WH to lose moral high grounds in Kiev over Pentagon-ICC complications
According to Politico, Pentagon Chief's uncooperativeness with the International Criminal Court over alleged Russian war crimes could undermine Washington's moral argument against Russia.
Pentagon Chief's uncooperativeness with the International Criminal Court over alleged Russian war crimes could undermine Washington's moral argument against Russia, according to Politico.
The New York Times reported last week that White House officials were "dismayed" by Lloyd Austin's uncooperativeness.
According to the New York Times' sources, Secretary of Defense Lloyd Austin was against cooperating with the court's investigation into alleged Russian war crimes in Ukraine because of concerns about creating a precedent for prosecuting Americans for atrocities committed abroad, in places like Afghanistan.
The United States has long avoided the ICC out of concern that the tribunal would go after US officials accused of war crimes. However, in December, Congress modified the legal restrictions on cooperating with the court strictly to allow sharing of information on Ukraine in an effort to prosecute Russian soldiers. The Pentagon prevented the Biden administration from cooperating with the ICC even though other federal agencies were ready to do so.
The ICC is an international court based in the Hague founded by the Rome Statute in 1998. Unlike its sister organization (the International Court of Justice) which can prosecute states, the ICC's mandate is restricted to the persecution and investigation of "natural persons" as expressed in article 25 of the statute.
An individual can only be liable for persecution if they commit the alleged 'mass atrocity' crime in a state that is a party to the Rome statute or if the alleged criminal is a national of a state that is a party to the Rome Statute, as expressed in article 12.
Neither Russia nor Ukraine are state parties to the Rome Statute. Russia and Ukraine both signed the statute in 2000 however neither ratified the statute (they didn't pass it in their respective national parliaments). Russia however withdrew its signature from the statute in 2016 after the legal fiasco of the ICC with Omar al Bashir former Sudanese president.
The conventional bureaucratic process for activating the ICC is through a referral by a state party, according to Article 13 (a) on state jurisdiction. It's notable to mention that the US isn't a party state such that they didn't ratify the statute.
The non-conventional bureaucratic process for activating the court which was canonized with the case of Omar Al Bashir is referral through a Security Council resolution, according to article 13 (b). In the present case, Russian individuals seem to be subject to prosecution however Russia sits as a permanent member state of the security council with active veto power against any Security Council resolution.
An ICC investigation into alleged Russian war crimes is legally stillborn according to the articles of the statute, however, the initiation of an ICC investigation even if it ultimately ends in a dead-end can serve as an internationally legitimized smear campaign against Russia to solidify Washington's moral argument.