Why Isn’t the Pentagon Helping the International Court Prosecute Putin?

The International Criminal Court’s charges against Vladimir Putin and an aide show that Ukraine is making progress in its dogged pursuit of justice for Russian war crimes. Despite the Biden administration’s strong rhetoric, though, several recent congressional hearings have revealed that U.S. support for that cause remains limited in at least one crucial way. As advocates for Ukraine’s victory and as former officers in the U.S. Army and Air Force, we are alarmed that the U.S. Defense Department—as Secretary Lloyd Austin seemed to confirm in a recent hearing—opposes allowing U.S. evidence of Russian crimes to be shared with the ICC.  

The U.S. government typically seeks to ensure that foreign courts will defer to U.S. institutions when it comes to holding American forces accountable for their acts abroad. But the Pentagon seems to be taking this understandable approach to an extreme that is incompatible with U.S. values and interests. It is withholding support for the ICC’s prosecutions of alleged Russian war criminals in Ukraine, in the hope that doing so will make the U.S. government more persuasive in the future when it asks an international court to defer to the U.S. justice system.

Secretary Austin, for whom we all three have great respect, referred to “concerns about reciprocity” when he was pressed on this issue by senators. But the United States can manage the legal risks of our own deployments overseas without separating ourselves from the institutions that Ukraine’s government and civil society are asking the United States to assist as they pursue justice. President Biden should authorize the sharing of U.S. evidence and other support for the ICC’s important work. 

Ukraine’s choice to involve the ICC is entirely appropriate. Every commander understands that providing accountability when the laws of war are broken—whether on your own side or an adversary’s—is ultimately a way of protecting your own people. Civilians are safer during hostilities, and servicemembers are safer when taken captive, if all the parties to a conflict understand that there will be legal consequences fairly imposed for violations.

Providing those consequences is mostly the job of national authorities, and over the last year, Ukraine’s authorities so far have shown that they are willing to do their part.  Those authorities are reportedly investigating a limited set of incidents in which Ukrainian forces appear to have killed captive Russian soldiers. Despite facing terrible constraints, Ukraine has begun holding trials related to a handful of the war crimes that Russian forces have committed on a vast scale against Ukrainian civilians.

Ukraine also made the sovereign decision in 2015 to invite the ICC to investigate war crimes committed on its territory, whether in the recent past or in future conflicts.  

Once Russia seized and occupied Crimea by force in 2014, it was clear that the assurances Ukraine had received in exchange for giving up its nuclear weapons in the 1990s would do little to protect Ukraine’s territory or its people. Ukraine sought out additional defenses wherever it could, including by tapping into the deterrent or punitive powers of an international court.  Now that the ICC has begun charging suspects, Ukraine’s partners have an opportunity to back up this next line of defense.  As the Ukrainian prosecutor general recently told a U.S. congressional committee, “if you support the ICC, you are supporting us.” 

The ICC has a vital and unique role in making sure that individuals responsible for Russia’s actions face consequences. Foot soldiers and officers need to be held to account for war crimes, of course. But the ICC is the only body able to pierce the legal immunity that protects the top level of Russian officials. Its arrest warrants against Putin and his aide have a unique weight and credibility, as U.S. officials seem to have acknowledged by highlighting the warrants in their criticism of China for its amoral embrace of the Putin regime. 

No one yet knows how important U.S. support to the ICC’s investigation might be.  The ICC prosecutor did not need U.S. evidence to make a case against Russia’s top officials for the crime of abducting Ukrainian children. But more charges are expected, including for Russian airstrikes against Ukraine’s civilian energy infrastructure, a topic on which U.S. intelligence—properly vetted to protect sources and methods—could be quite informative. Also, as the long pursuit of war criminals in the former Yugoslavia showed, other forms of U.S. support to the ICC, from diplomatic pressure to law enforcement tips, may be needed to hold Russian officials accountable.

Little is actually being asked of the United States. The U.S. government does not have to join the ICC to assist it in Ukraine, although doing so would make U.S. calls for justice much more credible and powerful. Rather, it only has to accept the world as it is.

While Secretary Austin has expressed concerns about “reciprocity” in weighing possible U.S. support for the court, we do not follow his logic. The ICC did not review the Russian government’s past policy toward other ICC investigations before deciding whether to investigate its forces for war crimes in Ukraine. Instead, it rightly looked at what Russian forces had done and where they had done it. However different their intentions and their record of service, Russian and U.S. forces alike may have their conduct investigated when they operate in ICC member states, whether they welcome it or not.

It is good that the Biden administration has not simply jumped to support the ICC because it offers a chance to weaken and discredit an adversary. Governments need to think beyond the crisis of the moment, and a commitment to justice that applies only to one’s enemies is not worthy of the name. The risk of U.S. legal exposure before the ICC is not hypothetical.  The court opened an investigation in Afghanistan that included U.S. conduct, though only acts that the U.S. government at the highest levels acknowledged were torture yet did not prosecute.

But helping the ICC’s investigation of war crimes in Ukraine will not increase or reduce the chances of U.S. personnel being investigated in the future. As Sen. Lindsey Graham said at a recent Senate hearing, the new U.S. legislation that took away the remaining legal obstacles to U.S. support for the ICC in Ukraine was adopted on a bipartisan basis, in consultation with the administration. “We’re not jeopardizing any American soldier,” he added.

We understand that the Defense Department has taken some comfort from arguing that the ICC should not have the breadth of jurisdiction that it does have. But holding U.S. officials and personnel to account is the best way to ensure that foreign courts defer to American ones.  Relying on legalistic objections to do that work instead puts the United States in the position of echoing some of the very talking points that Russian officials have offered in response to the warrant against Putin.  

The current U.S. posture makes it too difficult to help our Ukrainian friends pursue justice.  It also shows too little confidence in our own commitment to accountability. The United States can and must do better to support justice for Russia’s depraved actions.

Philip Breedlove and Wesley Clark both served as the NATO Supreme Allied Commander in Europe. Ben Hodges was the commanding general, U.S. Army Europe, and is a senior advisor to Human Rights First.