The viral images of the Russian genocide in Ukraine have wreaked havoc on the whole global community as the calls for increased Russian scrutiny intensified.
American President Joe Biden has already noted that Russian President Vladimir Putin must be held “accountable” for the brutal killings and war crimes.
Similarly, Secretary of State Antony Blinken has also mentioned that the United States believes that the Russian attacks on hospitals, buildings, apartments, schools, and other likewise facilities are “war crimes,” adding that America would share information with relevant international bodies to help them bring Putin to justice.
However, the Biden administration has not decided yet whether or not it would help the International Criminal Court (ICC), headquartered in the Hague. The ICC launched investigations into Russian war crimes in March to find out if Russia really committed war crimes.
America has limited Authority to Prosecute Russia in ICC for War crimes
The US’s likely intervention in the investigation can be disturbed by the fact that it is not a direct party to the Rome Statute.
Rome Statute is a 1998 international treaty that eventually created the ICC. Since the establishment of the body, both Democratic and Republican administrations have established that the ICC has no jurisdiction over US law and US personnel, which restricts the ability of the US executive authority to help the court.
The administration of President Clinton voted against the establishment of the ICC, citing Defense Department objections that the organization could do political prosecution of American military personnel.
Later on, George W. Bush endorsed not joining the ICC. In 2002, Congress went one step further and enacted the American Service-Members’ Protection Act (ASPA), which barred the US from providing any intelligence, financial, or other support to the ICC.
The relations between the United States and the ICC hit an all-time low under the Trump administration when the organization tried to prosecute American soldiers for their war crimes in Afghanistan.
This encouraged the Trump administration to impose chronic sanctions on the ICC officials, even threatening them to bring criminal charges against those very same officials. Just last year, Joe Biden uplifted these sanctions.
The US has to Work on Exceptions to Sue Russia
However, the law still has some exceptions, which the Biden administration can exploit to intervene in the ICC in order to investigate Russian war crimes.
There is one provision named Dodd Amendment, which allows the United States to help the organization to bring foreign nationals who commit war crimes to justice.
So, this exception is the pathway for the Biden administration to help the ICC in prosecuting Russians for their war crimes in Ukraine.
Thus, the US can still assist the ICC in investigating war crimes, even without letting the ICC investigate its own war crimes.
However, disabling the ICC for its own affairs dilutes the US moral authority to help the organization in prosecuting other countries.
This is due to the fact that the very purpose of the making of ICC was to settle international disputes which countries are unable to settle bilaterally.
If the United States is willing to help other nations, it should be able to present itself for scrutiny in the first place. Without this, the US international image is bound to hit severely.
The ICC is heavily influenced by the countries of the western world, and there is no second thought that Russia would be convicted of war crimes in Ukraine if the US decides to pursue the case fully.
But there is yet another problem here. The decisions of the ICC are not binding on any state, and countries only accept them for the sake of goodwill.
However, Russia, which went to war by going against the world, will have no second thought before renouncing the decisions of the ICC. And Russia is not a party to the Rome Statute either, and the same is the case with Ukraine.
So, the ICC is facing a challenge of unprecedented nature where both the violator and the subject of violations is not the party to the statute, and the country trying to prosecute them has limited authority to do so.