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The U.S. does not recognize the jurisdiction of the International Criminal Court

MICHEL MARTIN, HOST:

Earlier this week, President Biden used the word genocide to describe atrocities committed by Russia in Ukraine. The president had also previously called Russian President Vladimir Putin a war criminal and said evidence should be gathered to put Putin on trial. Now, you might be asking, how or where does such a trial take place? There is a legal body specifically set up to prosecute cases of genocide, war crimes and other serious international crimes. It's the International Criminal Court, or ICC.

But here's the rub. The U.S. does not recognize the jurisdiction of this legal body. We wanted to learn more about why the U.S. does not and, despite that, if there is a role the U.S. could play in investigating Russian actions in Ukraine. For this, we called John Bellinger III. He was a legal adviser for the National Security Council and the State Department during the administration of George W Bush. And he is with us now. John Bellinger, thank you so much for joining us.

JOHN BELLINGER III: Nice to be with you, Michel.

MARTIN: So the International Criminal Court was established in 1998 by an international agreement called the Rome Statute. And although the U.S. helped negotiate that accord, it ultimately did not formally join the ICC. As briefly as you can, why not?

BELLINGER: Well, that's right, Michel. The U.S. has had a real roller coaster relationship with the ICC from the beginning with, unfortunately, more downs than ups. The real answer to your question is that the U.S. has been concerned from the very beginning that the prosecutor for the court would be given too much power unchecked, and he or she could conduct politically-motivated prosecutions of U.S. soldiers.

And the U.S. actually had long supported the concept of an international criminal court. Congress had actually voted resolutions back in the 1990s calling for the creation of an international criminal court based on the Nuremberg tribunals after World War II. But as you said, when the Clinton administration participated in the negotiations of the treaty, the Rome Statute that created this International Criminal Court, the U.S. was not comfortable with the outcome and ended up being one of only seven countries in the world that voted against the treaty.

MARTIN: I do want to point out that Russia also does not recognize the jurisdiction of the International Criminal Court, but the ICC has already opened investigations into possible war crimes committed by Russia in Ukraine. Can the U.S. help with these investigations, despite not being a member of the court itself?

BELLINGER: Well, it certainly can, and it should, in my view. There are some legal problems because when the court opened in 2002, Congress passed, on a bipartisan basis, a very draconian piece of legislation called the American Service Members Protection Act that strictly limits the U.S. ability to cooperate with the court, with some exceptions. So the Biden administration would have to work its way through these legal restrictions, which would, I think, ultimately allow some support to the court. The bigger problem, really, is how is it that the U.S., which has traditionally had some concerns about the court, now support the court's investigation of Russia? There's an answer to that, which is that the United States is not concerned about everything that the ICC does.

In fact, when I was legal adviser for the State Department in the second term of the Bush administration, we supported the court's investigation of the genocide in Sudan. So as long as the court is doing what it was created to do, which is to investigate international crimes that have not been investigated by the country that committed them, then we should be helping it. Of course, if they start investigating politically motivated cases of us or others, then we can oppose that. But...

MARTIN: But wait. Wait. Hold on. What's the distinction there? Is the distinction - for example, the U.S. condemned a previous ICC investigation into U.S. actions in Afghanistan. Is the defining issue here whether the government responsible for the actions in question has the capacity or the willingness or any history of investigating itself? Is that the dividing line there?

BELLINGER: So if the United States does end up supporting the ICC's investigation of Russia, which I hope and ultimately think that the Biden administration will, we will certainly open ourself up to some charges of hypocrisy because of these traditional concerns that the U.S. has had about the ICC's investigation of the United States. But there is a difference.

I think what we need to do is apply the terms of the treaty itself. The International Criminal Court exists only to assert jurisdiction when a country hasn't investigated its own nationals for the most serious of offenses, and Russia hasn't done that. In the case of Afghanistan, though, the United States had investigated most of those offenses. You can argue about whether the investigations were full enough, but there's a big difference between the investigations that were conducted by the United States at the same time that Russia is claiming that it has done absolutely nothing wrong in Ukraine.

MARTIN: Critics say that this is already hurting U.S. moral authority by not being a member. So do you feel comfortable telling me your opinion about this? I mean, do you think the U.S. should be a member?

BELLINGER: The U.S. should be a member. But sadly, that ship sailed back in 1998 when the negotiators, over U.S. objections during the Clinton administration, negotiated a treaty that did not address U.S. concerns. So yes, it's painful for me as an American, as a lawyer, as the former legal adviser for the State Department, representing a country that has long been at the forefront of international criminal justice. It is unfortunate that the United States is not a party to the International Criminal Court. We should be. But for the time being, I think U.S. policy will have to continue to be, through both Republican and Democratic administrations, is to support the court when it is doing what it was set up to do, which, in this case, the investigations of the Russian war crimes and crimes against humanity in Ukraine is exactly what the court was set up to do.

MARTIN: That was John Bellinger III. He is a former legal adviser to the National Security Council and the State Department during the administration of George W Bush. Mr. Bellinger, thanks so much for talking with us and sharing this expertise.

BELLINGER: Thanks, Michel. Great to be with you.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.