According to a report by The New York Times, the Department of Defense is blocking the Biden administration from sending evidence of Russian war crimes in Ukraine to the International Criminal Court (ICC) in the Netherlands. Military leaders, including Secretary of Defense Lloyd Austin, are among those opposed to providing such evidence to the ICC, the international body in charge of prosecuting atrocities and genocide.
Pentagon officials reportedly fear it would create precedent for the court to charge United States citizens, which has stood as a redline for policymakers since the court’s inception. Meanwhile, intelligence agencies, the State Department, and Justice Department have all shown support for evidence sharing.
Atrocity prevention advocates are speaking out, arguing that the Pentagon belied its concerns over the impact of evidence sharing on the prosecution of U.S. citizens, or how the court even operates. Kenneth Roth, the former executive director of Human Rights Watch, argued in a tweet that the Pentagon was “flouting” the rest of the U.S. government by continuing to block evidence sharing between the Pentagon and ICC.
When the ICC was founded in 1998, the U.S. fought to prevent the prosecution of any citizens in countries that were not a party to the Rome Statute, the founding treaty of the international court. The U.S. government lost that debate. Since then, any person, regardless of citizenship, who is charged with a war crime in a country that has signed onto the ICC can be investigated and prosecuted by the court, making Sec. Austin’s concerns moot, advocates argue.
Adam Keith, the director of accountability at Human Rights First, told Military Times that the issue of whether the court has jurisdiction in situations involving U.S. citizens was settled 25 years ago. Keith referenced a 2012 instance in which the court issued arrest warrants for Rwandan rebel leaders Sylvestre Mudacumura and Bosco Ntaganda for alleged war crimes committed in the Democratic Republic of Congo. While the pair were citizens of Rwanda, a nation that does not recognize the ICC’s jurisdiction, the court could still prosecute because their crimes were committed in the DRC, a country that is a signatory to the international treaty.
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