U.S. military leaders want to block U.S. President Joe Biden's administration from sharing evidence of war crimes in Ukraine with the International Criminal Court, a senior U.S. diplomat told lawmakers.
Beth Van Schaack, the U.S. State Department’s ambassador-at-large for global criminal justice, confirmed to the Senate Foreign Relations Committee that the Pentagon "is not cooperating" with the administration's efforts to provide evidence to The Hague-based court.
She said officials from the U.S. Department of Defense fear any cooperation having to do with Russia's war against Ukraine could haunt the United States if the court also tries to press an investigation into alleged U.S. war crimes in Afghanistan.
But that's not a great risk, she told the Senate hearing on "accountability for Russian atrocities in Ukraine." And Biden hasn't stepped in to mediate the dispute.
“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,” she said. "I do not think that that is an acute risk at this time.”
The ICC won't pursue war crimes charges against Americans in Afghanistan if the U.S. courts handle it, she said: “I do not think that we are at all undermining our ability to robustly protect against any charges that might be brought."
Pentagon on edge over Afghanistan probe
The dispute over Afghanistan precedes Biden's administration. His predecessor, former President Donald Trump, signed an executive order in 2020 allowing sanctions to be imposed on ICC officials who try to investigate alleged U.S. war crimes in Afghanistan. Biden reversed the order soon after he took office in 2021.
The ICC had ruled unanimously in 2020 to allow its chief prosecutor to launch an inquiry into whether war crimes were committed in Afghanistan by the Taliban, Afghan military or American-led forces going back to almost 18 years earlier.
Though the United States signed the Rome Statute, an international treaty that took effect in July 2002 and underpins the ICC’s authority, the U.S. Senate never ratified it. Afghanistan, however, joined the court in May 2003.
The ICC’s preliminary examination of allegations of serious international crimes in Afghanistan began in 2006, but the scope was widened to include alleged war crimes committed by Taliban and Haqqani network militants, Afghan national security forces, and U.S. forces and intelligence in Afghanistan since May 2003.
That included allegations U.S. military and intelligence agencies used secret CIA facilities in Poland, Romania and Lithuania for "acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence against conflict-related detainees in Afghanistan and other locations" mainly from 2003 to 2004.
The ICC, which is not part of the United Nations system, serves as the first permanent international criminal court that can prosecute the most heinous crimes under international law: crimes against humanity, genocide, war crimes and aggression. It has 123 member nations that accept its jurisdiction.
In March 2022, a month after Russia's expanded invasion of Ukraine, then-Pentagon spokesman John Kirby, who is now spokesman for the White House National Security Council, said he was unaware of any Pentagon effort to look for or provide evidence to the ICC of Russians targeting civilians, which is a war crime.
