Should the Pentagon block sharing U.S.-derived evidence with the ICC?

Is the Pentagon acting reasonably if, as the New York Times alleges, it is “blocking the Biden administration from sharing evidence” with the International Criminal Court (“ICC”)?  Based on news reports, it seems that a very good case could be made that it is acting reasonably—despite wanting, as everyone does, war criminals to be brought to justice.

This issue takes on new urgency since the ICC issued arrest warrants on Friday for Russian Federation President Vladimir Putin and for Russia’s Commissioner for Children’s Rights, Maria Alekseyevna Lvova-Belova.  The ICC accuses them of war crimes related to the deportation of children.  That development will surely increase pressure for the Pentagon to share information with the ICC. 

What is the basis of the Pentagon’s alleged opposition? 

Though most nations are a party to the Rome Statute (the treaty which created the ICC), the U.S. (along with over forty other countries) has never been a party to it—much because of concern that it would improperly be used against U.S. servicemembers.

Thus, it should not be surprising if, as the Times says, “American military leaders oppose helping the court investigate Russians because they fear setting a precedent that might help pave the way for it to prosecute Americans.”

Erosion of sovereignty?

The Pentagon’s purported resistance to sharing information should not be interpreted as evincing any sympathy towards Russia or, for that matter, war criminals of any nation.  Indeed, the U.S. recently expanded its jurisdiction of its own courts over war crimes and has taken other steps to aid the accountability process.

However, the Department of Defense (“DoD”) should still be concerned–as seems to be the case–about actions that might erode long-held U.S. views about international law.  As the Times explains:

“Administrations of both parties have also taken the position that the court should not exercise jurisdiction over citizens from a country that is not a party to the treaty, like the United States and Russia—even when the alleged war crimes take place in the territory of a country that did sign onto it, like Ukraine and Afghanistan.”

This is nothing new.  As the U.S. State Department has said, the “United States has always taken the position that the court’s jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council.”

Why?  The ICC’s effort to extend jurisdiction over non-parties to a treaty raises a fundamental issue of sovereignty.  In this context sovereignty means a nation has a right to decide for itself which treaties will bind it and its people.  The question then is this: should citizens be subject to the jurisdiction of a treaty to which neither they nor their country has consented? 

For a treaty to bind Americans, it needs to be ratified by the President.  For that to happen, the Constitution requires it first receive the “advice and consent” of the Senate.  Consequently, many Americans reject the notion that they or their countrymen should be subject to the jurisdiction of a court created by a treaty that did not go through that process.

The notion of extending application of a treaty to non-party nations does have broader implications.  There are a number of treaties to which the U.S. is not a party and does not want to be a party. 

Yet if care isn’t taken even declining to join a treaty still might not be enough to avoid its essence from eventually being applied to the U.S. or U.S. persons.  How could that happen?  It is possible, for example, that the substance of a treaty might over time evolve into customary international law (“CIL”), which binds all countries—including those who were not a party to the original treaty. 

To avoid that result, the U.S. should forgo taking any steps that could interpreted as aiding the CIL development process as to any treaty to which it chooses not to became a party.  Sometimes the U.S. can also take affirmative action to position itself as a persistent objector” to any such evolution (an example is the statement about the treaty prohibiting nuclear weapons). 

Persistent objector status could preclude a CIL rule from being applied to the U.S. as it would be a formally objecting state.  However, the concern here might be that providing evidence to the ICC to facilitate the prosecution of citizens of a non-consenting, non-party state whose cases have not been referred to the ICC by the UN Security Council, could be seen as inconsistent with persistent objector status and, as a result, undermine or compromise its applicability.

In short, there are legitimate reasons for the Pentagon to want to avoid passing evidence to the ICC as doing so might be interpreted as a setting a precedent supporting the evolution of a what may start as a voluntary practice into CIL norm that binds the U.S., even if it remains a non-party.  That could ”pave the way” for Americans in be at increased peril of being subject to the ICC.

Protecting the rights of servicemembers

The Pentagon should also be wary of any activity that might “pave the way” for U.S. troops to be brought before the ICC for reasons related to the court itself.

Why?  In the first place, the U.S. has long had a number of concerns about the ICC, especially that it would become a source of politicized accusations.  As a 2019 post put it, “the ICC has not been able to shake the long-stated concerns that it would lead to politically-motivated cases.” 

These concerns were reiterated this week by a stinging editorial in the Wall Street Journal, The ICC Is the Wrong Way to Beat Putin.”  It warned that the “U.S. should steer clear of endorsing the International Criminal Court’s warrants.”  In coming to that conclusion, the Journal noted that the “U.S. has never endorsed the idea that a treaty applies to a country that isn’t a party to it” and added warnings about the potential of the court to be wielded unfairly against Americans.

Specifically, the Journal editorial points out that “George W. Bush repudiated [the Rome Statute] on grounds that anti-American ICC prosecutors and judges might target U.S. soldiers or government officials.”  It adds that Bush’s action “has proven to be wise,” and argues:

In 2017 ICC prosecutors sought to open an investigation into alleged war crimes by the U.S. military in Afghanistan….The court later suspended the investigation, but the fact that it was even considered shows the political nature of the court.

The editorial closes by insisting that the “path to justice is for Ukraine to prosecute those responsible, rather than an unaccountable international court.”

Secondly, as the 2019 Lawfire® post details, ICC legal procedures do not meet the minimum standards of the U.S. criminal justice system.  This raises important questions for U.S. military leaders.  As the post said: 

Is it wise, or – more to the point – right to tell the less than .04% of Americans who have stepped up to serve their country in uniform that they will also be subject to a criminal court system that fails to meet the basic groundwork of the Constitution that they are being asked to go into harms’ way to support and defend?

If U.S. troops are accused of wrongdoing, shouldn’t they – of all people – be afforded a trial that meets American standards? 

Moreover, the post noted that Congress was cognizant of the many flaws in the ICC when it passed the American Servicemembers Protection Act (“ASPA”) in 2002.  It’s worth reading its findings found here.  Among other things, Congress found that:

(7) Any American prosecuted by the International Criminal Court will, under the Rome Statute, be denied procedural protections to which all Americans are entitled under the Bill of Rights to the United States Constitution, such as the right to trial by jury. 

(8) Members of the Armed Forces of the United States should be free from the risk of prosecution by the International Criminal Court, especially when they are stationed or deployed around the world to protect the vital national interests of the United States. The United States Government has an obligation to protect the members of its Armed Forces, to the maximum extent possible, against criminal prosecutions carried out by the International Criminal Court.

ICC advocates will argue, with some real basis, that the chance that any U.S. servicemembers would find themselves in the ICC docket is very remote.  That might be true, but the fact is that it isn’t impossible.  The Pentagon is right to avoid doing anything that might enhance the likelihood that it could occur.

Can the ICC protect the information the Pentagon could provide?

Given the enormous amount of evidence that has been gathered by hundreds of investigators from over a dozen countries, it is hard to see how information from the DoD would be essential. 

In any event, the Times does not describe the “evidence” the Pentagon wants blocked.  However, Professor Michael Kelly wrote on West Point’s Articles of War blog that a “not insignificant source of such evidence is the intelligence community of the U.S. government, gleaned not only from human and signals intelligence but also sophisticated satellite imagery and unmatched forensic capabilities.”

If that description of the evidence is accurate, what would happen if it was turned over to the ICC?  Could doing so compromise sources and methods of intelligence gathering?  Consider a very recent essay by Todd Buchwald, a former U.S. Department of State official and an advocate of supporting the ICC.  He nevertheless pointed out the risks of “[s]haring classified or otherwise restricted information.”

Mr. Buchwald explains that the ICC’s statute requires the prosecutor “to disclose to the defense potentially exculpatory evidence.”  He says that:

It is true that Article 54 of the Rome Statute states that the Prosecutor may agree not to disclose lead information that “the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information provides consent.”

However, Mr. Buchwald warns:

The ICC judges have ruled in the Lubanga case, however, that they have a role in overseeing these provisions to assure that defendants have access to exculpatory information, with the result being that the Prosecutor cannot assure information providers that he will not disclose the information to the ICC judges, or – depending on the decision of the judges – to the defense.  (Emphasis added).

Interestingly, the Times claims the “intelligence agencies and the State and Justice Departments, favors giving the evidence to the court.”  But the very notion of providing Russian Federation President Putin information “gleaned not only from human and signals intelligence but also sophisticated satellite imagery” may be, rightly, still a concern for the DoD…irrespective of what other agencies may think.

The record of the ICC is not encouraging

And, what to think about the ICC?  As I said elsewhere, the ICC bills itself as the world’s first permanent international criminal court, and it has been amply supported.  Consider: in July 2022, the Associated Press (“AP”) reported the ICC “spent more than 2.2 billion euros ($2.3 billion) over its two-decade life.”  Its budget for 2023 is over $180,000,000.

What has the ICC produced for that sum?  The AP  said the ICC “has registered only three war crimes convictions and five for interfering with justice in the 20 years since its founding treaty, the Rome Statute, came into force on July, 1, 2002.”

The ICC is now claiming its judges have “issued 10 convictions and 4 acquittals,” but that still works out to an eye-popping $230 million per conviction—and all of those convicted have been from Africa.  In my view, none of that inspires confidence. 

Concluding thoughts

It remains to be seen if the Pentagon can maintain its reported opposition to turning over information to the ICC.  As Mr. Buchwald explains in his post, recent legislation (FY23 Consolidated Appropriations Act) “cleared important new paths for the United States to support the ICC Prosecutor’s efforts in Ukraine.”  It doesn’t necessarily mandate information sharing, and it does contain provisions intended to protect Americans, but it is significant.

Moreover, the legislation’s bipartisan support illustrates the understandable desire among many lawmakers to ensure what all Americans should want: accountability for any war crimes committed in Ukraine. This may explain why thus far there have been few voices raised in support of the Pentagon’s reported position.

But Americans shouldn’t be misled.  It’s not one or the other.  We can be strongly supportive of efforts aimed at bringing war criminals to justice without giving the ICC information DoD doesn’t want shared.  Perhaps some compromise can be found, but it must not be one that undermines the U.S.’ long term interests.  

The Administration needs to carefully think through the implications that passing U.S.-derived evidence to the ICC may raise, including that it could wind up in a war criminal’s hands and that passing it may operate to evolve norms, “pav[ing] the way” for the ICC to “prosecute Americans.” 

To reiterate, if an American is charged with a war crime, the case ought to be resolved under U.S. Constitutional standards and not those of the Rome Statute.

It’s no doubt tempting to draw a quick conclusion and acquiesce to sentiment that, however understandable and laudable, doesn’t fully examine broader – and long-term – negative impacts that sharing evidence with the ICC might produce.  Sure, there’s pressure to be seen as players on the ICC team, but it is in the firestorm when leaders need to be willing to stand strong to protect America’s interests now and in the future.

(Updated as of 1905 EDT 19 Mar 2023)

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself! 

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