The U.S. Department of Defense (DOD) is withholding valuable information from the International Criminal Court (ICC), hindering the court’s investigation of alleged Russian war crimes in Ukraine, according to a key U.S. ambassador.
At a Wednesday Senate Foreign Relations Committee hearing, U.S. Ambassador-at-Large for Global Criminal Justice Beth Van Schaack testified that she believes the DOD is the one department holding up U.S. support for the ICC investigations into alleged Russian war crimes. During the hearing, Van Schaack also testified that the DOD may be blocking support for the ICC’s war crimes investigations in Ukraine out of concern that such cooperation would expose the United States and its allies to added legal liability for their own wartime conduct in recent history.
Van Schaack said various U.S. agencies and departments have collected a “range of very actionable information that we have been able to collect that might be very helpful to a justice process.” She then told Sen. Chris Van Hollen (D-Md.) that the United States could share that information with a variety of international actors seeking war crimes prosecutions “but we can’t share it with the ICC because of the position DOD has taken.”
“And the one agency that is not consenting is DOD, is that right?” Van Hollen asked. “The defense department is not cooperating in that way right?”
“Yes,” she said.
DOD’s War Crime Concerns
While the DOD has broadly condemned the actions of Russian troops in Ukraine, the department may be concerned that support for ICC crime prosecutions against Russia will also invite investigations into U.S. personnel.
In 2017, ICC Prosecutor Fatou Bensouda proposed a sweeping investigation into war crimes in Afghanistan. That investigation would have looked into war crime allegations against the Taliban, but also allegations against U.S. military and CIA personnel.
The Trump administration repeatedly pushed back on ICC investigations into U.S. conduct in Afghanistan. In September 2020, then-Secretary of State Mike Pompeo announced sanctions and visa restrictions against individuals “who have directly engaged in ICC efforts to investigate U.S. personnel without the consent of the United States or have materially supported individuals who are designated for such actions.”
Senate Foreign Relations Committee Chairman Bob Menendez asked Schaack to speak to the DOD’s concerns during the Wednesday hearing.
“Well, I’ll say at the outset that in my role as the lead diplomat in the international justice space, I would work tirelessly to ensure that no U.S. personnel will be brought before the ICC,” Schaack told Menendez. “But I do not think that that is an acute risk at this time.”
“The prosecutor has already announced that he has deprioritized any investigation into international forces in Afghanistan and is instead turning his attention, as is appropriate, to ongoing crimes against humanity being committed by the Taliban, by ISIS-K, and by other non-state actors in Afghanistan,” she added.
Schaack also said the ICC will follow the “principle of complementarity” which holds that the international court will withhold prosecuting a case if the case is already working through a given country’s legal system.
Menendez said he had asked the DOD to participate in Wednesday’s hearing, but DOD officials did not attend.
NTD News reached out to the DOD for further comment on its stance with regard to ICC war crimes investigations. The department did not respond by the time this article was published.