NYT: The Pentagon blocks the transfer to the ICC of evidence of Russian atrocities in Ukraine collected by American intelligence services

The Pentagon is blocking the transfer by Joe Bidenʼs administration to the International Criminal Court (ICC) in The Hague of evidence about Russiaʼs atrocities in Ukraine, collected by American intelligence services.

The American newspaper The New York Times writes about this with reference to current and former officials who are informed about this issue.

American military leaders oppose the courtʼs assistance in the investigation of cases against the Russians, because they fear the creation of a precedent that can help the court bring the Americans to justice. According to officials, the rest of the administration, including intelligence agencies, the State Department and the Department of Justice, is in favor of turning the testimony over to the court.

Evidence from the US intelligence agencies includes details of the investigation that the chief prosecutor of the International Criminal Court Karim Khan launched after Russiaʼs full-scale invasion of Ukraine. The information includes materials about the decision of Russian officials to deliberately attack civilian infrastructure and abduct thousands of Ukrainian children from the occupied territories.

The National Security Council convened a Cabinet-level meeting on February 3 in an attempt to resolve the dispute, but Defense Secretary Lloyd Austin continued to object, officials said. Biden has not yet made a final decision.

The International Criminal Court was established in 2002 as a permanent body to investigate war crimes, genocide and crimes against humanity. It was created on the basis of the Roman Statute. The United States has long kept its distance from the ICC, fearing that the court might one day try to prosecute the Americans.

President Bill Clinton signed the Rome Statute in 2000, but, calling it imperfect, did not send it to the Senate for ratification. In 2002, President George W. Bush effectively revoked that signature. Congress, for its part, passed laws in 1999 and 2002 that limited the support the government could provide to the court.

In November 2017, ICC prosecutor Fatu Bensouda announced that she would seek permission from ICC judges to investigate the actions of the US military in Afghanistan. In response, the Trump administration imposed sanctions on court personnel.

The thaw returned in 2021, when the Biden administration lifted those sanctions and the prosecutor dropped the investigation. In 2022, Russia invaded Ukraine, sparking a drive to prosecute President Putin and his entourage — and sparking a debate within the administration and in Congress about whether and how to help the court. In late December, Congress expanded the jurisdiction of the US prosecutors to charge foreigners with war crimes committed abroad and authorized assistance to the ICC in "the investigation and prosecution of foreign nationals related to the situation in Ukraine, including to support victims and witnesses."

Despite this, the Pentagon firmly stated that the United States should not assist the International Criminal Court in investigating the actions of the Russians in Ukraine, as Russia is not a party to the Rome Statute, which established the International Criminal Court.

• Currently, approximately 70 000 cases of war crimes by Russians have been opened in Ukraine. The collection of evidence and the investigation of crimes are not only handled by the Prosecutor Generalʼs Office, but also by the International Criminal Court, prosecutors and investigators of third countries, as well as human rights organizations. The dialogue group will allow to coordinate and unite all these participants.