Now that the Biden administration has pledged to help the International Criminal Court, or ICC, in The Hague—“and other efforts”—to prosecute Putin and others for war crimes committed during the invasion of Ukraine, it makes even less sense for the United States not to join the court after decades spent ducking the responsibility. Let’s face facts: After Ukraine, the ICC will be the only game in town. And like it or not, the U.S. has already been forced to build the court up, the perennial objections from the Pentagon that the ICC should not be permitted to have jurisdiction over U.S. military personnel notwithstanding.
It is a fantasy to believe that the ad hoc tribunals created by the U.N. Security Council—where Russia has a veto—are going to derail the ICC from its steadily growing preeminence in the judging of war crimes of the future. And while the claim that the ICC has no “jurisdiction” over nonsignatory countries may technically be a limit in the ICC’s charter, that limitation was rendered impractical well before the Russian invasion. Russia is not a member either; while Ukraine may have technically accepted jurisdiction, the reality is that the ICC has, in its legal DNA, the ability and the responsibility to act globally—especially against monsters who do not accept its jurisdiction. There is no future for the U.S. in trying to stand apart from the ICC. And we will be far better able to protect our legitimate national security interests by being inside, and not outside, the court.
Let’s start with what we get out of participating in the ICC. Just as we did at Nuremberg in 1945, we will have a hand in defining what is or is not a war crime, what is or is not genocide, and what is or is not a crime against humanity. We will participate in the judging, and inside the ICC, we will be primus inter pares—first among equals—at least in the bloc of ICC members who are our NATO allies and who are beholden to us for their own security. Why would we stay out, give up that leadership role, and let other countries take the lead in defining the legal standards that will apply to us? Aside from setting the standards, it is additionally important for the U.S. to have some say about who should be prosecuted under these standards. We can continue to cheer from the sidelines if we wish. But there is no internal institutional reason why Ukraine, our NATO allies, or less friendly countries should take any heed from us as to whether it makes sense to prosecute Putin.
And it is not just that the U.S. loses this power by staying out. It has erected a law that is designed to alienate or poison our relationship to anyone who is a lawyer, civil servant, or part of whatever permanent bureaucracy, formal or informal, constitutes the European Union. That’s because of the spectacularly ill-advised American Servicemember Protection Act, or ASPA, one of the more stupid and self-defeating laws ever enacted by Congress. Under the ASPA, should the ICC detain or take custody of any American service member or “U.S. person”—which is defined to cover just about anyone helping us—the president has authority to use any means necessary, other than bribery, to obtain that “U.S. person’s” release. In other words, the president can conduct a special military operation, the term Putin used for the initial invasion of Ukraine.
The notion is utterly ridiculous. Consider that Article 5 of the 1949 NATO Treaty—invoked only once, after the 9/11 attacks—would have to be invoked again if the U.S. carried out a military assault upon The Hague, located within the territory of a NATO country. Not only would our NATO allies be required to attack the U.S., the U.S. would be required … to attack itself. Nonsense it may be, but it is hardly lost on those connected with the ICC that each and everyone is potentially under a shoot to kill order, enacted without a sunset clause, by the same U.S. that is providing assistance to build up the ICC into a preeminent global institution.
While we lose leverage by staying out, we lose nothing by going in. After the Ukraine invasion, our claim that the ICC has no jurisdiction over the U.S. will be even more illusory: If it is to be brushed aside in the case of Russia, the logic that the U.S. is similarly exempt will no longer be tenable. It is also true that there is a big distinction: In effect, American service members and American citizens, if not the looser category of “U.S. persons,” would not be subject to prosecution in the ICC if the U.S. legal system can render justice on its own. This is the principle of “complementarity,” a key part of the original Rome Statute of the International Criminal Court, the founding treaty adopted now by 123 member states and which went into effect in 2002. It is the ICC that is supposed to be “complementary,” used only in case no nation or applicable nonstate is willing to exercise jurisdiction.
Aside from that jurisdictional limit in the Rome Statute itself, Congress can put in that same limit into a federal law as an additional limit on ICC jurisdiction. With any treaty the U.S. signs, Congress can always pass a law to limit—or modify or clarify the limit of—the U.S. commitment. Such a law will generally have precedence under the Constitution over any treaty obligation. In effect, we can join the ICC and still determine its jurisdiction, or lawfully exclude it over American personnel. Congress can do so by mandating the jurisdiction of the federal or military courts over the same crimes covered by the ICC. In the last resort, the president also can even abrogate a treaty—lawfully under the Constitution—should he choose to do so, and such an abrogation by the president is effectively unreviewable, not only by our own courts but by the ICC as well.
Once in the ICC, and with such a law in place, the U.S. could refuse to extradite or turn over any American service personnel. Under the Rome Statute—but also under a law—we have a legal entitlement to their release. Or we do so long as we have a functioning judicial system capable of adjudicating possible war crimes. God help the U.S. if it does not have such a system. For the sake of our domestic liberty, we might want such a check. And to have such legal entitlement taken from the statute, even if it is one that we unilaterally enforce under our own domestic law, is at least as much protection as we have now.
For the heretofore reluctant Pentagon, membership in the ICC may offer a boon: It should increase the capacity of military leadership to command and control the lower ranks. It will increase the importance of the military courts in which Senator Lindsey Graham used to practice. The worst thing for both the military and the delicate military missions it is likely to conduct in the future is to bear any resemblance to the anarchic insubordination of the Russian army in Ukraine. We need to incorporate military justice into military missions in an age when global standards are here to stay. Remaining outside the ICC weakens our ability, as well as NATO’s, to overcome suspicion of the U.S. on those occasions when winning the cooperation of civilians is crucial. Staying out of the ICC will always be a stain on our military—a mark of Cain on them in any country where American soldiers may find themselves serving.
But regardless of whether joining the ICC will have an effect on military discipline or on amplifying the standards of the U.S. military to a level beyond Russia’s or China’s reputation, we have a vital interest in being part of a court whose territory is the NATO heartland. We are the West—and it is in our long-run interest to be the West. The ICC exists as the bearer of values that historically came out of Europe’s civil wars. What is the interest of leaving our NATO allies and other countries to develop the legal standards that will inevitably be applied to us?
There is a moral issue that has become sharper since the invasion of Ukraine. So far, the U.S. has had a very good war. Without risking a single life, or losing a single soldier, the U.S. has achieved a remarkable strategic objective: the degrading of the capability of the Russian military. We have had to sit back and write checks—checks that are not even that dear, compared to what’s at stake in this war. For all the human sacrifice the Ukrainian people have made for us, for all that they have served our own interest, the U.S. owes an enormous debt: a debt that money can never repay. Should the outcome of this war permit it, we owe them a new world order. A Nuremberg for our century, wrought through joining the only institution through which it can happen. It would be a lasting stain upon our country not to join the ICC.