Why the U.S. can't lead on punishing Russia's war crimes

Vladimir Putin is a war criminal. That's not a strict legal judgment — not yet, at least — but the evidence keeps growing. Ukraine officials over the weekend said they had discovered a mass grave in the Kyiv suburb of Bucha, and journalists visiting the city described its streets as strewn with the bodies of civilians apparently executed by retreating Russian forces.

"This is genocide," Ukrainian President Volodymyr Zelensky said Sunday.

Outside observers are calling for prosecutions. Carla Del Ponte, a former war crimes prosecutor, over the weekend called for authorities to issue an international arrest warrant against Putin. That would probably be fine with the United States: President Biden has also called the Russian leader a "war criminal," and Secretary of State Anthony Blinken followed up last month with the announcement that the American government has formally determined that "members of Russia's forces have committed war crimes in Ukraine."

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"As with any alleged crime," Blinken said in the official statement, "a court of law with jurisdiction over the crime is ultimately responsible for determining criminal guilt in specific cases."

The U.S., though, is ill-positioned to help bring about that justice — not without cloaking itself in immense hypocrisy, at any rate.

American leaders have spent the last two decades undermining the International Criminal Court, which prosecutes war crimes, genocide, and other crimes against humanity. The U.S. has used intimidation, sanctions and the heft of its hegemonic power to guarantee that none of its soldiers or officials will ever be brought before the court, no matter how deserving they might be.

"The United States is the number one advocate of international criminal justice for others," Princeton University's Richard Falk wrote in 2012. But the U.S. also "holds itself self-righteously aloof from accountability."

A short history: The U.S. under President Bill Clinton was initially a signatory to the treaty that created the court. "We do so to reaffirm our strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity," Clinton said on his way out of office in 2000. "We do so as well because we wish to remain engaged in making the ICC an instrument of impartial and effective justice in the years to come."

That didn't happen. The treaty was never submitted to Congress.

And in 2002, President George W. Bush — who was already contemplating an invasion of Iraq — "unsigned" the treaty, saying the U.S. would not submit to the ICC's jurisdiction or submit to its orders. But the U.S. didn't just go absent from the treaty: Later that year, Bush signed the American Service-Members Protection Act, which made it illegal for U.S. authorities to cooperate with the court in any way — and which authorized "all means necessary and appropriate" to rescue any American or allied official from the court's clutches, if it ever came to that. Human Rights Watch dubbed the law the "Hague Invasion Act."

Even that wasn't enough impunity. In 2020, the Trump administration levied sanctions against ICC prosecutors. The Biden administration later reversed the measures, but the message was sent: Don't even think about investigating or charging Americans with war crimes. The message was clearly received.

There has been plenty to investigate. The ICC's existence has coincided almost precisely with America's "forever war" era. During the last 20 years, the U.S. has launched an unprovoked war of aggression against Iraq; tortured prisoners at Abu Ghraib, Guantanamo Bay and black sites around Europe; bombed civilians in Syria; and committed countless other acts worthy of scrutiny. Accountability has been rare. Gina Haspel ordered the destruction of evidence of torture and then was named CIA director. Others received pardons and were transformed into heroes for the Fox News set. We haven't always been the good guys.

Opponents of the ICC have claimed the institution interferes with American sovereignty, and that the ICC's trial process has insufficient protections for the accused. Mostly, though, it's difficult to escape the sense that America won't submit to the court's jurisdiction simply because it doesn't have to. What's the point of being the most powerful country on the planet if you have to follow the world's rules? The ICC is for other, smaller, weaker countries.

None of this justifies Putin's actions, of course. But it does suggest that America is seeking a kind justice to which it won't itself submit. And that means the U.S. — which has otherwise done an excellent job of managing the present crisis — can't provide much leadership in the matter of Russia's alleged war crimes against Ukraine.