The Department of Defense drew the ire of lawmakers on Wednesday when a senior State Department official confirmed the Pentagon has acted as a roadblock in the United States government’s cooperation with an international organization that prosecutes war crimes.
Beth Van Schaack, who serves as the U.S. Global Criminal Justice ambassador-at-large, testified Wednesday before the Senate Foreign Relations Committee on possible war crimes perpetrated by Russia during its invasion of Ukraine.
Van Schaack spent much of the session answering lawmakers’ questions about the Pentagon’s resistance to cooperating with the International Criminal Court.
Questioned by Sen. Chris Van Hollen (D-Md.) about whether the Pentagon was the agency keeping the rest of the federal government from reaching a consensus on ICC cooperation, Van Schaack referenced previous congressional testimony from Defense Sec. Lloyd Austin. Van Hollen countered, asserting that the query was “a yes or no answer.”
Van Schaack answered “yes,” acknowledging that the Pentagon has kept the rest of the federal government from reaching consensus over war crimes evidence sharing.
The ranking member of the committee, Sen. James Risch (R-Idaho), took aim at the Pentagon’s position against evidence sharing, saying no one from the Pentagon contacted lawmakers as they were writing the legislation to allow increased cooperation with the ICC.
“We’re not going to tolerate an agency saying, ‘Well, we don’t like that law, so we’re not going to enforce it,’” Risch said during the hearing. “When you’re dealing with the ICC, you’re always cognizant of the fact that there could be pitfalls, there could be a problem putting U.S. servicemen in jeopardy.
“We scrupulously avoided that and had specific language to see that didn’t happen,” he added.
The Pentagon did not respond to Military Times’ request for comment as of publication. The minority office of the Senate Foreign Relations Committee also did not respond to a question from Military Times about what actions are being considered by lawmakers to force the Pentagon to provide evidence of war crimes to the ICC.
Pentagon officials reportedly fear doing so would create precedent for the court to charge U.S. citizens, which has stood as a redline for policymakers since the court’s inception.
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.
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. Under the law, the U.S. government can aid the ICC with investigations and prosecutions “of foreign persons for crimes ... related to the [s]ituation in Ukraine,” the legislation read.
“The legislation is very carefully crafted — it’s surgical in fact,” Van Schaack told lawmakers. “All the other protections of the American Servicemembers’ Act remain in place. ... There are ways we can provide assistance without jeopardizing U.S. personnel.”
Adam Keith, the director of accountability at Human Rights First, supported lawmakers’ desire to help the ICC as it prosecutes Russian war crimes in the Ukraine conflict.
“It’s good that Congress is pressing the administration to support the ICC’s investigation of war crimes in Ukraine,” Keith told Military Times in an email. “It’s time for President Biden to finally push through the embarrassing impasse on this issue and put the U.S. government’s weight behind one of the main institutions providing justice for Russian war crimes.”
Zamone “Z” Perez is a rapid response reporter and podcast producer at Defense News and 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.