Welcome to POLITICO’s West Wing Playbook, your guide to the people and power centers in the Biden administration. With help from Allie Bice. Send tips | Subscribe here| Email Eli | Email Lauren Last March, when horrifying images of civilian deaths surfaced from Bucha, Ukraine, President JOE BIDEN called for a war crimes trial against Russian President VLADIMIR PUTIN. Biden didn’t specify the court he’d want to take on this task, but Secretary of State ANTONY BLINKEN backed the president’s assessment and said U.S. experts were gathering evidence to document Russian attacks. A year later, the Pentagon is blocking the Biden administration from sharing evidence about Russia’s brutalities with the International Criminal Court, the New York Times’ CHARLIE SAVAGE reported this week. American intelligence agencies and both the State and Justice Departments want to provide the evidence to the court. But Biden hasn’t resolved the dispute. West Wing Playbook called LUIS MORENO OCAMPO, who served as the ICC’s first prosecutor from 2003 to 2012, to talk about this impasse. This conversation has been edited for space. When I asked to talk, you sent me an interesting email saying that the ICC prosecutor doesn’t need U.S. evidence. Why? President Putin should be indicted. He is a criminal. ICC could do it, easily. ICC prosecutor KARIM KHAN does not need more evidence because there is a very clear case. It’s obvious to prove the invasion of Ukraine produced the displacement of people in territory occupied by the Russian Army. And that in itself is a crime against humanity. Plus, getting evidence from the U.S. will complicate the prosecutor’s life. Why is that? It’s the ICC rules. The prosecutor has to disclose any information that could be material for defense. So, for example, if the intelligence provided said, “Look, they targeted the hospital and Putin was involved in it, but they did it because they were thinking there was a group of militias there killing people,” the prosecutor should disclose that intelligence to the defense. And therefore, the DOD will say no. Disclosing intelligence to the defense will disclose sources. So you think Biden should side with the DOD? I think Biden should, because any good lawyer in the U.S. will know, as soon as you provide information, you are in the hands of the prosecutor to disclose or not disclose, and you cannot accept that. U.S., FBI, CIA intelligence is not something the U.S. likes to share with any prosecutor. And I understand because when you expose intelligence, you expose sources. You have to protect your sources. For me, it’s clear the only solution [for Biden] is to say, “thank you, no.” If it’s so clear cut, why hasn’t the ICC prosecutor moved to indict Putin? The ICC prosecutor is an independent, international decision-maker. He can decide to move ahead alone or to harmonize his decision with the political actors. In the Darfur case, I received a lot of messages not to indict President OMAR AL-BASHIR. It was a difficult call, but I moved ahead and states followed. In Ukraine, the ICC prosecutor received strong support to open an investigation — 43 states referred the situation to the ICC. But, in my reading between lines, states are not giving a green light to indict Putin. The ICC prosecutor is the only one who can request an arrest warrant against Putin next week. The issue is not the DOD’s information. The ICC prosecutor does not need more evidence. He needs a request by nations to go ahead with any clear cases against Putin to integrate judicial and political decisions. So why is it that we haven’t heard that direct request from Biden and other Western leaders? Because they don’t control the judicial process, and they are afraid of something they don’t control. But that’s a mistake. Some states, like the U.S. — that don’t like to go through the ICC — they don’t like the idea of conferring the principle that there is no immunity for invading a country. Because that would give ammunition to any country the U.S. invaded in the future. MESSAGE US — Are you MIKE PYLE, deputy assistant to the president and deputy National Security Advisor for international economic affairs? We want to hear from you. And we’ll keep you anonymous! Email us at westwingtips@politico.com. Did someone forward this email to you? Subscribe here!
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