”.

“We did that with the administration,” he added. “It was a collaborative effort.”