On December 31, 2000, the last day the Rome Statute creating the ICC was open for signature, President Clinton signed for the United States. The U.S. demanded several conditions to membership, including being allowed to use its U.N. Security Council veto to stop any ICC investigation it opposed. The ICC refused. President Bush withdrew the U.S. signature and it remains a non-party to-date. Several reasons have been advanced by Congress and successor administrations for not joining.
On March 17, 2023, after an investigation conducted by ICC chief prosecutor Karim Khan, the ICC issued arrest warrants for Vladimir Putin, President of the Russian Federation, and Maria Lvova-Belova, Commissioner for Children’s Rights in the Putin administration. The charges are War Crimes, namely forced and unlawful deportation and transfer of children from areas of Ukraine occupied by Russia during wartime, across national borders to Russia. Ukraine claims that over 14,700 children have been deported to Russia, with more than 1,000 of them from the port city of Mariupol. A U.S. backed Yale University study found in February of 2018 that Russia at that time held at least 6,000 children in at least 43 facilities as part of a large-scale systematic network.
This is the first time the ICC has charged a head of state who is also a U.N. Security Council member. The ICC does not recognize diplomatic immunity for acts of sitting heads of state.
ICC President Piotr Hofmanski made a video statement which called for the international community to enforce the arrest warrants. U.S. Attorney General Merrick Garland announced specific technical and manpower assistance to Ukraine to conduct its own prosecution of Putin.
President Biden has stated he believes Putin has clearly committed war crimes and the ICC was justified in charging him. But the United States to-date has not yet offered material assistance of any kind to the ICC and has announced no further steps to directly aid or support the ICC in its prosecution.
In light of the Putin arrest warrants, has the time now come for Congress and the Biden Administration to change course? Should it overcome the opposition of the Department of Defense and members of Congress, and remove legislation which limits direct assistance to the ICC? Should the U.S. aid the ICC in its prosecution of Putin as a war criminal? Has the time also come for the United States to take a step further and finally join 123 fellow nations to become an ICC member?
This paper examines the history of war crimes prosecutions and U.S. participation. It reviews the history of ICC prosecutions, conduct of ICC prosecutors, and problems providing adequate redress to victims (especially in Africa). It outlines critics’ objections to the prosecutions, including the Bush, Obama, Trump and Biden Administration reactions. It discusses many new efforts of the Biden Administration in response to the Russian invasion of Ukraine and resulting ICC indictments.
It then examines current strong arguments in favor and opposed to the U.S. joining the ICC. What are the underlying reasons the U.S. has not joined? Are they still credible? Do they make sense today in light of the Russian invasion of Ukraine and ICC indictments of Vladimir Putin and Maria Lvova-Belova? Or do new U.S. steps to combat Russian war crimes prove that now there is no need to join the ICC? Should the U.S. join or proceed on its own? It’s a close call. The paper offers an answer to that difficult question.