Pentagon withholding evidence in Russia war crimes case: Senators

United States senators have grilled the head of the Pentagon for what they called a failure to cooperate with an International Criminal Court (ICC) investigation of Russian war crimes in Ukraine.

Speaking during a Senate committee hearing on Thursday, Democrat Dick Durbin said he had been told by the international court’s chief prosecutor that the US Defense Department was refusing to cooperate in the case, which it launched in the wake of Russia’s full-scale invasion of Ukraine on February 24, 2022.

In March, the court issued an arrest warrant for Russian President Vladimir Putin.

Durbin said the court’s top prosecutor, Karim Khan, told him that, unlike the Pentagon, the US State Department and Justice Department were cooperating with the investigation.

“Why are you reluctant to share the evidence that we have gathered in the United States through the Department of Defense for those who are holding [Russian President] Vladimir Putin accountable for his war crimes?” Durbin asked Pentagon chief Lloyd Austin.

In a glancing response, Austin said the Pentagon “firmly supports the goal of holding Russia accountable for its violations in Ukraine”. But he added, “I will always prioritise the protection of US military personnel in anything that we do.”

He later said: “I do have concerns about reciprocity going forward.”

The response underscores the US’s long-held wariness towards the ICC. The government has previously voiced concerns that joining or supporting the court could open the door to further prosecutions of US military personnel or political leaders, or appear to legitimise ICC investigations of US personnel abroad.

The court became operational in 2002, four years after 120 countries ratified its legal basis, the Rome Statute.

Under the statute, the court has jurisdiction to prosecute international crimes — including crimes against humanity, war crimes, crimes of aggression and genocide — if they are committed in the territory or by a national of a party to the treaty, if that party is “unable” or “unwilling” to do so.

Still, various US administrations have taken vastly different approaches to the court, ranging from reluctantly supportive to openly antagonistic.

For his part, President Joe Biden has signalled more cooperation under his administration, including by lifting sanctions that his predecessor, former President Donald Trump, imposed on ICC officials.

In March, Biden also called the court’s arrest warrant for Putin “justified”. That came after Congress last year passed legislation that broadened Washington’s ability to share evidence with the ICC.

When Durbin pushed Austin on why the Defense Department was taking a different approach than the Justice and State Departments, the Pentagon leader demurred.

“Why we would hold back evidence against this war criminal Vladimir Putin and the terrible things he’s doing, I don’t understand at all,” said Durbin. “You must have a compelling reason not to cooperate, what is it?”

Austin responded: “Again I will always prioritise protection of our military personnel. That’s my concern.”

Senator Lindsay Graham, a Republican, added that prosecuting Putin and the Russians responsible for war crimes would have a US national security benefit.

“Mr Khan says we have a lot of valuable information that could accelerate his prosecution not only of Putin but of others,” Graham said.

At a hearing last month, Graham praised the Justice Department for working with its Ukrainian counterpart to help pursue war crimes prosecutions against Russia and bashed the Defense Department for hindering such efforts. At the time, Deputy Attorney General Lisa Monaco declined to comment on internal discussions.

A State Department spokesperson has said the US supports “a range of international investigations and inquiries into war crimes and atrocities in Ukraine”, including those conducted by the ICC’s prosecutor.

Ukrainian President Volodymyr Zelenskyy made a surprise visit to The Hague last week, calling for a new international tribunal to hold Putin accountable for the invasion of Ukraine.

Russia is not a member of the ICC and rejects its jurisdiction. Moscow denies committing atrocities in Ukraine.