Vladimir Putin vs. the International Criminal Court

On March 17, the International Criminal Court issued a warrant of arrest for Russian President Vladimir Putin as a war criminal for allegedly deporting and transferring children from Ukraine to Russia.

The Nuremburg Tribunal declared that "To initiate a war of aggression is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” Putin deserves to be convicted of war crimes on the same grounds that Truman, Kennedy, Johnson, Nixon, Reagan and Bush deserve to be convicted of war crimes. Noam Chomsky has said that "If the Nuremberg laws were applied, then every postwar American president would have been hanged."

But there are a number of questions that need to be answered and a number of hypocrisies that need to be faced in the arrest of Vladimir Putin.

The first is the question of how the ICC came to consider the case. The first way ICC jurisdiction can be triggered is by a referral from the Security Council. That did not happen. The second way is if a country that is a member of the ICC refers a crime that was committed on its territory to the court. Neither Ukraine nor Russia are members of the ICC.

The final way is if an ICC prosecutor starts an examination on his or her own accord into a crime committed on the territory of an ICC member or on the territory of a country that has consented to ICC jurisdiction. Again, neither Ukraine nor Russia are ICC members. However, Ukraine accepted ad hoc jurisdiction of the court in 2014, meaning that crimes against humanity or genocide, but not crimes of aggression, can be tried by the ICC.

According to former Indian diplomat M.K. Bhadrakumar, the UK pressured the ICC judges to take up the case against Putin, though he does not provide a source for this information.

There is greater clarity and evidence for the several hypocrisies that need to be admitted in the US reaction to the arrest warrant.

The first was exposed by Biden’s stumbling endorsement of the arrest warrant. "Well, I think it’s justified," Biden said of the warrant on Friday. "But the question is – [the ICC is] not recognized internationally by us either. But I think it makes a very strong point."

The US recognizes the justification of the ICC arrest warrants but does not recognize the ICC.

The second hypocrisy is more glaring still. The US says that the arrest warrant is "justified" and "makes a very strong point" while simultaneously protecting themselves from similarly justified warrants.

According to reporting by The New York Times, "The Pentagon is blocking the Biden administration from sharing evidence with the International Criminal Court in The Hague gathered by American intelligence agencies about Russian atrocities in Ukraine." Why would the US military oppose assisting the ICC to prosecute Putin since Biden says it is justified? Because the US military knows it is guilty of war crimes. "American military leaders oppose helping the court investigate Russians," according to former and current US officials, "because they fear setting a precedent that might help pave the way for it to prosecute Americans."

The entire question of whether the US should assist the ICC in investigating Putin for war crimes only comes up because of two other glaring acts of hypocrisy. The first is that the US has restrictions in place that limit cooperation with the ICC, since it does not recognize its jurisdiction. But recent legislative alterations have made it easier for the US to cooperate with the ICC specifically on Ukraine. The US is now permitted to cooperate with the ICC—whom it does not recognize—specifically in its Ukraine "investigations and prosecutions." Human Rights Watch has pointed out the hypocrisy that "restrictions still apply to other ICC investigations" and that "There is now a two-tiered system in which broader cooperation is allowed for Ukraine than in other equally worthy investigations."

The other hypocrisy that Human Rights Watch points out is that the US "objects to the court’s jurisdiction over American citizens and nationals from other non-member countries, even when they fall within the court’s jurisdiction." That implies that the US is making an exception for Ukraine and their ad hoc acceptance of jurisdiction. The Times says that the US takes "the position that the court should not exercise jurisdiction over citizens from a country that is not a party to the treaty, like the United States and Russia — even when the alleged war crimes take place in the territory of a country that did sign onto it."

Though the National Security Council has tried to mediate between the Pentagon and the State and Justice Departments who do want to give evidence to the ICC, "Secretary of Defense Lloyd J. Austin III continued to object."

There is yet one more remarkable hypocrisy in the US response to the arrest warrants. Biden says the ICC decision is justified and that it makes a strong point. But the US has historically fought to make the ICC unjustified and not strong.

In 1998, 160 countries attended a conference to formulate the Rome Statute of the ICC. Many states advocated for universal jurisdiction that would give the new court jurisdiction over crimes committed anywhere in the world. The US blocked that universal jurisdiction and insisted that the ICC have jurisdiction only over crimes committed in countries who voluntarily signed the Rome Statute. This was a loophole the US planted so that it could later exploit it. In 2000, President Clinton signed the Rome Statute, but did not send it to the Senate to be ratified. Two years later, President George W. Bush withdrew the signature. That ensured that the ICC could not prosecute Americans for war crimes.

Just to be sure, in 2002, the Bush administration enacted the American Servicemembers’ Protection Act, or the "Hague Invasion Act," as it came to be known. The act authorized the US to use "all means necessary . . . to bring about the release of covered U.S. persons and covered allied persons held captive by, on behalf, or at the request of the Court."

To be doubly sure, the Act banned "the provision of US military assistance . . . to the government of a country that is a party to the court." That prohibition was extended in 2004 by the Nethercutt Amendment" to include several other types of economic assistance. NATO countries and major non-NATO allies were exempt. For all other countries—unless the President deemed it important to the national security of the US– there was only one route to exemption. That was by entering a Rome Statute Article 98 agreement with the US ensuring that they agree no to surrender Americans to the ICC, "preventing the International Criminal Court from proceeding against United States personnel present in such country."

WikiLeaks revealed hundreds of cables that show how the US used the threat of sanctions to force countries into Article 98 agreements. A confidential December 2002 US cable from Honduras says "the US will help those countries that sign Article 98 agreements and cut aid to those that do not."

The US sought agreements from 77 countries who joined the ICC "to make extraditions of Americans to the Hague impossible." They exerted significant pressure. Romania’s foreign minister said that he "can’t remember anything they put so much weight or interest into.” The EU told member states that entering into an Article 98 agreement with the US "would be inconsistent" with their ICC obligations. Human Rights Watch said the US goal was "to exempt US military and civilian personnel from the jurisdiction of the ICC" and said that signing the "impunity agreements . . . would breach their legal obligations under the Rome Statute." In the end, at least 100 countries signed Article 98 agreements with the US.

The long list of sanctioned countries eventually boomeranged against the US, leading countries to look to Russia and China for help and impeding the US wars on terror and drugs. They were gradually dropped.

The US may believe the ICC is "justified" in issuing an arrest warrant for Putin, but it had tried to make sure the same will never happen to an American. In 2017, when the ICC tried to investigate US torture of terrorism detainees, the US imposed sanctions on court officials.

Putin deserves to be charged with war crimes because a war of aggression is a war crime. But he deserves the same sentence as practically ever post-World War 2 American president. The hypocrisy of US support for the ICC action against Putin is revealed by the long history of the US attempting to weaken the court and refusing even to recognize it. It is further revealed both by the reluctance to assist the court because of the precedent it could set against itself and by the selective willingness to support the court against American enemies but not against its "equally worthy" friends.

Ted Snider is a regular columnist on US foreign policy and history at Antiwar.com and The Libertarian Institute. He is also a frequent contributor to Responsible Statecraft and The American Conservative as well as other outlets.