Since the Russian invasion and subsequent war in Ukraine, U.S. President Joe Biden has called for an investigation into Vladimir Putin, calling him a war criminal. President Biden asked for evidence to be gathered on Putin’s army in Ukraine and that the Russian president stand trial for these war crimes.  This raises concerns and questions about America’s own commission of war crimes during the conflict in Afghanistan, and why U.S. troops seemingly have a get out of jail free card when it comes to their actions.
The Rome Statutes governs the International Criminal Court, “ICC; through international criminal justice, the ICC aims to hold those responsible accountable for their crimes.  The Rome Statute lists various war crimes, including torture and inhuman treatment. When Afghanistan joined the ICC in 2003, a preliminary investigation of war crimes committed in the country began. This investigation included the U.S.’s involvement in the country, but was subsequently shelved because of a lack of cooperation from the countries being investigated. The expectation for the focus of the investigation into U.S. war crimes was on the torture program, as it was much better documented than other crimes.
The United States is not a member of the ICC and has been very critical of the court since its operation began in 2002, and has even gone so far as to issue sanctions to ICC officials. The American Service-Members’ Protection Act was passed in 2002, a month after the court began operating. The act was enacted to protect U.S. personnel from international prosecution. This view of protecting U.S. service members continued with every subsequent presidential administration, including the current one. In 2019, President Trump granted pardons to military personnel that had been convicted of or were facing charges for offenses that would qualify as war crimes.
Law professors Geoffery Corn and Rachel VanLandingham in their 2020 article, Strengthening American War Crimes Accountability, delve into the complicated relationship of the United States and the military’s refusal to investigate war crimes. Corn and VanLandingham state that this indifference to American battlefield misconduct degrades U.S. legitimacy. They also argue that this refusal to do anything harms the country’s humanitarian efforts; the military’s objectives; and even hurts service members as individuals. In their conclusion, the authors state that by enhancing war crime accountability, the U.S. military will not only enhance professionalism and effectiveness, they will also legitimize the military worldwide. Since that article, President Biden has lifted sanctions on ICC officials but did so with the understanding that the Court would not continue its probe on U.S. crimes in Afghanistan. Disappointingly, he has failed to take any steps towards supporting the Court.
How can the U.S. call for investigations into the war crimes of other countries when it is actively shielding its own personnel from offenses that are just as bad? For U.S. officials to be able to comment and judge war criminals and their crimes, they first need to allow for investigations into their own crimes. U.S. officials should join the ICC and allow for the investigations to begin without any interference. The U.S. is known and prideful about being a leading country on the world stage, but this continued lack of accountability will leave a stain on that character until it is resolved.
 Dan Mangan, Biden calls to put Putin on trial for war crimes over Russia killings in Ukraine, CNBC (Apr. 4, 2022), https://www.cnbc.com/2022/04/04/biden-calls-to-put-putin-on-trial-for-war-crimes-over-russias-actions-in-ukraine.html.
 Rome Statute of the International Criminal Court art. 8, Jul. 17, 1998, 2187 U.N.T.S. 38544, https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
 Alice Speri, How the U.S. Derailed an Effort to Prosecute its Crimes in Afghanistan, The Intercept (Oct. 5, 2021), https://theintercept.com/2021/10/05/afghanistan-icc-war-crimes/.
 Geoffrey S. Corn & Rachel E. VanLandingham, Strengthening American War Crimes Accountability, 70 Am. U. L. Rev. 309, 311 (2020).
 Id. at 312.
 Id. at 386.
 See Speri, supra note 5.