By Sara L. Ochs
Two years ago, the U.S. government treated the International Criminal Court like an enemy of the state. Now, the ICC may be the only way to ensure justice for Russia's war crimes.
On Feb. 28, the court's prosecutor announced he would open an investigation into Russian war crimes and crimes against humanity committed in Ukraine. The announcement came amid reports of Russia's use of cluster munitions on Ukrainian preschools and subsequent artillery strikes on maternity wards, which if confirmed constitute war crimes in violation of the Geneva Conventions.
The prosecutor's announcement quickly garnered international support, with 41 nations formally referring the Ukrainian situation to the court, thereby expediting the prosecutor's investigation.
Then, on March 3, U.S. Sen. Lindsey Graham introduced a draft Senate resolution calling for the U.S. to support the ICC's investigation into Ukraine.
Yet, two years ago, the ICC was considered to pose such a threat to democracy so as to warrant the U.S. authorizing sanctions against court officials.
So, what's changed?
The answer is little, except for perspective.
As a court designed as a "last resort" to prosecute crimes of most concern to the international community, such as genocide and war crimes, the ICC's jurisdiction is limited. Generally, the ICC is prevented from investigating crimes committed by nonmembers of the court such as Ukraine, Russia and the United States. However, the ICC can exercise jurisdiction when a nonmember of the court commits international crimes on the territory of a nation that is either a member of the ICC or has otherwise formally accepted the court's jurisdiction, as Ukraine did in 2015.
The ICC exercised this jurisdiction over a nonmember in 2020, when it authorized an investigation into atrocities committed in Afghanistan. While Afghanistan is a member of the ICC, the investigation encompassed war crimes and crimes against humanity committed by the Taliban and affiliated terrorist groups, the Afghan National Security Forces, and ― notably ― U.S. military and intelligence personnel.
The Afghanistan investigation struck a nerve with the U.S. government, which had been an early supporter of the ICC at the time of its creation, but which declined to join the court in part due to the ICC's ability to exercise jurisdiction over nonmembers.
In response to the ICC's investigation into Afghanistan, then-President Donald Trump refused to recognize the court's authority and issued an executive order imposing sanctions on ICC personnel involved in the Afghanistan investigation, ironically pursuant to the same authority by which the U.S. now sanctions Russia for its actions in Ukraine.
While President Joe Biden has since revoked Trump's ICC sanctions, he has maintained U.S. objections to the court.
But now that Russia is the superpower in the ICC's hot seat, it's time for Biden to reconsider.
As a veto-holding permanent member of the United Nations Security Council ― like the United States ― Russia easily subverted the U.N.'s binding resolution requiring Russia to withdraw from Ukraine, and Russian President Vladimir Putin seems largely undeterred by economic sanctions leveled against him from nations around the world.
The ICC may be the one way to hold Putin individually accountable for Russian war crimes on Ukrainian soil.
If nothing else, the ICC prosecutor's investigation and the global and domestic support it's received should make Biden rethink his refusal to cooperate with the court. The ICC is not a threat to democracy as the Trump administration so often claimed. Instead, the court seeks to prosecute the perpetrators of atrocity crimes ― regardless of how powerful they may be - and to provide the only justice that may be available to victims of atrocities.
The United States should formally recognize the ICC's jurisdiction and support its efforts to prosecute war crimes, even if this means subjecting our own officials to an investigation.
The U.S. government has previously supported international criminal courts, including the U.N.-created courts to prosecute crimes committed during the Rwandan genocide and the Balkan wars. The government needs to provide the same support now to the ICC.
It's time for the U.S. to again be on the right side of international justice.
Sara L. Ochs is an assistant professor at the Louis D. Brandeis School of Law at the University of Louisville. This article was produced for Chicago Tribune and distributed by Tribune Content Agency.
