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, according to current and former officials briefed on the matter.
American military leaders oppose helping the court investigate Russians because they fear setting a precedent that might help pave the way for it to prosecute Americans. The rest of the administration, including intelligence agencies and the State and Justice Departments, favors giving the evidence to the court, the officials said.
President Biden has yet to resolve the impasse, officials said.
The evidence is said to include details relevant to an investigation the chief prosecutor of the International Criminal Court, Karim Khan, began after Russia’s invasion of Ukraine a year ago. The information reportedly includes material about decisions by Russian officials to deliberately target civilian infrastructure and to abduct thousands of Ukrainian children from occupied territory.
In December, Congress modified longstanding legal restrictions on American help to the court, allowing the United States to assist with its investigations and eventual prosecutions related to the war in Ukraine. But inside the Biden administration, a policy dispute over whether to do so continues to play out behind closed doors.
[...] In late December, lawmakers enacted two laws aimed at increasing the chances that Russians would be held accountable for war crimes in Ukraine.
One was a stand-alone bill expanding the jurisdiction of American prosecutors to charge foreigners for war crimes committed abroad. The other, a provision about the International Criminal Court embedded in the large appropriations bill Congress passed in late December, received little attention at the time.
But that provision was significant. While the U.S. government remains prohibited from providing funding and certain other aid to the court, Congress created an exception that allows it to assist with “investigations and prosecutions of foreign nationals related to the situation in #Ukraine, including to support victims and witnesses.”
Despite that legal change and Congress’s signal of support, the Pentagon has stood firm that the United States should not help the International Criminal Court investigate Russians for their actions in Ukraine since Russia is not a party to the treaty that established the court.
That resistance has attracted criticism both inside and outside the executive branch. Some legal specialists contend that there is scant benefit to hewing to that position because the rest of the world essentially rejects that interpretation.
