Durbin & Graham Continue To Press The Biden Administration To Support The ICC’s Investigation Into Atrocities In Ukraine
In the FY23 Omnibus, Congress provided the Administration with enhanced authority to assist the ICC in its efforts to prosecute war crimes and crimes against humanity committed in Ukraine
WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee and Co-Chair of the Senate Ukraine Caucus, and U.S. Senator Lindsey Graham (R-SC), Ranking Member of the Senate Judiciary Committee, today sent a letter to President Joe Biden once again urging his Administration to support the International Criminal Court’s (ICC) investigation into the atrocities committed in Ukraine. Durbin and Graham previously wrote to President Biden in March to emphasize the urgency of aiding the ICC’s investigation into Russian atrocities in Ukraine. Yet the Administration—reportedly at the behest of the Department of Defense—has still failed to implement the additional authorities provided to it by Congress last December. In addition to Durbin and Graham, Senators Bob Menendez (D-NJ) and Thom Tillis (R-NC) also joined the letter. The Senators requested a meeting with President Biden and Defense Secretary Lloyd Austin to discuss the matter as soon as possible.
“We write to express our continued support for standing by Ukraine as it defends itself and the rules-based international order upon which our own safety and security depend,” the Senators wrote. “Your leadership in rallying the international community and NATO in defense of Ukraine and in rejection of Russian tyranny has been critical.”
The Senators’ letter continues, “However, there is one important issue we have raised before that still requires your timely attention—ensuring that the United States’ is doing all that it can to hold the perpetrators of atrocities in Ukraine accountable. More specifically, despite congressional authorization to assist the International Criminal Court’s (ICC) investigation into Russian war crimes in Ukraine, your Administration still has not taken the important step of sharing critical intelligence with the ICC.”
In December, Congress enacted bipartisan changes in the law to enable the United States to provide more robust support to the ICC’s work to bring perpetrators of war crimes and crimes against humanity to justice. In the Fiscal Year 2023 (FY23) Omnibus, Congress provided the executive branch with greater flexibility to assist the ICC through information sharing, technical assistance, and financial support.
Despite the urgent need to send a message that perpetrators of atrocities will be held accountable fortheir crimes, recent reporting suggests that the Administration has not yet used this new authority to provide much-needed assistance to the ICC’s efforts and is, in fact, withholding evidence from the ICC over unrelated concerns.
“The U.S. reportedly has evidence in its possession, including evidence relating to Russia’s targeting of civilian infrastructure and abduction of thousands of Ukrainian children, that would help the ICC identify the perpetrators of these crimes. However, your Administration is withholding this evidence from the ICC over unrelated concerns that the Court might one day try to initiate unwarranted prosecutions of U.S. servicemembers. We understand that the United States’ unwillingness to share this key information with the ICC is causing partner nations to hold back as well,” the Senators wrote. “Despite your public condemnation of Russian crimes against humanity and war crimes in Ukraine, our current posture on the ICC sends a message to the world that parochial self-interested concerns, even where unfounded, take priority over seeking justice for Putin’s crimes.”
Their letter continues, “We believe it is possible to support credible investigations by the court without putting our own servicemembers at risk of prosecution, a position reaffirmed by international law and policy experts, including many in your Administration. That is why Congress passed—on a bipartisan basis—carefully crafted authorities for providing support to the ICC in appropriate circumstances. In a clear signal of Congress’s intent, these additional authorities include greater flexibility to share evidence with the court specifically in relation to the ICC’s Ukraine investigation.”
The Senators’ letter concludes, “It has been nearly six months since Congress provided your Administration with expanded authorities that it has yet to utilize. During that time, Ukraine’s Office of the Prosecutor General has documented more than 34,000 additional war crimes by Russian forces. The Ukrainian people cannot afford another day of delay. We urge you to find a path forward to ensure the United States of America is doing all it can to hold the perpetrators of atrocities in Ukraine accountable. We would like to meet with you and Secretary Austin to discuss the matter as soon as possible.”
In May, Durbin and Graham pressed Secretary of Defense Lloyd Austin to support the ICC’s investigation into the atrocities committed in Ukraine at a Senate Appropriations Subcommittee on Defense hearing.
Last month, a bipartisan group of Senators met with ICC Prosecutor Karim Khan, who described how the ICC is helping Ukraine investigate and prosecute Russian forces and leadership who are responsible for these heinous crimes.
In April, the Senate Judiciary Committee held a hearing entitled “Holding Russian Kleptocrats and Human Rights Violators Accountable for their Crimes Against Ukraine,” with Deputy Attorney General Lisa Monaco.
Following Russia’s full-scale invasion of Ukraine in February 2022, Durbin, Senator Chuck Grassley (R-IA), and Graham introduced the bipartisan Justice for Victims of War Crimes Act – which updates the current war crimes statute to enable prosecution of war criminals in the United States regardless of the nationality of the perpetrator or victim. The bill was signed into law by President Biden. Durbin-authored legislation restricting U.S. recognition of any forcibly annexed areas of Ukraine by Russia also passed as part of the Fiscal Year (FY) 2023 National Defense Authorization Act.
Full text of the letter is available here and below:
June 23, 2023
Dear President Biden:
Just weeks after Russian President Vladimir Putin launched his full-scale, illegal invasion of Ukraine, you told the Ukrainian people, “We stand with you. Period.” One year into the war, you returned to Ukraine and pledged to hold the perpetrators of the unspeakable war crimes and crimes against humanity unfolding in Ukraine accountable. We write to express our continued support for standing by Ukraine as it defends itself and the rules-based international order upon which our own safety and security depend. Your leadership in rallying the international community and NATO in defense of Ukraine and in rejection of Russian tyranny has been critical.
However, there is one important issue we have raised before that still requires your timely attention—ensuring that the United States’ is doing all that it can to hold the perpetrators of atrocities in Ukraine accountable. More specifically, despite congressional authorization to assist the International Criminal Court’s (ICC) investigation into Russian war crimes in Ukraine, your Administration still has not taken the important step of sharing critical intelligence with the ICC.
For more than a year, the world has borne witness to the unspeakable horrors that Putin and his forces have inflicted on the Ukrainian people: bombing maternity wards, beheading prisoners, raping women, torturing and executing civilians, and abducting thousands of Ukrainian children. Ukraine’s Office of the Prosecutor General has documented more than 77,000 war crimes and crimes against humanity, and the number continues to grow with each passing day.
Even as Ukraine is fighting for its very survival, Ukrainian authorities are engaged in a heroic effort to investigate, document, and prosecute these crimes. But Ukraine cannot do it alone. Ensuring accountability for these atrocities requires the support of allies and international institutions, including the ICC.
Last month, a bipartisan group of Senators met with ICC Prosecutor Karim Khan, who described how the ICC is helping Ukraine investigate and prosecute Russian forces and leadership who are responsible for these heinous crimes. The U.S. reportedly has evidence in its possession, including evidence relating to Russia’s targeting of civilian infrastructure and abduction of thousands of Ukrainian children, that would help the ICC identify the perpetrators of these crimes. However, your Administration is withholding this evidence from the ICC over unrelated concerns that the Court might one day try to initiate unwarranted prosecutions of U.S. servicemembers. We understand that the United States’ unwillingness to share this key information with the ICC is causing partner nations to hold back as well. Despite your public condemnation of Russian crimes against humanity and war crimes in Ukraine, our current posture on the ICC sends a message to the world that parochial self-interested concerns, even where unfounded, take priority over seeking justice for Putin’s crimes.
We believe it is possible to support credible investigations by the court without putting our own servicemembers at risk of prosecution, a position reaffirmed by international law and policy experts, including many in your Administration. That is why Congress passed—on a bipartisan basis—carefully crafted authorities for providing support to the ICC in appropriate circumstances. In a clear signal of Congress’s intent, these additional authorities include greater flexibility to share evidence with the court specifically in relation to the ICC’s Ukraine investigation.
We wrote to you in March to emphasize the urgency of aiding the ICC’s investigation into Russian atrocities in Ukraine. Yet it is our understanding that the Administration—reportedly at the behest of the Department of Defense—has still failed to implement the additional authorities provided to it by Congress last December. It is unconscionable for the United States to withhold critical support, including evidence that could help identify the perpetrators of war crimes and crimes against humanity.
It has been nearly six months since Congress provided your Administration with expanded authorities that it has yet to utilize. During that time, Ukraine’s Office of the Prosecutor General has documented more than 34,000 additional war crimes by Russian forces. We urge you to find a path forward to ensure the United States of America is doing all it can to hold the perpetrators of atrocities in Ukraine accountable. We would like to meet with you and Secretary Austin to discuss the matter as soon as possible.
Sincerely,
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