International Criminal Court

The U.S. does not recognize the jurisdiction of the International Criminal Court

A statue of the blindfolded lady justice in front of the United States Supreme Court building as the sun rises in the distance symbolizing the dawning of a new era.

Michel Martin transcript from NPR April 16, 2022

Heard on All Things ConsideredLISTEN· 6:50

NPR’s Michel Martin speaks with John Bellinger III, a former legal adviser for the National Security Council, about the complicated relationship the U.S. has with the International Criminal Court.

MICHEL MARTIN, HOST:

Earlier this week, President Biden used the word genocide to describe atrocities committed by Russia in Ukraine. The president had also previously called Russian President Vladimir Putin a war criminal and said evidence should be gathered to put Putin on trial. Now, you might be asking, how or where does such a trial take place? There is a legal body specifically set up to prosecute cases of genocide, war crimes and other serious international crimes. It’s the International Criminal Court, or ICC.

But here’s the rub. The U.S. does not recognize the jurisdiction of this legal body. We wanted to learn more about why the U.S. does not and, despite that, if there is a role the U.S. could play in investigating Russian actions in Ukraine. For this, we called John Bellinger III. He was a legal adviser for the National Security Council and the State Department during the administration of George W Bush. And he is with us now. John Bellinger, thank you so much for joining us.

JOHN BELLINGER III: Nice to be with you, Michel.

MARTIN: So the International Criminal Court was established in 1998 by an international agreement called the Rome Statute. And although the U.S. helped negotiate that accord, it ultimately did not formally join the ICC. As briefly as you can, why not?

BELLINGER: Well, that’s right, Michel. The U.S. has had a real roller coaster relationship with the ICC from the beginning with, unfortunately, more downs than ups. The real answer to your question is that the U.S. has been concerned from the very beginning that the prosecutor for the court would be given too much power unchecked, and he or she could conduct politically-motivated prosecutions of U.S. soldiers.

And the U.S. actually had long supported the concept of an international criminal court. Congress had actually voted resolutions back in the 1990s calling for the creation of an international criminal court based on the Nuremberg tribunals after World War II. But as you said, when the Clinton administration participated in the negotiations of the treaty, the Rome Statute that created this International Criminal Court, the U.S. was not comfortable with the outcome and ended up being one of only seven countries in the world that voted against the treaty.

MARTIN: I do want to point out that Russia also does not recognize the jurisdiction of the International Criminal Court, but the ICC has already opened investigations into possible war crimes committed by Russia in Ukraine. Can the U.S. help with these investigations, despite not being a member of the court itself?

BELLINGER: Well, it certainly can, and it should, in my view. There are some legal problems because when the court opened in 2002, Congress passed, on a bipartisan basis, a very draconian piece of legislation called the American Service Members Protection Act that strictly limits the U.S. ability to cooperate with the court, with some exceptions. So the Biden administration would have to work its way through these legal restrictions, which would, I think, ultimately allow some support to the court. The bigger problem, really, is how is it that the U.S., which has traditionally had some concerns about the court, now support the court’s investigation of Russia? There’s an answer to that, which is that the United States is not concerned about everything that the ICC does.

In fact, when I was legal adviser for the State Department in the second term of the Bush administration, we supported the court’s investigation of the genocide in Sudan. So as long as the court is doing what it was created to do, which is to investigate international crimes that have not been investigated by the country that committed them, then we should be helping it. Of course, if they start investigating politically motivated cases of us or others, then we can oppose that. But…

MARTIN: But wait. Wait. Hold on. What’s the distinction there? Is the distinction – for example, the U.S. condemned a previous ICC investigation into U.S. actions in Afghanistan. Is the defining issue here whether the government responsible for the actions in question has the capacity or the willingness or any history of investigating itself? Is that the dividing line there?

BELLINGER: So if the United States does end up supporting the ICC’s investigation of Russia, which I hope and ultimately think that the Biden administration will, we will certainly open ourself up to some charges of hypocrisy because of these traditional concerns that the U.S. has had about the ICC’s investigation of the United States. But there is a difference.

I think what we need to do is apply the terms of the treaty itself. The International Criminal Court exists only to assert jurisdiction when a country hasn’t investigated its own nationals for the most serious of offenses, and Russia hasn’t done that. In the case of Afghanistan, though, the United States had investigated most of those offenses. You can argue about whether the investigations were full enough, but there’s a big difference between the investigations that were conducted by the United States at the same time that Russia is claiming that it has done absolutely nothing wrong in Ukraine.

MARTIN: Critics say that this is already hurting U.S. moral authority by not being a member. So do you feel comfortable telling me your opinion about this? I mean, do you think the U.S. should be a member?

BELLINGER: The U.S. should be a member. But sadly, that ship sailed back in 1998 when the negotiators, over U.S. objections during the Clinton administration, negotiated a treaty that did not address U.S. concerns. So yes, it’s painful for me as an American, as a lawyer, as the former legal adviser for the State Department, representing a country that has long been at the forefront of international criminal justice. It is unfortunate that the United States is not a party to the International Criminal Court. We should be. But for the time being, I think U.S. policy will have to continue to be, through both Republican and Democratic administrations, is to support the court when it is doing what it was set up to do, which, in this case, the investigations of the Russian war crimes and crimes against humanity in Ukraine is exactly what the court was set up to do.

MARTIN: That was John Bellinger III. He is a former legal adviser to the National Security Council and the State Department during the administration of George W Bush. Mr. Bellinger, thanks so much for talking with us and sharing this expertise.

BELLINGER: Thanks, Michel. Great to be with you.

Ukraine is Redefining America’s Interests

If this conflict is a new cold war, it’s one that the autocracies have been pursuing energetically and the democracies have been loath to accept.

Low key photography of grungy old Soviet Union and United States of America flags. USSR, CCCP, USA.

Written by George Packer and published by the Atlantic 2/28/2022

About the author: George Packer is a staff writer at The Atlantic. He is the author of Last Best Hope: America in Crisis and RenewalOur Man: Richard Holbrooke and the End of the American Century, The Unwinding: An Inner History of the New Americaand The Assassins’ Gate: America in Iraq.

In the short six months between the fall of Kabul and the invasion of Ukraine, the triumph of one idea was eclipsed by the appearance of another. The wars that followed 9/11 ended for Americans on August 31, 2021. They ended with relief and bitterness and the sense that the United States would now have to learn restraint—that we lacked the ability, the will, and the means to involve ourselves in the affairs of other countries. Pax Americana was over, and so was the 20 Years’ War, and now it was time to turn inward and address our own considerable problems. After all, who were we, with our political rot, our social conflicts, and our COVID disaster, to act as a leader of anything to anyone?

This view was widespread across the political firmament. The progressive version leaned pacifist, the reactionary version was nationalist, and in the center a new “realism”—a hungover awareness of limits—prevailed. This realism reminded bruised, exhausted Americans that our national interests should be narrowly defined, and that other great powers, including Russia, have interests of their own that need to be respected.

The Biden administration embraced this realism before America had finished withdrawing from Afghanistan. It seemed to believe that the U.S. would leave nothing behind there except the debris of two decades of failure—and so it neglected to ensure that the Afghans who’d allied themselves with the American project in their country would have any kind of future anywhere. The relatively open, outward-looking society that had grown up during the American war among younger Afghans in the cities, with its lively press and civic activism and new freedoms for women and girls, was abandoned with barely a second thought.

The failure in Kabul showed that the new realists didn’t understand what our national interests actually were. It took Vladimir Putin to explain them.

In giving the order to invade Ukraine, Putin made nonsense of a raft of apologists who had, until the last hour, continued to believe that Russia could be satisfied with concessions, that it was acting out of “legitimate security concerns.” Putin didn’t start this war because of NATO expansion, or American imperialism, or Western weakness, or the defense of Christian civilization, or any other cause that directs blame away from the perpetrator. In 2014, Ukrainians staged what they called a “Revolution of Dignity” in Kyiv, and they’ve been struggling ever since to create a decent country, ruled by laws and not by thieves, free of Russia’s grip. That country was so intolerable to Putin that he decided to destroy it.

In 2016, in an interview with The Atlantic’s Jeffrey Goldberg, President Barack Obama took the realist view of the conflict in Ukraine: “The fact is that Ukraine, which is a non-NATO country, is going to be vulnerable to military domination by Russia no matter what we do.” He added, “This is an example of where we have to be very clear about what our core interests are and what we are willing to go to war for.” Obama was right not to go to war with Russia in 2014 when Putin annexed Crimea and invaded eastern Ukraine; and it would be equally disastrous for the U.S. to stumble into direct military conflict with Russia today. But if the front line between democracy and autocracy is a core interest of the United States, Obama should have concluded that the survival of Ukraine’s government was worth defending with American arms, harsh sanctions, and the international isolation of Russia’s rulers.

Obama’s successor took the Russian side of the conflict. President Donald Trump was willing to see pro-Russian kleptocrats return to power in Ukraine because they served his corrupt political ends, and because he and his followers despise liberal democracy and admire naked “strength,” especially when it’s exercised to break rules and heads. It was no accident that Trump’s first impeachment had its origins in Ukraine, with his attempt to blackmail President Volodymyr Zelensky to obtain political favors. The two countries are entangled, not just because of the war with Russia but because Ukraine is where the battle for democracy’s survival is most urgent. The fate of democracy here turns out to be connected to its fate there. Putin understands this far better than we do, which explains his dogged efforts to exploit the fractures in American society and further the institutional decay, and his use of Russian-backed corruption in Ukraine to corrupt politics in America. The West’s yearslong underestimation of his intentions and the stakes in Ukraine showed a failure of understanding and a weakening of liberal values.

Now Putin, along with his patron and enabler, Xi Jinping of China, has pushed into American and European faces a truth we didn’t want to see: that our core interests lie in the defense of those values. To be realist in our age is not to define American interests so narrowly that Ukraine becomes disposable but to understand that the world has broken up into democratic and autocratic spheres; that this division shapes everything from supply chains and competition for resources to state corruption and the influence of technology on human minds and societies; that the autocrats have gained the upper hand and know it. Russia’s invasion of Ukraine, following its earlier efforts to stifle independence and democracy there, as well as in Georgia and Belarus, is the most dramatic but far from the last point of conflict between the two spheres.

If this conflict is a new cold war, it’s one that the autocracies have been pursuing energetically and the democracies have been loath to accept. Until the past few days, the West seemed unwilling to confront Putin in a way that would hurt enough to make him regret his aggression. While Russian troops massed along Ukraine’s borders, European leaders showed little enthusiasm for any sanctions against Russia that might cost their people in commodity prices and financial disruption, and themselves in popular support. Britain was reluctant to expose Russian oligarchs who launder their criminal wealth in its banks and mansions. Italy wanted to protect the value of its luxury goods, and Belgium its diamonds. Germany invoked its terrible history of war in pleading for a peace that kept its supply of gas and oil uninterrupted.

Since last Thursday, Ukrainian resistance to invasion has shamed and inspired much of the world. Protests that were absent during the Russian buildup throughout February now fill the streets in cities from Sydney and Tokyo to Berlin and Bern—even in St. Petersburg and Minsk. Over the weekend the European Union imposed devastating banking sanctions on Russia. Most remarkably, Germany ended its decades of nonintervention and declared that it will send military equipment to Ukraine. Even perpetually neutral Sweden is arming the Ukrainians. This sudden, energetic unity of the democracies shows the reserves of power that can be brought to bear against the autocracies without going to war.

While Joe Biden’s domestic political opponents look for any reason to criticize him, the president is handling the crisis with skill and imagination. Unlike Afghanistan, Europe and NATO have a special importance for him because of his long experience of the Cold War and its aftermath. For the first time in decades, an American president is showing that he, and only he, can lead the free world, including by allowing Europeans to be the public voice for policies that the Americans push in private. Biden is right to rule out sending troops—after two decades of fruitless death and destruction, some lessons of restraint are well worth learning, above all in a conflict with another nuclear power. But he should make clear to the Ukrainian people, who are fighting alone, that they can count on every other form of American support—weapons, training, humanitarian aid, intelligence, and sanctions that smother the Russian economy and sever Russia’s elites from all the benefits of the rich West. Biden should tell his own people that they will have to make sacrifices, and why they are worth making.

Putin may still win his bet on Western decadence and indifference. America is more insulated than Europe from the effects of punishing Russia, but nothing can protect us from ourselves. If this country fails to persevere in supporting Ukraine, the cynical opportunism of our political elites and the self-absorbed divisions of our people will be the reasons. Putin’s assault on Ukrainian democracy will test American democracy as well.

As I write, Russian troops are attacking Kyiv and Kharkiv. Young Ukrainians—journalists, students with no military training, counterparts of those Afghans who lost everything last summer in the effort to escape from Kabul—are leaving their families and volunteering for the Territorial Defense Forces to fight against a far superior enemy. Even if the Russians decapitate the Zelensky government and replace it with a puppet regime, the war will go on, perhaps for months, perhaps for years. Ukrainians are fighting with the ferocity of people who know exactly what they have to lose. As long as they keep on, we owe them every chance to survive and, ultimately, succeed. They’re fighting on our behalf too.