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Piercing Secret State War Crimes: Maximizing Accountability in the ICC Russian Investigation

Spencer M. Perry (JD '23) is a Berkeley Law student pursuing a career in international criminal law as a federal prosecutor. Before law school, Spencer worked on foreign affairs and criminal justice issues in the Obama White House and the office of then-Senator Kamala D. Harris. Spencer began his career advocating for same-sex marriage rights in California.

International Criminal Court prosecutor Karim Khan visits the site of a residential building damaged by a Russian missile strike in late November 2022, in the town of Vyshhorod, near Kyiv, on February 28, 2023. Credit: Valentyn Ogirenko. CC-BY-NC-SA 2.0.


Russian troops invaded Ukraine promising liberation but delivering terror. The extent of Russian war crimes was illustrated in early April 2022 when a retreating front left evidence of genocide in its wake. The civilians of Bucha were left dead and mutilated in the street, in their homes, and in mass graves.[2] Some bodies were burned and others thrown into wells, poisoning water supplies.[3] Many were killed with their hands bound behind their backs.[4] The death toll reached 461 on August 2022.[5]

Bucha is emblematic of Russia’s war crimes in Ukraine. The Russian military marched across eastern borderlands towards Kyiv, razing homes[6] and hospitals[7] in its wake. Fleeing refugees are shot[8] and buried in unmarked trenches.[9] Evidence amasses indicating that each atrocity was an intentional state-led attack.[10]Journalists, UN observers, and now International Criminal Court (ICC) investigators document each atrocity, hoping that the world might rise to defend humanity and to hold Russian war criminals to account. While the rest seek an immediate reaction, the ICC’s investigation and pending litigation demand persistent toil before they bear fruit.[11]

The ICC seeks justice through deliberate investigation and adjudication. Resolution in a quiet courtroom stands for the hope that our virtues might eclipse our vices—that justice can be delivered in ink, not blood. That hope is only achieved when its shepherd, the tribunal, has an avenue to execute its mission: holding war criminals accountable. The tribunal’s chances of success are bound to its ability to prevail over a suspect’s attempts to subvert prosecution. Suspect governments may do so by misusing a state secrets privilege. An absolute state secrets privilege emboldens such sabotage. An absolute privilege forces a court to accept a state secrets assertion without examining the contested material. A qualified privilege tempers bad faith interference by permitting a court to examine the material and weigh the interests for and against disclosure.[12] The ICC’s formulation of the state secrets privilege is dangerously absolute and therefore jeopardizes its investigation into Russian atrocities in Ukraine.

Existing scholarship underestimates the risk that an absolutist state secrets privilege diminishes the ICC’s prospects for ensuring Russian accountability and inadequately examines an alternative: a qualified privilege. Descriptive analyses of the absolutist state secrets privilege abound.[13] Some pay particular attention to when state privileges may be asserted in international criminal tribunals and how tribunals might overcome assertions.[14] Others compare the absolutist and qualified approaches in international criminal contexts.[15] None observe Russia’s likely invocation of the state secrets privilege in Ukraine-related ICC litigation or argue that a qualified privilege may be applied to avoid disaster: an investigation deadlocked by an unsubstantiated state secrets claim and the most powerful international war crimes tribunal made impotent by an absolute privilege.[16]

The ICC’s present investigation into Russian war crimes in Ukraine is imperiled by the Court’s absolute deference to state secrets claims. This paper argues that the international community should employ a qualified state secrets approach in the ICC because maintaining its absolute approach will foreclose the possibility of holding Russian war criminals to account. Part I presents the ICC’s absolute state secrets privilege and a qualified alternative. Part II describes and examines the consequences of the United States’s absolute approach and analyzes why the ICC can expect similar results. Part III argues that the qualified path better serves a tribunal’s mission to pursue accountability. Part IV examines why any attempt to prosecute Russian war crimes in Ukraine should incorporate a qualified state secrets privilege to achieve criminal accountability and success.

I. Absolute and Qualified State Secrets Privileges in International Criminal Law

International criminal tribunals are not born equal. The multistate communities that establish them decree their scope, structure, and procedure, often sewing politics between the lines of their charters. The procedures for evaluating state secrets claims set in tribunals’ governing documents are often ambiguous, prompting divergent approaches to implementation. The International Criminal Tribunal for the former Yugoslavia’s (ICTY) qualified state secrets privilege approach and the ICC’s absolute approach are derived from the varied procedures set in their charters. This section reviews this split, emblematic of the two prevailing approaches to state secrets privilege in international criminal law, beginning with the ICTY’s qualified approach.[17]

The qualified approach was first applied by the ICTY in the case against General Tihomir Blaškić, the Ahmići Massacre executioner. At dawn on April 16, 1993, General Blaškić sat with his entourage on a wooded hill outside the Lašva Valley. The young Croatian general left nothing to chance. Phone lines were cut.[18] Roads were blocked.[19] Within forty-eight hours, Ahmići’s small civilian population of Muslim Bosniaks was dead.[20] Ruins smoldered for weeks, landmarked only by the remains of two decimated mosques.[21] Over 100 bodies lay under rubble and in open fields, some straining towards the surrounding woods, frozen in their efforts to escape.[22]

The Ahmići Massacre was just one episode in the Srebrenica Genocide. The fall of Yugoslavia coincided with rising ethnographic tensions catalyzed by nationalistic rhetoric.[23] Skirmishes grew bloody, militias assimilated into militaries, and ethnic minorities bore the violent consequences of leaders’ scapegoating rhetoric.[24] The UN Security Council, eager to stabilize post-Soviet Europe, established the ICTY to adjudicate then-suspected war crimes.[25] Newly-reformed Croatia ostensibly cooperated with the ICTY’s inquiry, simultaneously disappearing evidence and sabotaging the investigation.[26] Croatian obstruction only ebbed when its new national leadership made some of the state-sponsored obfuscation public in an effort to strengthen European partnerships.[27] But Croatia’s residual concerns for national shame tempered full disclosure of war crimes evidence.

An assertion of state secrets privilege halted the ICTY’s investigation into General Blaškić’s crimes. Briefed and argued, the Trial Chamber delivered a ruling to end the Prosecutor and Croatian government’s scrum over disclosure. The Chamber dismissed Croatia’s absolutist vision of the state secrets privilege in favor of the Prosecutor’s proposed qualified approach.[28] The Chamber held that “national security claims by a resistant state do not deserve automatic deference,” that “[t]he state's valid interest in the protection of sensitive information must be weighed against the need for probative evidence,” and that the state’s secrecy claim may be overcome by humanity’s need for evidence.[29] The Chamber proposed a process tailored to accommodate the inquiry while maintaining secrecy: upon a specific assertion of privilege detailing what and why particular material implicates national security, the court must review contested material in camera[30] (and may review ex parte upon request).[31] The tribunal must admit material where the prosecution’s need overcomes the state’s concern for national security and must secrete the rest.[32] An absolute bar to tribunal examination is only appropriate in an “exceptional case” where a state shows that some materials are extremely “delicate” through generic representations and to the tribunal’s satisfaction.[33] The Tribunal applied the new procedure, analyzed the contested material, and unanimously quashed the Prosecutor’s subpoenas.[34]While observers are left to wonder what materials were contested, the powerful procedural precedent remains. Indeed, Blaškić is the closest an international criminal tribunal has ever been to overcoming a state secrets privilege claim because it is the only case in which the court examined the contested material before honoring the claim.[35]

The ICTY’s inception and the Blaškić case predate the ICC, the permanent international criminal tribunal and default venue for the world’s most heinous offenses. Reflecting apprehension for the consequences of the Blaškić decision, the ICC’s governing charter (the Rome Statute) stipulated a far more defendant-deferential approach than the ICTY’s state secrets privilege.[36] The Rome Statute permits the ICC to reject its prosecutor’s requests for material or its own subpoenas when a state “confirm[s]” that disclosure to the court would “prejudice” its national security.[37] That deference to a party’s claim without interrogation effectively delegates investigative discretion to national governments. The statute places the fate of the investigation and, “potentially, . . . the case” in the hands of a state “with no direct way for the Court to gainsay[,] second-guess,” or even review “the state’s assessment.”[38] The ICC is optionless if the sought information can only be retrieved with state approval and a state asserts a state secret claim. The prosecutor can attempt to bargain with the state, but any offers or sanctions are at the other side of political quagmires in the ICC Assembly of State Parties or the UN Security Council.[39] At bottom, the successful result of a state secrets claim is all but a foregone conclusion in the ICC, but the ICC has never heard a claim.

The ICC’s power to overcome state secrets claims pales in comparison to that of the ICTY. The ICC’s inquiry is defeated by an obstinate state’s mere assertion of the privilege, while the ICTY’s inquiry soldiers on to examine the contested evidence and overcome the assertion when the weight of humanity’s demand for justice overcomes a state’s interest in national security. The ICC is satisfied to keep the contested material a mystery while the ICTY examines it in camera. The ICTY’s qualified state secrets approach presents far greater adjudicative opportunities than the ICC’s absolutist one.

II. The Untenable Consequences of an Absolutist Privilege: An American Comparison

Contemporary American state secrets doctrine illustrates the perils of an absolute approach. American courts have slowly sandbagged state secrets, ultimately creating a nigh impenetrable barricade barring disclosure.[40] The fallout demonstrates the stopping power of an absolutist privilege in practice and the likely outcome if the privilege was raised in the ICC.

The American state secrets privilege was qualified at conception. In United States v. Reynolds, the Supreme Court embraced a balancing test weighing the public interest in limiting the risk of disclosing military secrets against the private interest in relief.[41] Reynolds directed courts to tip the scale toward the public interest if the material wasn’t necessary for the non-claimant’s case or if the non-claimant could find the material elsewhere, albeit at the risk of foregoing the government’s authenticating seal through compelled governmental disclosure.[42] Reynolds further directed future courts to only inspect potentially privileged material when surrounding circumstances show that the claim is unreasonable, relying on the executive principals’ good faith and virtue.[43] The Court ultimately designed a qualified privilege pitting interest against interest with deference to government.[44]

In the seventy years since Reynolds, courts have warped deference into devotion. State secrets claims rarely barred disclosure of information at the heart of litigation before the World Trade Center was attacked.[45] Courts feared that adopting an absolutist interpretation of the privilege “and the consequent denial of a forum without giving the plaintiff her day in court . . . [was] indeed draconian.”[46] Today, in a good faith effort to revalue national security interests, courts near-totally accept privilege assertions with lip service to the Reynolds balancing test.[47] Courts even maintain the privilege when “the very subject of the action [is] a state secret,” perhaps a clear showing of necessity and therefore a situation that the Reynolds Court expected to warrant disclosure.[48] For all practical purposes, America’s state secrets doctrine has turned absolute.

The doctrinal shift from qualified to absolute has turned the state secrets privilege into a bar to litigation in American courts despite widespread criticism.[49] The public[50] and practitioners[51] alike decry the court’s willingness to foreclose remedy without interrogating the very materials they safeguard. Broadly, the new absolute approach to the state secrets privilege undermines accountability in America.[52]

The extinguishing power of an absolutist state secrets doctrine applies to American and international courts alike. Like the American people, the international community fears a doctrinal obstacle that all but bars accountability.[53] The absolute approach to the state secrets privilege in America is a bellwether for those in the international community assessing the ramifications of applying a similar doctrine in international criminal courts. The consequences of the American approach show that an absolute privilege will swiftly defeat a tribunal’s investigations into secretive states.

  1. The Qualified Privilege’s Superiority

The split between qualified and absolute approaches to state secrets in international criminal law is emblematic of an underlying debate. Advocates of a qualified privilege believe it is necessary to pave an avenue to accountability and to deter future war crimes. Those in favor of an absolute privilege fear that war crimes demand a proportionate military response before a tribunal can hope to apprehend or prosecute perpetrators and that broad secrecy protection is necessary to enable that response. This section does not engage the broader debate; it only seeks to compare the two approaches and analyze which ensures the best chances of legal accountability for Russian war criminals. I conclude that a qualified privilege does produce a better chance at holding Russian war criminals accountable than the absolute approach.

There is a third, alternative approach to state secrets doctrine worth evaluating before analyzing the comparative merits of the qualified and absolute approaches: eliminating the state secrets privilege altogether. One might presume that eliminating an inhibitory privilege maximizes the chances of criminal accountability. But eliminating the privilege impracticably ignores compelling countervailing forces. Deference to sovereignty, manifested in a state secrets privilege, is an international political necessity[54] and a representation of the legal principle of state sovereignty.[55] International criminal tribunals cannot abolish the state secrets privilege because political demand and national sovereignty demand it. The qualified and absolute state secrets privilege are the sole subjects of this paper’s analysis because they have proven politically viable and sufficiently deferential to sovereignty. The question remains: which approach maximizes a powerful interest in criminal accountability?

A qualified state secrets approach broadens the path to criminal accountability. A qualified approach tempers zealous prosecution with adherence to the principle of presumed innocence. Advocates of a qualified approach do not perceive that compromise as a failure. While they fear that a doctrinal barrier to prosecution might allow some war criminals to run free,[56] they caution against a future where judicial expediency dispenses with deliberation–one where punishment is dictated by vendetta, not fact.[57] Instead, qualified state secrets doctrine advocates assert that accountability can be achieved through dispassionate truth seeking. Blaškić’s qualified approach reflected those ideals of “duty and process” by allowing the court, a neutral magistrate, to examine the contested evidence and weigh competing interests in disclosure.[58] Put simply, an international criminal tribunal’s capacity to hold criminals to account is heightened when the tribunal can evaluate and find that the international interest in justice overcomes the state interest in national security represented by a state secrets claim.

The absolute approach trades the prospect of accountability for broader immediate response capabilities. Advocates of an absolute state secrets privilege allow that atrocity is inevitable; power is fragile and control through abusive oppression is a time-tested tactic.[59] The only hope of redress short of a hot war is to protect clandestine statecraft, espionage, and warfare for the sake of, paradoxically, peace.[60] Responses to atrocity are empowered when their tools and tactics are predictably secret and cannot be exposed by a retaliatory (or diligent) war crimes prosecution.[61] An absolutist doctrine may inadvertently protect bad actors in the long-run when a response to atrocity fails and war criminals avail themselves of state secrets claims before a tribunal, but its advocates retain that the risk is a permissible cost for emboldening swift military responses to war crimes.[62] At their core, absolutist advocates believe executive action is better equipped to curtail abuse than adjudication. An absolute state secrets doctrine may limit legal accountability, but it effectively prevents war crimes by enabling immediate response.

Four features of the absolute approach show the qualified approach’s superior ability to ensure accountability. The first is the absolutist approach’s self-defeating paradox: you cannot prevent war crimes by creating a system that hides them. Sacrificing chances for adjudication for the sake of emboldening responders creates cycles of violence.[63] Shielding a responding state from accountability may elicit a disproportionate and brutal response in the interest of ending the conflict quickly[64] only to see that escalation repaid twofold.[65] In short, an absolute privilege not only limits chances of criminal accountability, it grows the tribunal’s docket. Conversely, a qualified privilege deters war crimes by permitting a prospect for transparency and accountability.

Second, the ramifications of an absolute privilege on a tribunal’s popular support hamper criminal accountability. An absolute state secrets privilege emboldens the sentiment that states can escape scrutiny with a meritless privilege claim. That solemn conclusion undermines investments in international criminal tribunals,[66] eviscerating their chances of holding war criminals to account.

Third and most essentially, the absolute approach’s limit on judicial inquiry acutely narrows opportunities for adjudication. Preventing the tribunal from examining contested information and weighing competing interests in disclosure only permits surface-level evaluation of a claim. A tribunal faced with a state secrets claim has a far greater opportunity to reach adjudication if it can examine the contested records and weigh competing disclosure interests than it would if it could only gleam a claim’s merits from bare assertions and circumstance. Between the two, the qualified approach broadens opportunities for accountability while the absolute approach narrows them.

Fourth and finally, while the qualified state secrets approach has not yet yielded to a war crimes prosecution’s investigation, it remains the accepted formulation that maximizes the opportunity to hold war criminals accountable. International criminal tribunals have so far failed to overcome state secrets claims, including in the ICTY when a qualified approach empowered the tribunal to interrogate the material in question and weigh competing interests to reach its determination. But the universe of state secrecy claims in international criminal courts is small and doesn’t exhaust hope for overcoming privilege claims. A future tribunal’s prospects for overcoming a state secrets claim are greater when the claim faces a qualified approach’s scrutiny than when it faces an absolute approach’s near-bar to litigation. In short, international criminal tribunals inability to overcome a state secrets claims does not support the notion that qualified and absolute approaches yield equally impassible results. The facial differences between the qualified and absolute approaches show the qualified approach’s superior capacity to deliver accountability in the future.

On the whole, a qualified state secrets doctrine better serves the criminal accountability in international criminal tribunals. The absolute approach exacerbates the frequency of war crimes, it inhibits a tribunal’s capacity to pursue war criminals, and it narrows the opportunities to overcome a state secrets privilege claim. Comparatively, the qualified state secrets approach delivers the best chances of overcoming a state secrets claim and, therefore, holding war criminals to account.

IV. A Qualified Doctrine Can Hold Russia to Account

International criminal tribunals should embrace a qualified state secrets privilege to open avenues to criminal accountability as the investigation into Russian atrocities in Ukraine progresses.[67] If Russian war criminals are brought to trial at the ICC, the risk of a Russian state secrets assertion is near certain.[68] The ICC’s absolute approach effectively lends Russian defendants an easy avenue to escape serious investigation and ultimate accountability. Russia will surely sew disinformation and activate saboteurs to hamper the ICC’s investigation. Russia has a proven pattern: it will ostensibly comply with international accountability mechanisms as it undermines their efforts[69] and, if seriously threatened, close the iron curtain and condemn investigations as illegal or unconscionable.[70] The prospect of good will is nil.

Acquiescence fails against this unscrupulous actor. Success necessitates an opportunity for adjudication and an undeterrable dedication to duty. An opportunity to adjudicate, in turn, demands a qualified privilege.[71] Without it, carpet assertions of state secret privilege could cripple the investigation. That sort of blow would likely lead a lame tribunal into obscurity. Though a significant barrier itself, a qualified privilege stands as the only politically viable[72] approach that permits effective adjudication against this criminal superpower.


This brief analysis addressed the perils of an absolute state secrets privilege and the need for a qualified approach in the ICC’s pursuit of Russian war criminals. Its terms are general and comprehensive scholarship demands more specific examinations of how applying a qualified privilege doctrine will influence future adjudication.[73] Yet the point remains that rising threats to humanity in Ukraine demand a workable solution.

International criminal tribunals are uniquely qualified to address the world’s most extreme evils.[74] Put plainly, crimes against humanity deserve a response from humanity and international criminal tribunals are the only criminal mechanisms that exercise humanity’s authority.[75] In an age when human rights are imperiled[76] and international criminal tribunals offer a rare forum for justice,[77] we should buttress international criminal tribunals’ capacity to hold war criminals accountable.

That capacity is at dire odds with a quicksand snare eking toward an absolute state secrets privilege. The qualified approach appropriately tempers state interests in sovereignty and national security with multi-state interests in human rights and unencumbered adjudication.[78] The qualified approach raises the hopes of successful prosecution to their zenith. An absolute approach, manifested in the ICC’s governing statute, destroys it. The world cannot acquiesce to forceful assertions of state secrets privilege and risk an outcome where war criminals walk free. Our humanity and the people of Ukraine depend on it.

[1] Trigger warning: this essay includes descriptions of violence and war. [2] Cara Anna, War Crimes Watch: A Devastating Walk Through Bucha’s Horror, AP News, April 9, 2022, [3] Id. [4] Id. [5] Olena Harmash, Recalling Bucha Deaths, Zelensky Describes ‘Horrific Year in Kyiv Region, Reuters (Mar. 30, 2023, 8:31 AM), [6] Emma Graham-Harrison, ‘90% of houses are damaged’: Russia’s Syria-honed tactics lay waste Ukraine towns, The Guardian, March 4, 2022, [7] Samantha Lock et al., Strike on children’s hospital ‘ultimate evidence that genocide is happening’ - as it happened, The Guardian, March 9, 2022, [8] Peter Beaumont et al., Russia Accused of Shelling Mariupol Evacuation Route as Civilians Flee Sumy, The Guardian, March 8, 2022,; Yaroslav Trofimov, Russian Artillery Kills Ukrainian Civilians Fleeing Kyiv Suburb, Wall St. J., March 6, 2022, [9] Besieged Ukraine City of Mariupol Buries Dead in Mass Grave, Associated Press, March 9, 2022, [10] Yaroslav Trofimov & Alan Cullison, Ukraine Faces Fresh Wave of Attacks Focused on Population Centers, Wall St. J., March 6, 2022,; Citing U.S. Intelligence, Biden Says Putin Has Decided to Invade Ukraine, N.Y. Times, March 13, 2022, [11] Situation in Ukraine: ICC Judges Issue Arrest Warrants Against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, International Criminal Court (Mar. 17, 2023), [12] B. Sidler, Absolute Privileges, 43 Chi.-Kent L. Rev. 55, 55-56 (1966) [13] See generally Principles of Evidence in International Criminal Justice (Karim A. A. Khan, Caroline Buisman, & Christopher Gosnell eds., 2010); Emily Ann Burman, In Pursuit of Accountability: The Red Cross, War Correspondents, and Evidentiary Privileges in International Criminal Tribunals, 80 N.Y.U. L. Rev. 241 (2005). [14] See generally National Security and International Criminal Justice (Herwig Roggemann & Petar Sarcevic eds., 2002); Ruth Wedgwood, The International Criminal Tribunal and Subpoenas for State Documents, 71 Int’l L. Stud. 483, 484-95 (2015); Ariel Zemach, National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute, 47 Israel L. R. 331, 335-45 (2014); David A. Nill, National Sovereignty: Must it be Sacrificed to the International Criminal Court?, 14 B.Y.U. J. Pub. L. 119, 130-35 (1999); Albin Eser & Kai Ambos, The Power of National Courts to Compel the Production of Evidence and its Limits, 6 Eur. J. Crime Crim. L. Crim. Just. 3, 3-18 (1998). [15] Ruth Wedgwood, International Criminal Tribunals and State Sources of Proof: The Case of Tihomir Blaskic, 11 Leiden J. Int’l L. 635, 644-48 (1998); Wedgwood, supra note 14, 484-90; Jacob Katz Cogan, The Problem of Obtaining Evidence for International Criminal Courts, 22 Hum. Rts. Q. 404, 407-10, 414-23 (2000); see also Guenael Mettraux, Comparing the Comparable: 2006 Military Commissions v. the ICTY, J. Int’l Crim. Just. 59, 60-66 (2007) (comparing American and ICTY national security evidentiary privilege doctrines). [16] The international community already struggles to adjudicate war crimes. David P. Forsythe, The UN Security Council and Response to Atrocities: International Criminal Law and the P-5, 34 Hum. Rts. Q. 840, 840, 862 (2012) (“[T]he [Security] Council has been consistently ‘seized’”); Those Who Commit Atrocity Crimes will ‘Ultimately be Brought to Justice’, Residual Mechanism for Criminal Tribunals Head Tells Security Council, United Nations (Jun. 8, 2021), (“Delegates [w]arn about [d]angers of . . . [d]enying [g]enocide”). States are turning to dubious alternatives, including universal jurisdiction: legal action taken against a war criminal by a third-party state. Compare Kenneth Roth, The Case for Universal Jurisdiction, 80 Foreign Aff. 150, 150-52 (2001), and Mark R. von Sternberg, A Comparison of the Yugoslavian and Rwandan War Crimes Tribunals: Universal Jurisdiction and the “Elementary Dictates of Humanity, 22 Brook. J. Int’l L. 111, 155-56 (1996), with Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, 80 Foreign Aff. 86, 86, 95 (2001) (“The danger lies in punishing the efforts to extremes that risk substituting the tyranny of judges for that of governments”) and Yana Shy Kraytman, Universal Jurisdiction – Historical Roots and Modern Implications, 2 Brussels J. of Int’l Stud. 94, 108-17 (2005). [17] The ICTY and the ICC belong to a small universe of international criminal tribunals. The ICTY is an ad hoc tribunal created by the UN Security Council in 1993 to address crimes committed during the Srebrenica Genocide. About the ICTY, United Nations International Criminal Tribunal for the former Yugoslavia, (last visited Apr. 10, 2022). The ICC is the only permanent tribunal. It was created in 2002 by the States Parties to the Rome Statute, a body representing a majority of UN members and all but one of the five permanent members of the Security Council at enactment. About the Court, International Criminal Court, (last visited Apr. 10, 2022); International Criminal court, Britannica, (last visited Apr. 10, 2022). The ICTY and ICC’s personal jurisdictions vary but they share several other features: they address war crimes, were chartered by significantly similar groups of states, and reflect the mainstream conceptions of international criminal law procedure of their time. International Criminal Tribunals, International Justice Resource Center, (last visited Apr. 10, 2022); Gideon Boas, Comparing the ICTY and the ICC: Some Procedural and Substantive Issues, 47 Netherlands Int’l L. Rev. 267, 282-90 (2000). [18] Tyler Mars, Witness Tells U.N. Tribunal of Shelling, Deaths, L.A. Times, June 16, 1996, [19] Transcript of Witness Abdulah Ahmić Testimony, Prosecutor vs. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, 3539-40, 3545, 3549 (Int’l Crim. Trib. for the Former Yugoslavia Jun. 10-11, 1999) (recounting testimony from a survivor given to the tribunal). [20] Ahmići: 48 Hours of Ashes and Blood, SENSE Transitional Justice Center (2019), [21] Tadeusz Mazowiecki, Situation of Human Rights in the Territory of the Former Yugoslavia: Final Periodic Report 4 (United Nations Commission on Human Rights, 1995). [22] Jonathan C.R., Ahmici Massacre – Bosnian Turning Point, Wash. Post, June 20, 1993, (“[M]ost were those of elderly people, women, children, and infants.”) (original brackets omitted). [23] Prosecutor v. Kupreskic et al., Case No. IT-95-16, Summary of Trial Chamber Judgment, 1 (Int’l Crim. Trib. for the Former Yugoslavia Jan. 14, 2000); see generally Janusz Bugajski, Genocide After Emotion: The Postmotional Balkan War, 40 ORBIS 638 (1996); The Fall of Srebrenica and the Failure of UN Peacekeeping, Human Rights Watch (Oct. 15, 1995),; David N. Gibbs, How the Srebrenica Massacre Redefined US Foreign Policy, 3 Class, Race and Corp. Power, Article 5, 2-4 (2015). [24] Gibbs, supra note 23, at 2-4. [25] S.C. Res. 827, ¶ 2; The Tribunal - Establishment, United Nations International Criminal Tribunal for the Former Yugoslavia, (last visited Feb. 21, 2022). [26] Ahmići: 48 Hours of Ashes and Blood, supra note 20 (stating that Croatian authorities moved inculpatory archival material beyond ICTY investigators’ reach and Croatian intelligence infiltrated the ICTY Prosecutor’s offices). [27] Id.; R. Jeffrey Smith, Croatia Moves to Expose Its Ugly Secret, Wash. Post, May 18, 2000, [28] The Trial Chamber held that “Articles 19 and 29 of the [ICTY’s governing statute], Security Council resolution 827, the Secretary-General’s Report, implementing legislation of States, and the status of the International Tribunal as a Chapter VII measure” compelled the ICTY to uphold the subpoena because there is “a clear obligation on both States and their officials to comply fully with [the subpoena’s] terms,” invoking state secrets claims does not automatically excuse a State or State official from compliance, and States must comply with requests for assistance or orders issued by the Tribunal. Prosecutor v. Blaškić, IT-95-14-T, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoena Duces Tecum, ¶¶ 86, 150 (Int’l Crim. Trib. for the Former Yugoslavia Jul. 18 1997) (hereinafter “Trial Chamber Decision”); Ruth Wedgwood, Case Analysis: International Criminal Tribunals and State Sources of Proof: The Case of Tihomir Blaskic, 11 LJIL 635, 639-42 (1998). [29] Wedgwood, supra note 28, at 643 (citing Trial Chamber Decision, supra note 28, at ¶ 131). [30] ICTY, Rules of Procedure and Evidence, Rule 66(C), IT/32/Rev.10 (Dec. 3 1996) (“Where information is in the possession of the Prosecutor, the disclosure of which may . . . affect the security interest of the State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from the obligation to disclose”). ICTY RPE, Rule 66(C) was subsequently amended. The current Rule 66(C) states: “Where information is in the possession of the Prosecutor, the disclosure of which may . . . affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from an obligation under the [Rules of Procedure and Evidence] to disclose that information.” ICTY, Rules of Procedure and Evidence, Rule 66(C), IT/32/Rev.50 (Jul. 8 2015). [31] Roland Bank, Cooperation with the International Criminal Tribunal for the Former Yugoslavia in the Production of Evidence, Max Planck Yearbook of United Nations Law, 233, 241-51 (2000). [32] Trial Chamber Decision, supra note 28, at ¶¶ 147-48, 148 n. 248 (allowing in camera and ex parte examination of contested material to determine the legitimacy of the state secrets claim). [33] Identities of human intelligence sources, for instance. Trial Chamber Decision, supra note 28, at ¶ 115 (“[T]he Judges of the [ICTY] . . . recognized the need to project the secrecy of information relating to national security.”). [34] Wedgwood, supra note 14, at 663 nn.34-36. Some have pondered how the tribunal might have proceeded had it overruled the state secrets claim only to face a noncompliant Croatia. See, e.g., Peter Malanczuk, A Note on the Judgement of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia on the Issuance of Subpoenae Duces Tecum in the Blaškić Case, 1 Yearbook of Int’l Humanitarian L. 229, 230-36 (2009). Some expect that the geopolitical forces empowering the ICTY prosecutor could compel reconstructing Croatia. Asa W. Markel, The Future of State Secrets in War Crimes Prosecutions, Mich. St. J. Int’l L. 411, 412 (2007) (regarding potential noncompliance with an ICC order); Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities, 95 Am. J. Int’l L. 7, 12 (2001); Eric Gordy, The Blaškić Trial: Politics, the Control of Information and Command Responsibility, 36 Southeastern Europe 60, 80-82 (2012). Others argue that the ICTY would be subject to Croatia’s whims. Anne-Laure Chaumette, The ICTY’s Power to Subpoena Individuals, to Issue Binding Orders to International Organisations and to Subpoena Their Agents, 4 Int’l Crim. L. Rev. 347, 380-89 (2004); Jacob Katz Cogan, The Problem of Obtaining Evidence for International Criminal Courts, 22 Hum. Rts. Q. 404, 418 (2000). I expect that both could be true; Croatia would relinquish some material and keep damning documents secret, thereby achieving some degree of international collegiality while maintaining a degree of dignity. [35] Markel, supra note 34, at 417-19. [36] Markel, supra note 34, at 419-21. [37] Rome Statute of the International Criminal Court art. 72, Jul. 17 1998, U.N., UN Doc. A/CONF. 183/9 (hereinafter “Rome Statute”). The “prejudice” standard was accepted in lieu of proposals that strengthened ICC compulsion power, including a draft provision that required a confirmation of “serious prejudice” (Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands art. 82(55), para. 2, option 2, subparas. (c)-(d), Feb. 4, 1998, U.N.G.A., UN Doc. A/AC.249/1998/L.13 (hereinafter “Zutphen Report”)) and another that vested the ICC with absolute compulsion power (Zutphen Report at art. 82(55), para. 2, option 1 (“A State Party shall not deny a request for assistance from the Court.”); Draft Statute for the International Criminal Court in Report of the Preparatory Committee on the Establishment of an International Criminal Court art. 91, para. 8, Apr. 14, 1998, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court, UN Doc. A/CONF/183/2/Add.1). [38] This standard holds true even when the ICC is given complementary authority relative to a national prosecution because the national prosecution has proven “unwilling or unable genuinely” to carry out an investigation or prosecution. Wedgwood, supra note 14, at 647. [39] Rome Statute, supra note 37, at art. 72(7)(a)(ii). [40] See, e.g., Ian MacDougall, CIPA Creep: The Classified Information Procedures Act and Its Drift in Civil National Security Litigation, 45 Colum. Hum. Rts. 668, 684-85 (2013). Some scholars dispute the conclusion that modern American state secrets doctrine is absolute. See James Zagel, The State Secrets Privilege, 50 Minn. L. Rev. 875, 888-903 (1966). They comprise the minority view, one that this paper does not engage for the sake of brevity. Future scholarship may apply this minority view to the ICC’s potential prosecution of Russian war crimes in Ukraine. [41] United States v. Reynolds, 345 U.S. 1, 7-10 (1953); Carrie Newton Lyons, The State Secrets Privilege, 11 Lewis & Clark L. Rev. 99, 103 (“A critical aspect of the Reynolds holding is the Court’s formulation of a balancing test . . . . Essentially, courts are to weigh the showing of necessity made by those seeking the information against the appropriateness of the government’s invocation of the privilege.”). [42] Reynolds, supra note 41, at 11 (“[T]he showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.”). [43] Reynolds, supra note 41, at 8 (“[The privilege] is not to be lightly invoked. . . . The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing that the privilege is designed to protect”). [44] The Reynolds parties settled after the Supreme Court remanded. John Ames, Secrets and Lies: Reynolds’ Partial Bar to Discovery and the Future of the State Secrets Privilege, 39 N.C. J. Int’l L. 1067, 1073 (2014). The government effectively kept secret the records of an ill-fated U.S. Air Force flight that cost the lives of the plaintiff-widows’ spouses. Those records were disclosed in 2000, revealing that the only potentially sensitive information at risk was how a B-29 plane operated. Herring v. United States, 424 F.3d 384, 389 (3d Cir. 2005) (“There was no fraud because the documents, read in their historical content, could have revealed secret information about the equipment being tested on the plane and, on a broader reading, the claim of privilege referred to both the mission and the workings of the B-29.”). [45] MacDougall, supra note 40, at 685 (“Prior to 9/11, courts considered this denial of forum remedy rare.”) (citing Fitzgerald v. Penthouse Int’l Ltd., 776 F.2d 1236, 1241-42 (4th Cir. 1985); Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1299-1307 (2007); Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1299-1307 (2006); Steven D. Schwinn, The State Secrets Privilege in the Post-9/11 Era, 30 Pace L. Rev. 778, 779-81 (2009). [46] In re United States, 862 F.2d 472, 477 (D.C. Cir. 1989). [47] See, e.g., David Rudenstine, The Courts and National Security: The Ordeal of the State Secrets Privilege, 44 U. Balt. L. Rev. 37, 59-81 (2014). [48] El-Masri v. United States, 479 F.3d 296, 306 (4th Cir. 2007) (affirming dismissal by a claim involving a six-month detention involving torture due to a mistaken identity because the detention and torture were deemed states secrets); MacDougall, supra note 40, at 684-93. [49] MacDougall, supra note 40, at 686; Shirin Sinnar, Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991, 1001-06 (2018). [50] See, e.g., Elizabeth Goitein & Frederick A. O. Schwarz, Jr., Congress Must Stop Abuses of Secrets Privilege, Brennan Center for Justice, December 14, 2009, [51] See, supra note 39. [52] Aziz Huq, Dangerous Discretion, State Secrets, and the El-Masri Rendition Case, Jurist, Mar. 12, 2007,; Daniel J. Huyck, Face to Black: El-Masri v. United States Validates the Use of the State Secrets Privilege to Dismiss “Extraordinary Rendition Claims, 17 Minn. J. Int’l L. 435, 457-58 (2008) (“dismissing El-Masri’s claim based on the state secrets privilege blocks almost every formal channel for government accountability”); Rudenstein, supra note 47, at 37-45. [53] Zemach, supra note 14, at 349 (“[E]ven weak states are in a position to defy international justice”); Wedgwood, supra note 28, at 647 (“[T]he ICC . . . must defer to national prosecutions of war crimes, unless the nation state is ‘unwilling or unable genuinely’ to carry out the investigation or prosecution.”) (quoting Rome Statute, supra note 37, at art. 17); Id. (“[T]he ICC cannot demand to see the national security documents on which to ground an independent assessment of prejudice to national security, nor can the ICC presume to weigh in the balance the relative equities of protecting national security information versus the importance of pursuing a prosecution. If the state’s refusal to turn over national security information is made in good faith, that is the end of the matter, and potentially, the end of a case.”). [54] Wedgwood, supra note 28, at 646 (discussing the political evolution of the ICC’s state secrets privilege evolution); see supra note 34. [55] Michael J. Struett, The Transformation of State Sovereign Rights and Responsibilities Under the Rome Statute for the International Criminal Court, 8 Chapman L. Rev. 172, 172-73 (2005); Adrian Jones, Continental Divide and the Politics of Complex Sovereignty: Canada, the United States and the International Criminal Court, 39 Canadian J. Pol. Sci., 277, 237-42 (2006). [56] Wedgwood, supra note 14, at 483 (“The internationalization of war crimes prosecutions is seen as a way to restore confidence and allow reconciliation.”); Internationalized Criminal Tribunals, International Justice Resource Center, (last visited Mar. 13, 2022) ("International criminal tribunals exist to investigate and prosecute individual people for serious violations of international criminal law or international humanitarian law – such as war crimes, genocide, and crimes against humanity – when national authorities are unable or unwilling to do so."). [57] Sang Hyun-Song, The Role of the International Criminal Court in Ending Impunity and Establishing the Rule of Law, United Nations,; Wedgwood, supra note 28, 644 (noting that the ICTY predicted that “that many national governments may resist [disclosure], despite the ethical standards that surround the international judiciary, for there is often a reluctance to disseminate sensitive information even to a highly regarded official of foreign nationality.”); compare James F. Alexander, The International Criminal Court and the Prevention of Atrocities: Predicting the Court’s Impact, 54 Vill. L. Rev. 1, 9-29 (2009) with Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 10-25 (2001). [58] Wedgwood, supra note 28, 644 (“[a]ny blanket exemption for national security information could cripple the enforcement of command responsibility, since the records of military operations lie at the center of proof of a commander's conduct.”). [59] Emily Sohn, Is War Inevitable? Debate Ranges Among Anthropologists, NBC News, July 18, 2013,; Frank Vogl, Is Genocide Inevitable?, The Globalist, June 15, 2015, [60] Lynn F. Fischer, Espionage: Why Does it Happen?, Department of Defense Security Institute, 1,; Less Pressman et al., Sabotage and National Defense, 54 Harv. L. Rev. 632, 644-46 (1940). [61] Thomas G. Stacy, The Constitution in Conflict: Espionage Prosecutions, the Right to Present a Defense, and the State Secrets Privilege, 58 U. Colo. L. Rev. 177, 237-46 (1987); Erin M. Stilp, The Military and State-Secrets Privilege: The Quietly Expanding Power, 55 Catholic U. L. Rev. 831, 836-37 (2006). This factor does not assume that a responding force’s efforts are necessarily criminal; it merely assumes that secrecy makes them more effective. See, e.g., Note, The Military and State-Secrets Privilege: Protection for the National Security or Immunity for the Executive?, 91 Yale L. J. 570, 570-73 (1982). [62] Wedgwood, supra note 14, at 494 (“In a world in which it is dangerous to compromise human intelligence sources and the capability of national technical means, this is a wise exception.”). [63] The court worried that reducing weight on the scale by yielding to “Croatia's claim of an unbounded national security privilege would shield ‘documents that might prove of decisive importance to the conduct of trials’ and would ‘be tantamount to undermining the very essence of the International Tribunal's functions.’” Wedgwood, supra note 14, at 493 (citation omitted). [64] Conor Friedersdorf, Using the ‘Top Secret’ Stamp to hide Lies and War Crimes, The Atlantic, Apr. 8, 2014,; Claire Finkelstein, How the State Secrets Doctrine Undermines Democracy, Bloomberg Law, Mar. 28, 2022, [65] Lionel Beehner, Torture, the United States, and Laws of War, Council on Foreign Relations, Nov. 11, 2005, [66] Facing Political Attacks, Limited Budget, International Criminal Court Needs Strong Backing to Ensure Justice for Atrocity Crimes, President Tells General Assembly, United Nations, Oct. 29, 2018,; Jane Stromseth, Is the ICC Making a Difference?, Just Security, Dec. 6, 2017, [67] Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 State Parties and the Opening of an Investigation, International Criminal Court, March 2, 2022, [68] Anthony Deutsch & Toby Sterling, ICC Faces “Myriad Challenges” to Prosecute War Crimes in Ukraine, Reuters, March 4, 2022,; Zoha Siddiqui et al., Could Putin Actually Face Accountability at the ICC?, Foreign Policy, March 4, 2022,; Haggae Matsiko, Are Super Powers Undermining the ICC?, Global Policy Forum, June 9, 2010,; Morgan Chalfant, Secretive Russian GRU Tests Trump with Brazen Tactics: Russia’s Most Aggressive Spy Agency Poses Global Challenge, The Hill, September 13, 2018. [69] Filippa Lentzos & Jez Littlewood, How Russia Worked to Undermine UN Bioweapons Investigations, Bulletin of the Atomic Scientists, December 11, 2020,; Derek Averre & Lance Davies, Russia, Humanitarian Intervention and the Responsibility to Protect: The Case of Syria, 91 Int’l Aff. 813, 823 (2015). [70] Andrei Kolesnikov, Russian Ideology After Crimea 18-20 (Carnegie Moscow Center, 2015); Mikhail Suslov, Russian Conservatism as an Ideology: The Logic of Isolationism in Contemporary Russian Conservatism 88-94 (Mikhail Suslov & Dmitry Uzlaner eds., 2019); Alexandra V. Orlova, Sovereignty, Dissent, and the Shaping of International Consensus Around Human Rights: An Examination of Russian “Disengagement” from the European Court of Human Rights, 35 Ariz. J. Int’l Comp. L. 435, 462-66 (2018). [71] A qualified privilege could be effectuated by amending the Rome Statute to reflect the qualified approach (Rome Statute, supra note 37, at arts. 121-22 (prescribing the process for ratifying amendments); Assembly of State Parties, Amendment to Article 8 of the Rome Statute of the International Criminal Court (Intentionally Using Starvation of Civilians), C.N.394.2020.TREATIES-XVIII.10.g (2019) (recently amending the Rome Statute)) or establishing an ad hoc tribunal to address Russian war crimes in Ukraine akin to the ICTY (Guénaël Mettraux, General Remarks – The Creation and Jurisdiction of the Ad Hoc Tribunals in International Crimes and the Ad Hoc Tribunals 3-4 (2010); Overview, Rome Statute of the International Criminal Court, (last visited Mar. 14, 2022)). [72] This paper does not address the important practical question of whether and how the State Parties to the Rome Statute can adapt the Rome Statute to include a qualified state secrets privilege. Others have argued that it is possible under the very circumstances presented by the Russian atrocities in Ukraine: a hyper-secretive state with exclusive domain over necessary information and an international community uniformly opposed to placation. Markel, supra note 34, at 419-34; Wedgwood, supra note 14, at 495 (noting that the Blaškić procedure has yet to prove “a workable institution or a stillborn structure” in the ICC). [73] Kevin M. O’Connell, Thinking About Intelligence Comparatively, 11 Brown J. World Aff. 189, 191-98 (2004) (implying that American, British, Russian, Chinese, and Israeli governments are among the most secretive in the world); Monroe Leigh, The United States and the Statute of Rome, 95 Am. J. Int’l L. 124, 128 (2017) (“[An] important aspect of the [United States]’s objection to the treaty [to establish a permanent International Criminal Court] is that, if . . . the ICC exercises jurisdiction over a member of one of the military services or over a civilian official such as the secretary of defense . . . , the ICC will place itself in the position of passing judgment on the legality under international law of U.S. national-security decisions.”); Simon Chesterman, The Spy Who Came In from the Cold War: Intelligence and International Law, 27 Mich. J. Int’l L. 1071, 1123-24 (2006). [74] Compare Patricia M. Wald, The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-to-Day Dilemmas of an International Court, 5 Wash U. J. L. 87, 113-118 (2001) (recounting the ICTY’s unique advantages) with Bartram S. Brown, Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals, 23 Yale J. Int’l L. 383, 430-33 (1998) (arguing international criminal tribunals’ failures). While many scholars agree that international criminal tribunals are best suited for their challenging tasks, they contend that they achieve limited results. Christopher Rudolph, Constructing an Atrocities Regime: The Politics of War Crimes Tribunals, 55 Int’l Org. 655, 685-91 (2003). [75] Rome Statue of the International Criminal Courts, United Nations Office of Legal Affairs (1998),; Clare Frances Moran, The Problem of the Authority of the International Criminal Court, 18 Int’l Crim. L. Rev. 883, 886-92 (2018); Tonya J. Boller, The International Criminal Court: Better than Nuremberg?, 14 Ind. Int’l & Comp. L. Rev. 279, 313-14 (2003). [76] Michelle Bachelet, U.N. High Commissioner for Human Rights, Remarks on the State of the World’s Human Rights after COVID-19 at the Network 20/20 Summit (Oct. 29, 2020), [77] International criminal tribunals also have the capacity to establish and maintain human rights norms. See, e.g., Hyun-Song, supra note 57; Tara Kibler, The Nuremberg Trials and Their Profound Impact on International Law, HeinOnline Blog (Oct. 1, 2019),; Wolfgang Schomburg, The Role of International Criminal Tribunals in Promoting Respect for Fair Trial Rights, 8 Nw. J. Int’l Hum. Rts. 1, 1-2 (2009). [78] Roggemann, National Security and Protection of the State in National and International Criminal Procedure: Systematic and Comparative Aspects, in National Security and International Criminal Justice, supra note 14, at 3-10.



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