It turns out that the United States and Russia – or, at least, U.S. Defense Secretary Lloyd Austin and Russian President Vladimir Putin – share a common adversary: the International Criminal Court. 

Before now, you might not have been familiar with the ICC, the permanent tribunal in The Hague tasked with prosecuting war crimes and genocide all over the world. At least, in theory. In practice, many factors hamper its ability to do its job, making it a less effective institution than it could be. 

It should be obvious why Vladimir Putin is no big fan of the ICC, which issued a warrant March 17 for his arrest on a charge of abducting and deporting Ukrainian children. Unfortunately, that’s not going to result in Putin being hauled off to prison any time soon, even though there is no doubt he deserves such an outcome. 

That’s because the ICC doesn’t function like a domestic criminal court, where police can serve warrants and arrest anyone who breaks the law, no matter their stature. Instead, the only countries that fall under the jurisdiction of the ICC directly are those that have chosen to recognize its authority – Russia, unsurprisingly, is not one of them. If Putin visits only countries that aren’t ICC members, then he’s not going to end up in jail, where he belongs. He’s free to continue his stage-managed visits to territory he’s illegally occupied in Ukraine, for instance. He just can’t go on vacation to Niagara Falls or London any time soon, because Canada and the United Kingdom would both be legally obligated to arrest him. 

What’s surprising, though, is that the ICC arrest warrant wouldn’t prevent him from jetting off to Miami for the weekend, because the United States – like Russia and China – is not a member of the ICC. 

If you ask U.S. officials, they’ll say the U.S. hasn’t recognized the ICC because of concern about American personnel, in both the military and intelligence communities, facing potentially frivolous prosecutions that would undermine our sovereignty and threaten national security. That’s an entirely valid concern, but it’s been taken too far in the past: Laws have barred U.S. personnel from even assisting with war crimes investigations carried out by the ICC. 

That’s where Austin, the defense secretary, comes into the picture: Even though Congress has recently loosened those restrictions to help the ICC investigate war crimes in Ukraine, he has dragged his feet on implementing that law.  

That means that not only does the U.S. refuse to sign on to the ICC and subject itself to its authority, it actively undermines the work of the ICC by failing to cooperate with its investigations. The Department of Defense is apparently unwilling to share its intelligence on Russian decisions to deliberately target civilian infrastructure, for instance – another potential war crime. 

It’s laudable that most of the Biden administration is interested in helping the ICC, but it’s infuriating that the secretary of defense is hampering those efforts.  

He ought to abandon his position and let the Department of Defense help the ICC in Ukraine. If he’s unwilling to do so, his boss, President Biden, ought to order him to reverse course. Enabling the International Criminal Court to investigate Russian war crimes in Ukraine is a higher priority than nebulous concerns about the precedent that might set. If our elected leaders have made that determination by rewriting federal statute, it’s inappropriate for unelected bureaucrats (no matter how high their rank) to stand in the way of their decision.

 

Indeed, the United States should go even further than simply helping the ICC with the occasional investigation; we ought to seriously consider joining the body, or least taking a step on the path towards doing so later. The concerns about ceding our sovereignty and our personnel facing prosecutions aren’t entirely frivolous, but they’re not insurmountable obstacles. 

Rather than simply refusing, we need to work toward finding a solution that increases the legitimacy of the ICC while respecting our national security. Our failure to join the ICC is just one example of the United States’ failing to live up to its ideals as the world’s most powerful and prosperous democracy. 

Given their prominent perch on the Senate Intelligence Committee, both Sens. Angus King and Susan Collins have a major role in this debate. Hopefully, they can use their influence to pressure the administration into not only fully cooperating with the ICC’s Ukraine investigations but pushing U.S. itself toward becoming a moral leader of the world, rather than simply an economic and military one. 

Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins. He can be contacted at:
jwfossel@gmail.com
Twitter: @jimfossel

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