To Help Get Justice for Ukrainians, the US Needs to Stop Undermining the ICC

As Russia's war in Ukraine continues, human rights groups have gathered evidence of Russian atrocities against civilians--including executions, rapes, and mass murder. These are war crimes, President Biden asserted recently, adding that Russian President Vladimir Putin "should be held accountable."

Biden is right.

The U.S. now has an opportunity to reset its contentious relationship with the ICC--and the global rule of law more broadly.

Russia's crimes in Ukraine clearly violate the laws of war enshrined under the Geneva Conventions as well as the UN Charter, which prohibits wars of aggression. The International Criminal Court, or ICC, has already opened an investigation into Russia's alleged crimes in Ukraine.

The U.S. wants to support the move, but there's one big problem: Like Russia, the United States itself refuses to join the court. And that could make it more difficult to get justice for Ukrainians.

National courts would ideally prosecute the perpetrators of international crimes. But when states prove unable or unwilling to prosecute them--including for political reasons--the ICC has stood as the court of last resort.

Established in 2002 by the Rome Statute, the ICC has 123 member states where it can investigate and prosecute crimes of genocide, crimes against humanity, war crimes, and state acts of aggression. (Ukraine has also not formally joined the court, but has submitted to its jurisdiction in the past.)

International courts have long played an important role in pursuing justice--and the larger fight against impunity under international law.

After World War II, the prominent Nuremberg trials, led by the U.S. and allied powers, prosecuted Nazi war criminals. The U.S. has also backed international criminal tribunals for the former Yugoslavia, Rwanda, and Sierra Leone, which have held high-ranking individuals accountable for terrible crimes.

But what happens when a state is too powerful to be bound by international courts?

The problem isn't the absence of law but rather its breakdown, when states refuse to comply and aren't held accountable. This can further inflame conflicts. The resulting pattern of war, displacement, and rampant human rights violations we're seeing in Ukraine has tragically become all too familiar.

But it's not just Russia.

When President Bill Clinton signed the Rome Statute, he advised against U.S. ratification out of concern that the court could assert jurisdiction over U.S. officials and servicemembers. President George W. Bush then famously "unsigned" the Rome Statute less than one year before his illegal invasion of Iraq.

The Trump administration went so far as to sanction ICC prosecutors who were investigating possible U.S. crimes in Afghanistan.

The U.S. now has an opportunity to reset its contentious relationship with the ICC--and the global rule of law more broadly.

A resolution now in Congress, introduced by Rep. Ilhan Omar (D-MN), calls for the U.S. to join the ICC. Another resolution would repeal a 2002 law that prohibits U.S. support for ICC investigations. Enacting both would bolster the court's effectiveness through greater U.S. involvement and show that the U.S. is serious about international criminal justice.

Ultimately, no country should stand in the way of accountability and remedy for victims of conflict, whether in Ukraine, Palestine, Yemen, or elsewhere. That includes the United States, which must also reckon with its own crimes committed during the wars in Afghanistan and Iraq.

"We cannot successfully cooperate with the rest of the world in establishing a reign of law," warned Robert H. Jackson, the chief U.S. prosecutor at Nuremberg, "unless we are prepared to have that law sometimes operate against what would be our national advantage."

Law alone won't deliver global justice. But if we want fewer wars, more diplomacy, and more international cooperation, then no country can remain above it.