President Biden has quietly ordered the U.S. government to begin sharing evidence of Russian war crimes in Ukraine with the International Criminal Court in The Hague, according to officials familiar with the matter, signaling a major shift in American policy.
The decision, made by Mr. Biden in recent days, overrides months of resistance by the Pentagon, which argued that it could pave the way for the court to prosecute American troops, according to the officials. It was unclear why Mr. Biden let the impasse linger or what finally led him to resolve it.
American intelligence agencies are said to have gathered information including details about decisions by Russian officials to deliberately strike civilian infrastructure in Ukraine and forcibly deport thousands of Ukrainian children from occupied territory. Already, they have shared some of that evidence with Ukrainian prosecutors but had refrained from doing so with The Hague.
Since the International Criminal Court was created by a 1998 treaty to investigate war crimes, genocide and crimes against humanity, administrations of both parties have viewed it with wariness and sometimes hostility. But Russia’s invasion of Ukraine in early 2022 has helped thaw those relations.
After the war began, American officials applauded the court’s chief prosecutor, Karim Khan, for his investigation into possible war crimes in Ukraine. In December, Congress eased restrictions that barred it from providing aid to the court for its investigation into Russian atrocities. And the Biden administration expressed support for the court when it issued arrest warrants in March for top Russian officials, like President Vladimir V. Putin, accusing them of orchestrating the abduction and deportation of Ukrainian children.
Behind the scenes, however, there was fierce internal debate over whether to share intelligence shedding light on the actions of Russian officials. While the Justice and State Departments supported doing so, the Pentagon resisted such a step, officials have said.
The dispute led the National Security Council to convene a cabinet-level “principals committee” meeting on Feb. 3 in an attempt to resolve the matter, officials have said, but Secretary of Defense Lloyd J. Austin III continued to object.
The White House has yet to announce the policy reversal or the assistance it will now provide, but it began notifying members of Congress on Tuesday, according to the people, who spoke on the condition of anonymity to discuss a sensitive matter.
A National Security Council spokesman declined to comment, and the Pentagon press office did not immediately respond to a request for comment.
John Bellinger, a former top lawyer at the National Security Council and State Department during the George W. Bush administration who favored sharing evidence with the court, embraced word of the decision.
“It’s too bad that they are not announcing that publicly, because it’s the right thing to do,” he said.
Senators Richard J. Durbin, Democrat of Illinois, and Lindsey Graham, Republican of South Carolina, the top lawmakers on the Judiciary Committee, have repeatedly sought to call attention to the impasse and shame the Pentagon for standing in the way. In a joint statement, they praised the shift as they recounted documented Russian war crimes.
“Ensuring that the United States is doing all that it can to hold the perpetrators of atrocities in Ukraine accountable is essential to help our Ukrainian friends and to send a clear message to Putin: The United States will not tolerate these horrific crimes,” they said. “After pressing the administration for months, we are pleased that the administration is finally supporting the I.C.C.’s investigation.”
In a letter to Secretary of State Antony J. Blinken released Wednesday, Senator Bob Menendez, Democrat of New Jersey and the chairman of the Foreign Relations Committee, urged the administration to cooperate with the court when it came to the deportation of Ukrainian children, thousands of whom have been sent to Russia since the invasion. In an interview, he said he had not yet heard of the policy change but that it would be “welcome news,” calling the Pentagon’s stonewalling “unacceptable.”
The bipartisan legislation Congress enacted in December, embedded in a large appropriations bill, created an exception to prohibitions on funding and certain other aid to the court. It allows the government to assist with “investigations and prosecutions of foreign nationals related to the situation in Ukraine, including to support victims and witnesses.”
Despite that signal of support, Pentagon leaders had continued to oppose such a step. They wanted to maintain the position taken by previous administrations: that the court should not exercise jurisdiction over citizens from a country that is not a party to the treaty that created it, like the United States or Russia.
Some legal specialists, like Mr. Bellinger, have maintained that the United States can help the court with its investigation into Russian actions while arguing that it should not investigate American forces because the United States has military and criminal justice systems that investigate allegations of wrongdoing by its own personnel.
But Pentagon leaders are said to have argued that sharing evidence would set a precedent that would make it harder for the United States to argue that the court should not investigate and prosecute Americans.
Regardless, the move is a significant step, as the government has been changing its approach toward the court.
Before the International Criminal Court was created, the United Nations Security Council relied on ad hoc tribunals to address atrocities in places like the former Yugoslavia and Rwanda. Many democracies welcomed the idea of creating a standing body at The Hague and signed the 1998 treaty, known as the Rome Statute, including close American allies like Britain.
But the United States has long kept its distance. President Bill Clinton signed the Rome Statute in 2000 but called it flawed and did not send it to the Senate for ratification. In 2002, President George W. Bush essentially withdrew that signature. And Congress enacted laws in 1999 and 2002 that limited what support the government could provide.
Relations began to ease under the Obama administration, which showed support by offering rewards for the capture of fugitive warlords in Africa whom the court had indicted.
But tensions again flared after top prosecutors for the court in 2017 tried to investigate the torture of detainees during the Bush administration as part of an inquiry into the war in Afghanistan. The Trump administration imposed sanctions on the court’s personnel, and Secretary of State Mike Pompeo denounced it as corrupt.
In 2021, the Biden administration revoked President Trump’s sanctions, and the newly appointed prosecutor, Mr. Khan, dropped the investigation.
Julian E. Barnes contributed reporting.
Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” More about Charlie Savage
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