U.S. Demands Russian War Crime Prosecution While Neglecting Its Own Accountability

The Defense Department promised a memo on mitigating U.S.-inflicted civilian harm in April. With the deadline passed, Congress members call for an ICC investigation — of Russia.

KABUL, AFGHANISTAN -- AUGUST 30, 2021: A man grieves during a mass funeral for the 10 civilians that was killed in a U.S. drone airstrike, in Kabul, Afghanistan, Monday, Aug. 30, 2021. (MARCUS YAM / LOS ANGELES TIMES)
Relatives and friends grieve during a funeral for the 10 civilians, mostly children, who were killed by the U.S. military in a botched drone strike, in Kabul, Afghanistan, on Aug. 30, 2021. Photo: Marcus Yam/Los Angeles Times via Getty Imag

When allegations of Russian atrocities against Ukrainian civilians emerged in the United States, Congress and the White House hit the ground running. They’ve since engrossed themselves in scouring through the legal avenues to hold the Kremlin accountable: war crime tribunals, asset seizures, and sanctions — including collective punishment of the Russian people.

Allegations of American atrocities during the so-called global war on terror have hardly evoked the same desperate calls for justice. The U.S. government has long met international demands for accountability with hostility. Starting late last year, the New York Times’s explosive investigations into civilian deaths in botched U.S. airstrikes in the Middle East arrived just weeks before Russia’s invasion of Ukraine began. No requests for a war crimes tribunal were heard from Sen. Lindsey Graham, R-S.C., now the Senate’s biggest champion for an International Criminal Court, or ICC, investigation into Russia. And a new reform initiative the Defense Department launched in the exposé’s wake is delayed with minimal pushback from Congress.

The loss of life in Ukraine has been horrific. The United Nations announced Tuesday that it can confirm Russia’s war has killed more than 3,300 civilians since the invasion began February 24, though it expects that the actual figure is thousands higher. For reference, the U.S. war on Iraq killed nearly 8,000 civilians in the first three months following the March 2003 invasion, the Iraq Body Count estimates.

“Like most of the civilized world, I have been absolutely horrified by the … assaults against Ukraine on residential buildings, schools, synagogues and churches, and even critical infrastructure including nuclear power plants,” Sen. Ben Cardin, D-Md., chair of Congress’s Commission on Security and Cooperation in Europe, said during a hearing last week. Citing in particular the discovery of hundreds of bodies, some of whom appeared to be summarily executed, in the Ukrainian city of Bucha, Cardin argued: “The scale and pattern of these crimes clearly suggests to me that war crimes are being committed by the Russian military on the orders of Vladimir Putin. Mr. Putin must be held accountable for his unprovoked bloody attacks on the Ukrainian people.”

A number of countries and international entities have begun investigations to prepare for potential war crime prosecutions. Ambassador-at-Large for Global Criminal Justice Beth Van Schaack told the commission that the U.S. is supporting inquiries by the United Nations, ICC, and any national court around the world that may have jurisdiction, including the Ukrainian government, which a State Department team is already advising. Graham told The Intercept last week that he’s talking to the White House about sending $15 million to aid the Ukrainian prosecutor’s efforts.

“We are committed to robust law enforcement and diplomatic cooperation to ensure that there is no safe haven for those who might commit atrocities,” Van Schaack said during the commission’s hearing.

The U.S. is also reviewing the extent of its own legal authorities. In the House of Representatives, Rep. Tom Malinowski, D-N.J., sought to allow the White House to seize Russian oligarchs’ assets and give them away to Ukraine, but the American Civil Liberties Union helped kill it as a result of due process concerns. In the Senate, Sens. Richard Durbin, D-Ill., and Graham are exploring changes to the law to enable domestic prosecutions of noncitizens who may have committed war crimes overseas.

Graham has also been cheering on the ICC’s abilities to investigate war crimes after Republicans have spent years deriding the court. (The Trump administration sanctioned ICC personnel investigating alleged U.S. war crimes in Afghanistan and at CIA sites overseas.) In a change of attitude, the Senate unanimously passed a resolution led by Graham earlier this year pledging support for any ICC inquiry into allegations of Russian atrocities.

But the U.S. has imposed limitations on the assistance it can provide the ICC, which it is not party to, in an attempt to evade accountability. The 2002 American Service-Members’ Protection Act, for example, prevents the U.S. from sharing intelligence to support ICC inquiries in order to safeguard U.S. troops from prosecution. But there’s some wiggle room. The Justice Department determined over a decade ago, as the New York Times reported, that the U.S. can provide help for “particular cases.” And Graham told The Intercept that he’s looking to change current regulations, but only “for the limited purpose of helping ICC with information we have about Russian activity in Ukraine.”

Meanwhile, after the Commission on Security and Cooperation in Europe hearing, Cardin told The Intercept: “I’m not too concerned physically where the trials take place. I want to make sure there’s accountability.” Asked if the U.S. needs to modify laws to allow for intelligence sharing with the ICC, Cardin said he asked if there’s anything more to do, and he’s been told they have all the authority they need but “if they need anything further we’ll be glad to give it to them.”

EDITORS NOTE: Graphic content / TOPSHOT - Ukraine's Prosecutor General Iryna Venediktova (C) and Prosecutor of the International Criminal Court, Britain's Karim Khan (R), visit a mass grave on the grounds of the Church of Saint Andrew in Bucha, on the outskirts of Kyiv, on April 13, 2022, amid Russia's military invasion launched on Ukraine. - A visit by the International Criminal Court's chief prosecutor to Bucha -- the Kyiv suburb now synonymous with scores of atrocities against civilians discovered in areas abandoned by Russian forces -- came as the new front of the war shifts eastward, with new allegations of crimes inflicted on locals. (Photo by FADEL SENNA / AFP) (Photo by FADEL SENNA/AFP via Getty Images)

Ukraine’s Prosecutor General Iryna Venediktova, center, and Prosecutor of the International Criminal Court, Britain’s Karim Khan, right, visit a mass grave on the grounds of the Church of Saint Andrew in Bucha, on the outskirts of Kyiv, Ukraine, on April 13, 2022.

Photo: Fadel Senna/AFP via Getty Images

While the U.S. races to hold Russia to account, very few American lawmakers have turned the scrutiny inward. A notable exception is Rep. Ilhan Omar, D-Minn., who led several of her progressive colleagues last month calling for the U.S. to join the ICC and repeal the 2002 law that restricts U.S. assistance to the court’s investigations. But otherwise, the United States has largely neglected to look at itself in the mirror.

In its groundbreaking series, the New York Times revealed earlier this year that the U.S. has killed thousands of civilians in botched airstrikes throughout the Middle East since 2015. In July 2016, the publication found, the U.S. intended to bomb Islamic State “staging areas” in northern Syria but actually massacred more than 120 villagers seeking shelter. In March 2019, U.S. jets struck and killed 70 people in the eastern Syrian town of Baghuz when the operators of separate American drones flying overhead knew them to be mostly women and children. Repeatedly, retroactive assessments by the Pentagon were downplayed and resulted in no disciplinary action, and the U.S. made fewer than 12 condolence payments to survivors.

Following these discoveries, Defense Secretary Lloyd Austin, a retired four-star Army general who commanded U.S. military operations in the Middle East from 2013 to 2016, called for reform. “We strive diligently to minimize the harm that armed conflict visits upon civilian populations, but we can and will improve upon our efforts to protect civilians,” Austin wrote in a January memo to Pentagon leadership. “We will revisit the ways in which we assess incidents that may have resulted in civilian harm, acknowledge the harm to civilians that resulted from such incidents, and incorporate lessons learned into the planning and execution of future combat operations and into our tactics, techniques, and procedures.”

In the January 27 memo, Austin called for an action plan within 90 days of issuance. But it’s not yet finished. During a House Armed Services Committee hearing in early April, Austin said the review was about 30 days in. Defense Department spokesman Lt. Col. César Santiago-Santini told The Intercept that the 90-day process remained ongoing. (Asked by Rep. Sara Jacobs, D-Calif., whether the Pentagon would take another look at cases of civilian harm that were dismissed, Austin also said during the hearing that “at this point, we don’t have an intent to relitigate cases from before.”)

Marking the original three-month deadline, Sen. Elizabeth Warren, D-Mass.; Rep. Ro Khanna, D-Calif.; and Rep. Jason Crow, D-Colo. — who are members of the armed services committees — introduced two new bills in late April that would codify several of Austin’s directives into law. Asked what motivated her to propose these measures now, Warren told The Intercept: “The stories keep mounting up about civilian casualties, and the inability or outright refusal of the Department of Defense to make a careful accounting.” Referring to Austin’s memo, she added, “I want to see some results.”

In an email to The Intercept, Annie Shiel, a senior adviser at the Center for Civilians in Conflict who endorsed the new legislation, explained that having involvement from Congress can help guarantee the success of the Pentagon’s reforms. “And while it’s encouraging that civilian harm is being recognized as a high priority at the Department,” she said, “success will require sustained engagement not only from the [Defense Department], but also from Congress — to support the Secretary’s ongoing efforts, to hold the Department accountable for its commitments, and to fill critical remaining gaps.” (The bills will ensure a new center of excellence to advance civilian protection measures, for instance, will outlast the current administration.)

In the Senate, Warren’s bills have the support of Democratic Whip Dick Durbin of Illinois and Sens. Jeff Merkley, D-Ill., and Bernie Sanders, I-Vt. But otherwise, her efforts to keep pressure on the Pentagon weren’t top of mind for influential legislators. Sens. Jack Reed of Rhode Island and James Inhofe of Oklahoma, the most powerful Democrat and Republican on the Senate Armed Services Committee respectively, told The Intercept last week that they hadn’t reviewed the proposals yet. They’ll play a pivotal role in determining whether the bills make their way into the annual defense policy bill, which would be the likeliest legislative vehicle to pass them into law.

Den Haag, Netherlands, 29.03.2022:  general view outside of the International Criminal Court (ICC) on March 29, 2022 in Den Haag, Netherlands. (Photo by Alex Gottschalk/DeFodi Images via Getty Images)

The International Criminal Court on March 29, 2022, in The Hague, Netherlands.

Photo: Alex Gottschalk/DeFodi Images via Getty Images

In an opinion column for MSNBC last month, Middle East expert Trita Parsi, executive vice president at the Quincy Institute for Responsible Statecraft, laid out a compelling argument for why many countries in the Global South have not joined the U.S.’s efforts to sanction Russia in response to its war on Ukraine. “Many of these states also see flagrant hypocrisy in framing the Ukraine war in terms of the survival of the rules-based order,” he wrote. “From their vantage point, no other country or bloc has undermined international law, norms or the rules-based order more than the U.S. and the West.”

The hypocrisy and excuses for the U.S.’s unwillingness to submit to a fraction of the scrutiny it’s now demanding of Russia were perhaps most blatant in a Washington Post op-ed last month by former Democratic Sen. Christopher Dodd of Connecticut and George W. Bush administration attorney John Bellinger III.

“The United States can help the court in appropriate cases while still strongly opposing ICC investigations (including of U.S. personnel) that do not meet the court’s strict threshold requirements,” Dodd and Bellinger wrote. “The ICC was created to prosecute only the most serious international crimes that are not addressed by the nations that commit them, not to investigate every allegation of misconduct.”

Of course, the U.S. has already managed to dodge ICC inquiries. When the court’s chief prosecutor reopened an investigation into war crimes in Afghanistan last year, it dropped allegations against the U.S. and its allies, choosing to focus only on the Taliban and the Islamic State. Just a few weeks before, the U.S. ended its 20-year war in Afghanistan with a drone attack that the Defense Department initially called a “righteous strike” against the Islamic State. The Pentagon later acknowledged the attack hit and killed 10 civilians, including seven children.

Join The Conversation