The Department of Defense is reportedly blocking the Biden administration from sending evidence of Russian war crimes in Ukraine to the International Criminal Court in the Netherlands, despite Congress passing looser restrictions for the U.S. government to help the international body in its prosecution of war crimes.

Military leaders, including Secretary of Defense Lloyd Austin, are among those opposed to providing such evidence to the ICC, the international body in charge of prosecuting atrocities and genocide, according to a New York Times report.

Pentagon officials reportedly fear it would create precedent for the court to charge United States citizens, which has stood as a redline for policymakers since the court’s inception. Intelligence agencies, the State Department and Justice Department, meanwhile, have all shown support for evidence sharing.

And while President Joe Biden has yet to come to a conclusion on the issue, atrocity prevention advocates are speaking out, arguing that the Pentagon belied its concerns over the impact of evidence sharing on the prosecution of U.S. citizens — or how the court even operates.

When the ICC was founded in 1998, the U.S. fought to prevent the prosecution of any citizens in countries that were not party to the Rome Statute, the founding treaty of the international court. The U.S. government lost that debate.

Since then, any person, regardless of citizenship, who is charged with a war crime in a country that has signed onto the ICC can be investigated and prosecuted by the court, making Sec. Austin’s concerns moot, advocates argue.

“It’s just not how it works,” Adam Keith, the director of accountability at Human Rights First, told Military Times. “The issue of whether the court has jurisdiction in situations [involving U.S. citizens] was settled 25 years ago.”

Keith referenced a 2012 instance in which the court issued arrest warrants for Rwandan rebel leaders Sylvestre Mudacumura and Bosco Ntaganda for alleged war crimes committed in the Democratic Republic of Congo.

While the pair were citizens of Rwanda, a nation that does not recognize the ICC’s jurisdiction, the court could still prosecute because their crimes were committed in the DRC, a country which is a signatory to the international treaty.

In theory, an incident similar to the one involving Ntaganda and Mudacumura’s could happen to a U.S. citizen who commits a war crime in a country that has signed onto the Rome Statute, Keith said.

Kenneth Roth, the former executive director of Human Rights Watch, also argued in a tweet that the Pentagon was “flouting” the rest of the U.S. government by continuing to block evidence sharing between the Pentagon and ICC.

In 2001, Congress passed the American Servicemembers’ Protection Act, which restricted support for the ICC and prevented U.S. forces from taking part in peacekeeping missions. Congress later amended the law, however, and eased restrictions in the fiscal year 2023 appropriations bill, which passed in December. The U.S. government could aid the ICC “solely to investigations and prosecutions of foreign persons for crimes ... related to the [s]ituation in Ukraine,” the legislation read.

Ukraine’s Prosecutor General Andriy Kostin announced on Feb. 1 that Ukrainian authorities had counted more than 65,000 war crimes since the invasion began last year. Additionally, Kostin estimated that 14,000 children in eastern Ukraine have been forced into adoption in Russia.

Images from suburbs north of Ukraine’s capital city of Kyiv in the early days of the invasion showed men who had been summarily executed in the street. Reports also emerged of Russia firing missiles indiscriminately at populated areas with little regard for civilian casualties.

To date, more than 8,200 civilians have been killed and 13,700 wounded in the conflict, according to a March 13 report by the United Nations’ Office of the High Commissioner for Human Rights.

Such atrocities, along with the Pentagon’s resistance to evidence sharing, is not a good look for the U.S. on the international stage, Keith said.

“Keeping the [U.S.] aloof from the ICC in situations like this doesn’t provide the protection that DoD wishes it would,” Keith said. “But it does tie the U.S. government’s hands in Ukraine ... where the [U.S.] should be helping provide accountability for mass atrocity. It also just makes harder to take seriously the idea that the [U.S.] is committed to justice or to the ‘rules-based international order.’”

Zamone “Z” Perez is a reporter at Military Times. He previously worked at Foreign Policy and Ufahamu Africa. He is a graduate of Northwestern University, where he researched international ethics and atrocity prevention in his thesis. He can be found on Twitter @zamoneperez.

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