The authors are lawyers with Arnold & Porter. Christopher J. Dodd, a Democrat, served in the U.S. Senate from 1981 to 2011. John B. Bellinger III served as the legal adviser for the National Security Council and State Department from 2001 to 2009.
But the Biden administration has not yet said whether the United States will assist the International Criminal Court (ICC) in The Hague, which opened an investigation last month into possible war crimes and crimes against humanity.
Potential U.S. assistance to the ICC is complicated by the fact that the United States is not a party to the Rome Statute, the 1998 treaty that created the ICC. In the years since, Republican and Democratic administrations have objected to the court’s claims of jurisdiction over U.S. personnel, and U.S. law severely restricts the executive branch’s ability to assist the court. But the law includes important exceptions, which both of us helped draft, that permit U.S. assistance in certain cases. The Biden administration should help the ICC investigate Russian war crimes and rely on these exceptions to provide intelligence, diplomatic and other support.
The Clinton administration ultimately voted against the treaty that created the ICC, based on Defense Department objections that the ICC prosecutor might conduct politicized prosecutions of U.S. military personnel, and the George W. Bush administration later declared that the United States would not join the court. In 2002, Congress went further still by enacting the American Service-Members’ Protection Act (ASPA), which prohibits U.S. agencies from providing financial, intelligence or other support to the ICC.
The U.S. relationship with the ICC reached a nadir during the Trump administration after the court opened an investigation into alleged U.S. war crimes in Afghanistan. In response, Trump officials imposed financial and other sanctions on ICC officials and threatened to bring criminal charges against them. President Biden lifted these sanctions last year.
We believe it is lawful and appropriate for the United States to assist the court’s investigation of Russian war crimes. One provision of the ASPA, drafted by one of us and known as the Dodd Amendment, specifically permits the United States to assist international efforts to bring to justice “foreign nationals” who commit war crimes and crimes against humanity. Another provision, added when the other of us was a White House lawyer, provides that the ASPA does not interfere with the president’s constitutional authority to take actions to help the Court in specific cases. These exceptions would clearly allow the United States to share intelligence information about Russian offenses, to allow expert investigators and prosecutors to assist, and to provide law enforcement and diplomatic support to the Court.
U.S. support for an ICC investigation of Russian war crimes would not constitute a double standard or be inconsistent with U.S. objections to the court’s claimed jurisdiction over U.S. personnel. The United States can help the court in appropriate cases while still strongly opposing ICC investigations (including of U.S. personnel) that do not meet the court’s strict threshold requirements. The ICC was created to prosecute only the most serious international crimes that are not addressed by the nations that commit them, not to investigate every allegation of misconduct.
Since Russian forces invaded Ukraine on Feb. 24, they appear to have committed grave and widespread violations of the Geneva Conventions, killing more than 1,400 civilians in targeted or indiscriminate attacks; the United Nations has documented more than 75 attacks against medical facilities, including 50 hospitals. The most recent reports from Bucha suggest Russian forces committed crimes against humanity by torturing and executing civilians.
Russia is not a party to the Rome Statute. Neither is Ukraine, but Kyiv has accepted the court’s jurisdiction over offenses committed in Ukraine, and there is very broad international support for an investigation of apparent Russian war crimes. Moreover, unlike the United States, which has conducted multiple investigations of alleged offenses by U.S. personnel relating to Afghanistan, Russia has to date denied any wrongdoing in Ukraine.
The ICC now faces the greatest challenge in its 20-year history. Its newly elected chief prosecutor will be flooded with information about alleged Russian (and possibly Ukrainian) war crimes and will need to decide whether to bring indictments against senior Russian officials, potentially including Putin. Despite past and potentially future U.S. concerns about misguided ICC investigations, the tribunal is now doing exactly what it was set up to do.
Consistent with the long-standing U.S. commitment to international justice, the United States must assist the court’s work. It is our moral responsibility to do so.