Although the U.S. was a supporter of the Rome Statute that created the ICC, it never ratified the statute. Thus, like Russia, the U.S. is not one of the ICC’s 123 State Parties—which makes it likely that Putin and Russia’s supporters would question why Biden is pushing for an investigation that the U.S. doesn’t even support for its own citizens.
“The U.S. doesn’t participate [as a State Party] and wouldn’t allow its soldiers to be tried in this manner. That’s certainly a sticking point, and no doubt Russian media and diplomats will try to capitalize on that,” Michael Kimmag, a history professor at the Catholic University of America who used to hold the Russia/Ukraine portfolio at the U.S. Department of State, told Newsweek.
Up until 2022, the U.S. has argued that the ICC cannot prosecute nationals of a state that has not joined the court—one of the main reasons why U.S. service members were not tried by the ICC for alleged violations in Afghanistan and Guantanamo Bay.
Now Russia is using the same argument that the U.S. has long touted.
“Absolutely, Russia will point to this,” Rebecca Hamilton, a law professor at American University, agreed. “They’re going to point to anything in order to prevent accountability for the atrocities that their forces are committing.”
Since Russia also never ratified the Rome Statute, the country is rejecting the idea that the ICC can prosecute Russian nationals for crimes committed in Ukraine, even if Ukraine—which is also not one of the ICC’s State Parties—has granted the court jurisdiction to prosecute war crimes committed on its territory.
As Leila Sadat, the ICC prosecutor’s special adviser on crimes against humanity, told Newsweek: “It’s a problem of double standards.”
“It is much easier now for the Russian Federation to poke at the U.S. and say, ‘Oh come on, this is completely self-serving.’ Whereas had the U.S. supported the court all along, it would be less able to do so,” Sadat explained.
Experts say the decision made by the U.S. to keep its distance from the court reflects the nation’s larger foreign policy trend, which is predicated on the logic that because the U.S. is strong on international law, it doesn’t need an external body to adjudicate its activities on foreign soil.
However, this argument has led scholars to ask what issue the U.S. has against external scrutiny if it is so confident in its own accountability processes, especially since supporting the ICC as a State Party would be consistent with other international matters the country supports.
“Sometimes what folks forget is that these are the worst crimes. They shock the conscience of humankind … It’s the kind of stuff we’re seeing on our TV and in the newspapers right now of people shot with their hands tied behind their back and maternity hospital being bombed,” Sadat said.
While Sadat would like to see a consistent and steady approach to the court instead of the U.S.’ ebb and flow, the ICC welcomed the support from Biden and Congress to conduct an investigation in Ukraine.
The ICC only needs Ukraine’s permission to move forward with an investigation, and Hamilton said the fact that the U.S. hasn’t joined the ICC won’t undermine the court’s strength as an international institution. However, it “makes the U.S. look sort of isolated and it becomes problematic when the U.S. is out there calling for accountability that it hasn’t always supported.”