Politics Foreign Affairs Culture Fellows Program

War Without Conditions

The State Department is playing with fire in its efforts to use the International Criminal Court against Russia.

International Criminal Court - ICC

In January 1943, Winston Churchill was stunned when FDR announced at Casablanca that the allies would seek “unconditional surrender” from the Axis powers. Churchill would later privately remark that Roosevelt’s demand, which the president blurted out in a press conference, would help drive the enemy into more desperate resistance. In fact, Nazi Propaganda Minister Joseph Goebbels immediately exploited FDR’s demand to exhort the German people into more war fanaticism. “If our Western enemies tell us,” Goebbels commented, “we won't deal with you, our only aim is to destroy you... how can any German, whether he likes it or not, do anything but fight on with all his strength?”

In the Ukraine conflict, the Biden administration is steadily rolling out its own version of “unconditional surrender” diplomacy against Moscow, guaranteed to harden Russia’s military and people for a longer war. The State Department is leading a campaign of individually charging Vladimir Putin, along with other Russians officials and soldiers, with war crimes. Coordinated with the International Criminal Court (ICC), State’s initiative against Moscow is a radical diplomatic step, more intense and irrevocable than the tactic of applying economic and visa sanctions. Washington’s unwise Ukraine strategy continues to aim for a decisive victory over Russia, closing off options for finding a way to end Putin’s war.


Secretary of State Antony Blinken announced on February 18, “I have determined that members of Russia’s forces and other Russian officials have committed crimes against humanity in Ukraine.”  Indicating that Washington would pursue such criminals even after some kind of ceasefire, Blinken added: “There can be no impunity for these crimes. All those responsible must be held accountable.  As today’s determination shows, the United States will pursue justice for the people of Ukraine for as long as it takes.”

Right in step, on March 17, the ICC issued warrants for the arrest of Putin and Maria Lvova-Belova, who serves as Russia’s Commissioner for Children’s Rights and is charged with the war crime of unlawful deportation and transfer of children from Ukraine to the Russian Federation. The court explained that normally such warrants are kept secret, but in this case, they were being made public to discourage others from committing similar acts. It explained that both Putin and Lvova-Belova bore individual criminal responsibility “for having committed the acts directly, jointly with others and/or through others.” Presumably, the ICC has many other indictments of Russians that remain secret.

Next, President Biden spoke from the same script, remarking the ICC’s case against Putin was “justified,” and adding that the Russian president had “clearly committed war crimes.” In one word of caution, however, Biden pointed out the United States, like Russia, did not acknowledge the international court’s authority to act against its own nationals.

In fact, there has been an interagency dispute in Washington with the Department of Defense blocking any U.S. policy of sharing intelligence with the ICC about Russian atrocities committed in Ukraine. The Pentagon believes that, consistent with past U.S. policy, providing the ICC with operational information that might result in criminal charges against Russian soldiers sets a bad precedent for situations in which the American military is similarly engaged in combat.  


Behind this Washington interagency squabble lies a long history of political dispute within Congress and the U.S. government over the purpose of the ICC, and whether it should even exist. On the one side are Washington multilateralists, mainly entrenched in the State Department, think tanks, and universities, who envision an active ICC role in global affairs. On the other side are conservatives and other skeptics of global projects who strive to keep America from becoming entangled in yet another overreaching international organization with an agenda potentially hostile to U.S. interests.

The idea of a supranational criminal court had been kicked around by international jurists for over a century, until finally a 1998 treaty, called the Rome Statute, laid the foundation for a standing international court that could investigate, indict, and adjudicate charges of war crimes, genocide, and crimes against humanity. Through the treaty, the ICC came to be a permanent international organization with career staff, resources, and an ongoing mission. Like the United Nations, it carries all the expected policy baggage: unaccountable officials and lawyers whose quest to pursue justice often entails expanding and abusing their original authority. There are currently 123 countries party to the Rome Statue (but not India or China).

Most Washington policymakers never seriously contemplated accepting ICC jurisdiction over the actions of U.S. officials and soldiers, although many viewed the court as a useful tool to pursue international outlaws. Disappointed that President Bill Clinton even signed the treaty (although he declined to submit it for Senate ratification), conservatives in Congress pushed back, passing the American Service-Members’ Protection Act of 2002, which blocked any ICC effort to investigate or prosecute U.S. personnel. The act also restricted working with the ICC, such as providing American intelligence to assist court investigations. In 2017, when aggressive ICC lawyers started investigating American soldiers in Afghanistan, the Trump administration hit back hard, applying sanctions against the court officials involved, leaving a stinging reminder that the United States had never recognized the court’s jurisdiction.

One line of analysis in Washington has concerned the extent to which the United States should assist the ICC in pursuing international outlaws. Some policymakers have argued that, on a limited, case-by-case basis, U.S. diplomatic goals can be advanced by aiding the court to pursue international criminals, but only from countries that were 1) parties to the treaty and 2) did not have their own domestic capacity to investigate and carry out prosecutions. Starting with the Clinton administration and resuming during the Obama years, Washington multilateralists have been angling for new ways to build out this kind of collaboration.  

The arrival of the Biden administration and Putin’s invasion of Ukraine have now pushed Washington’s cooperation with the ICC into a radical new era. In crafting its war-crimes strategy, the Biden team saw the court as the perfect international platform, one that invoked Nuremberg prosecution principles, with more reach than any single country’s national laws and with the unbridled institutional ambition needed to unceasingly pursue Putin and other Russians.

Most Americans are aware of the White House’s decision to pour billions of dollars in military and foreign assistance into Ukraine, but administration efforts to expand U.S. cooperation with the ICC have received less attention. The architects of the war-crimes diplomacy passed new legislation that empowered new U.S.-ICC partnerships against Russia. The Ukraine Invasion War Crimes Deterrence and Accountability Act specifically tasked the U.S. intelligence community with gathering information on Russian atrocities committed in Ukraine with the goal to use this information as the basis for criminal prosecutions either at the ICC or in national courts.

South Carolina Senator Lindsey Graham, archfoe of Russia, signed on with the Biden administration, leading the charge to “rehabilitate” the ICC for many conservative Republicans and to enact new legislative paths around the restrictions of the American Service-Members’ Protection Act. In March of 2022, Graham introduced Senate Resolution 546 that called for supporting war-crime charges against Putin and Russian officials. Graham led a delegation in November 2022 to The Hague, ICC headquarters, to bless the court’s work and encourage its Nuremberg-style war-crimes approach against Moscow.

Armed with the new legislation, it now appears as if the State Department has triumphed in the interagency struggle over the Pentagon. In a recent speech at Catholic University, Beth Van Schaack, U.S. Ambassador-at-Large for Global Criminal Justice, announced the State Department was launching efforts “to document, investigate, and prosecute over 80,000 potential war crimes—a number that does not yet include consideration of the horrors that are unfolding in areas still under Russia’s occupation or control.”

In her remarks, the Ambassador underscored that the Russian perpetrators of this astonishing number of alleged war crimes will be hunted down with the same vigor that was directed at Nazi henchmen:

This is truly a historic moment in international criminal law. Just as the Allies at the end of the Second World War advanced the imperative of justice and ushered in a new era of accountability for the worst imaginable crimes, it falls to all of us to ensure that the promises of Nuremberg are not mere history. The United States remains unwavering in its support of the government and people of Ukraine as they defend their country and their freedom. The people of Ukraine deserve justice, and we must all remain united in holding those responsible to account, no matter how long that takes.

Because ICC is supposed to be a court of last resort, Ambassador Van Schaack specified that “the majority of cases arising out of this war will be prosecuted in Ukrainian courts,” leaving the impartial observer to ponder the kind of due process notoriously corrupt Ukrainian courts will accord Russian  defendants. For that matter, how many of the “80,000 potential war crimes” might in fact have been perpetrated by Ukrainians, and where will they be prosecuted? How will the Department of Justice ensure that foreign courts, provided U.S. intelligence for prosecutorial evidence, adhere to American due process standards?

Yes, the United States must strongly condemn atrocities. Putin deserves a hard rebuke, and he is getting it on the battlefield, but U.S. diplomacy should work to contain the Ukraine war and then push for an end to the conflict. Instead, the State Department is out pursuing a dangerous expansion of the ICC’s authority in order to prosecute thousands of accused Russians in Ukraine’s corrupt court system. This policy is not going to end well.   

The Biden administration’s war-crimes strategy is shortsightedly empowering yet another dubious international organization that will not hesitate to try to run roughshod over American legal traditions. He should know better, but Senator Graham is playing with political fire: Just as the ICC in 2017 tried to expand its mandate to investigate American soldiers in Afghanistan, the newly emboldened court will surely widen its scope. For example, will the ICC indict Russian Foreign Minister Sergey Lavrov? After all, Nazi Foreign Minister von Ribbentrop was hanged at Nuremberg for his diplomatic role in helping to plan an aggressive war. The ICC is not to be trusted.


Become a Member today for a growing stake in the conservative movement.
Join here!
Join here