HomeOffice of Global Criminal JusticeRemarks & Releases..."The Legal, Practical, and Policy Implications of the Russia-Ukraine Conflict Panel II: Adjudicating Atrocities from the Russia-Ukraine War: Can It Be Done, In What Tribunals, and Should There Be Limits?"

# 									"The Legal, Practical, and Policy Implications of the Russia-Ukraine Conflict Panel II: Adjudicating Atrocities from the Russia-Ukraine War: Can It Be Done, In What Tribunals, and Should There Be Limits?"							

Remarks

Beth Van Schaack, Ambassador-at-Large for Global Criminal JusticeOffice of Global Criminal Justice

The Federalist Society

Washington, D.C.

June 29, 2023

Good afternoon. Thanks to the Federalist Society for organizing and Jones Day for hosting the 2023 National Security Symposium. I appreciate the opportunity to speak with you as the sixth U.S. Ambassador-at-Large for Global Criminal Justice.

For those of you unfamiliar with our office, GCJ advises the Secretary of State and the Under Secretary of State for Civilian Security, Democracy, and Human Rights on issues related to war crimes, crimes against humanity, and genocide. In particular, GCJ helps formulate U.S. policy on the prevention of, responses to, and accountability for mass atrocities.

I embrace my role as the Ambassador-at-Large for Global Criminal Justice. Since being sworn in on March 17, 2022, I have traveled to Africa—specifically The Gambia, Liberia, Ethiopia, and the Central African Republic—where are important justice efforts underway; to South America—such as to Colombia, which is emerging from more than 50 years of war and is engaged in a sophisticated experiment in transitional justice; and to Asia—such has meeting with Rohingya justice actors in Cox’s Bazar in Bangladesh to hear more about their priorities and expectations for justice.

But, as you would expect, I have been very engaged with this panel’s topic, atrocity accountability related to the ongoing Russia-Ukraine armed conflict.

My remarks will outline my office’s approach—and several the commitments of the U.S. Government—towards accountability, following which I look forward to Professors Rabkin and Newton providing their perspective and to hearing the views folks assembled here to gain a better understanding of how effectively the U.S. government has articulated what we are doing and why in terms of accountability for the war crimes and other atrocities being committed in connection with Russia’s war of aggression in Ukraine.

My office, in collaboration with other parts of the U.S. government and many international partners, is proceeding along five pathways to justice in an effort to uphold international norms and to ensure those responsible for the abuses we see in Ukraine are held to account. The First Pathway focuses on Ukraine’s domestic capacity. The Second Pathway supports strategic litigation in other national courts. The Third Pathway involves international institutions and courts. The Fourth Pathway focuses on the crime of aggression. And the Final Pathway leads here to the United States.

The First pathway aims to increase the capacity of Ukrainian institutions to document, investigate, and prosecute war crimes in Ukrainian courts.

The Ukrainian Office of the Prosecutor General has recorded tens of thousands of incidents that may constitute prosecutable crimes. I want to highlight two programs designed to assist the Prosecutor General with this monumental undertaking.

The first is the Atrocity Crimes Advisory Group or ACA and the second is a training program focused on war crimes investigative techniques.

In May 2022, the United States, the United Kingdom, and the European Union, established the ACA, a multilateral initiative to provide strategic advice and operational assistance to Ukraine’s Office of the Prosecutor General in the investigation and prosecution of atrocity crimes committed in Ukraine. The ACA is intended to streamline multinational efforts and encourage the expeditious deployment of financial resources and skilled personnel to respond to the needs of the Office of the Prosecutor General as the legally constituted authority in Ukraine responsible for the prosecution of war crimes in its own territory.

Through the ACA, we are providing expert technical assistance, capacity building, and comprehensive training in international criminal law and practice drawn from the world’s war crimes tribunals and units to assist Ukrainian investigators and prosecutors in Kyiv and out in the field. This includes focused attention to the scourge of conflict-related sexual violence that has been widely documented by the United Nations and other bodies.

In addition to the ACA, we are also providing training on war crimes investigative techniques. The State Department and the Department of Justice are partnering with Ukraine’s National Police of Ukraine and State Border Guard Service to provide training and mentoring, including on tactical and criminal investigative assistance and forensics and evidence collection—all foundational skills for war crimes prosecutions.

The second pathway is aimed at supporting strategic litigation around the world. We are providing that support in a variety of ways, three of which I will highlight: the Conflict Observatory, supporting Ukrainian Civil Society Documentation Tracing forcible transfers and deportations, and assisting Ukrainian prisoners of war.

In May 2022, the State Department announced the launch of the Conflict Observatory, an independent research entity that uses commercially and publicly available information and geospatial data to identify, track, and document possible atrocities in Ukraine committed by members of Russia’s military and its proxy forces.

We are also assisting ongoing Ukrainian civil society efforts to gather, document, and analyze evidence of atrocities perpetrated in the context of Russia’s current aggression against Ukraine in a trauma-informed and survivor-centric way, consistent with international evidentiary standards. In a new paradigm of public-private partnership, these civil society groups are sharing such evidence with accountability mechanisms, including the Office of the Prosecutor General and national investigative authorities, as well as international mechanisms and domestic courts outside Ukraine.

In Europe, we have witnessed the mass mobilization of prosecutorial and investigative efforts to coordinate strategies, track potential defendants, and share information and evidence. Several European states have formed a Joint Investigative Team (JIT) to streamline their activities. The United States supports these efforts through memoranda of understanding with different States, and by working with civil society organizations that are providing potential evidence to national authorities.

Lastly, the State Department is supporting a program that traces and documents cases of individuals, including Ukrainian prisoners of war and civilians, subjected to forced transfers and deportations to Russia and territories under its control, and, whenever possible, provides them with legal assistance.

The third pathway involves international institutions and courts. In terms of international institutions, the United States has supported, among others,

the U.N. Independent International Commission of Inquiry or COI on Ukraine, the U.N. Human Rights Monitoring Mission in Ukraine, and the Organization for Security and Co-operation in Europe Moscow Mechanism.

The United States worked with a cross-regional group of countries to help establish the COI and renew its mandate on April 4, 2023. The COI issued its first written report on October 18, 2022, finding that war crimes and violations of human rights and international humanitarian law have been committed in Ukraine since February 24, 2022. The COI issued its second report on March 16, 2023, finding war crimes, indiscriminate attacks on infrastructure, systematic and widespread torture show disregard for civilians.

Since Russia’s full-scale invasion of Ukraine in February 2022, the United States and likeminded countries have invoked the OSCE’s Moscow Mechanism four times with respect to Russia: three times to examine Russia’s atrocities and abuses in Ukraine and once to examine the deteriorating human rights situation within Russia. A fifth invocation focused on Belarus.

Shifting to the international courts, the Prosecutor of the International Criminal Court (ICC) has opened an investigation into the Situation in Ukraine, which received an unprecedented number of state referrals. Since then, two arrest warrants have now been issued for the illegal transfer and deportation of Ukrainian children into Russia.

In the fiscal year 2023 Omnibus, the United States Congress enacted bipartisan legislation to support the ICC’s investigation in Ukraine. This bipartisan legislation provides enhanced authority for the Executive Branch to assist the ICC in its efforts to prosecute war crimes and crimes against humanity committed in Ukraine.

Prosecutions for the crime of aggression offer a fourth pathway to justice. Most of the previous efforts involve Russia to account for war crimes, crimes against humanity, and other atrocities carried out in Ukraine. There are also compelling reasons to prosecute the crime of aggression in light of Russia’s efforts at territorial acquisition and the political subjugation of the Ukrainian people. Permitting impunity for Russia’s illegal war of aggression will embolden other actors to engage in similar blatant violations of state sovereignty, territorial integrity, and political independence in manifest breach of the UN Charter.

We thus support the development of a Special Tribunal on the crime of aggression against Ukraine in the form of an internationalized court that is rooted in Ukraine’s judicial system, with international elements. We envision such a court having significant international support— particularly from our partners in Europe—and likely located in The Hague. Rooting such a Special Tribunal in Ukraine’s domestic judicial system will provide the clearest legal and practical path to establishing a new tribunal. This kind of model—an internationalized national court—will facilitate broader international support and demonstrate Ukraine’s global leadership in ensuring accountability for the crime of aggression. An internationalized model also builds upon the example of other successful justice mechanisms.

We remain committed to working with Ukraine, and countries around the world, to stand up and support such an internationalized national tribunal and maximize the ability to achieve meaningful accountability for the crime of aggression.

The final pathway leads here to the United States. This pathway involves strengthening U.S. law and ensuring that the United States does not become a safe haven to those who commit international crimes, such as those being committed daily in Ukraine. In January 2023, Congress took a significant and long overdue step in this direction by passing The Justice for Victims of War Crimes Act to enhance the federal war crimes statute.

But there is more that can be done to provide U.S. prosecutors with the tools they need to prosecute international crimes. As Deputy Attorney General Lisa Monaco recently testified before the Senate Judiciary Committee, the United States lacks a statute criminalizing crimes against humanity. Crimes against humanity encompass certain abuses—including murder, torture, and rape—committed as part of a widespread or systematic attack directed against any civilian population and pursuant to or in furtherance of a state or organizational policy to commit such an attack.

Passing crimes against humanity legislation will better align U.S. law with that of our friends and allies and empower U.S. prosecutors and investigators to prosecute the whole range of international crimes. Over 100 countries already have laws criminalizing crimes against humanity. The United States is out of step with the community of nations.

The United States’ lack of a crimes against humanity statute weakens our ability to lead on international criminal justice and undermines our commitment to supporting justice and accountability for atrocity crimes. It also leaves the United States unprepared to deal with the range of potential atrocities occurring in Ukraine and other situations, which could leave the United States a safe harbor for perpetrators who come into U.S. jurisdiction.

Many atrocity crimes are not captured by the U.S. war crimes or genocide statutes, and having a crimes against humanity statute is necessary to secure criminal accountability. One does not need to look hard for examples of these crimes occurring in ongoing atrocity situations today.

At the recent discussions in the Sixth Committee of the UN General Assembly on the International Law Commission’s Draft Articles on crimes against humanity, Russia called out countries like the United States that lack a domestic crimes against humanity statute. Russia claimed that such countries should focus first and foremost on developing domestic legislation. On this, I agree. The administration strongly supports the enactment of legislation criminalizing crimes against humanity and allowing the Department of Justice to pursue prosecutions for these crimes.

In closing, as President Zelenskyy so aptly noted last month, there can be no secure or lasting peace without justice in Ukraine. Justice for the millions who have had their lives disrupted and destroyed as a result of the senseless, unprovoked, and illegal war of territorial conquest launched by Vladimir Putin. Holding Russia to account for its war crimes and other atrocities within Ukraine and against its people

is foundational to the defense of U.S. values and the maintenance of a peaceful, just, and secure world. With that I thank you and look forward to our conversation.

Tags

AtrocitiesColombiaCrimeCrimes Against HumanityCriminal JusticeEthiopiaEuropean UnionGender-based ViolenceGenocideLiberiaOffice of Global Criminal JusticeRussiaThe Secretary of StateThe GambiaUkraineUnder Secretary for Civilian Security, Democracy, and Human RightsWar Crimes

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