THE Washington Foreign Press Centre held a briefing where the United State Ambassador-at-Large for Global Criminal Justice Beth Van Schaack discussed the U.S. policy and plans to hold the Russian Federation accountable for its war crimes in Ukraine. Sadiq Yishau reports that the briefing, which had audience physically and via zoom, gives insight into the casualties of the invasion and other related issues. Excerpts:
Russia in Ukraine
It’s now been more than a hundred days since Russia relaunched its war of aggression within Ukraine, and the international community is united that this is a manifest violation of the UN Charter.
We’ve seen and have determined that a number of war crimes have been committed by Russia’s forces. At first, this took the form of what looked like deliberate and indiscriminate attacks against elements of the civilian infrastructure within Ukraine. This included schools, hospitals, theaters, playgrounds, et cetera. Then, once journalists, human rights advocates, and others got access to areas where Russian troops had been active and had then retreated, we saw violence really of a different order. This was much more interpersonal violence. We saw bodies with evidence of torture. We saw individuals who’d been executed with their hands tied behind their back. We have had and heard horrific accounts of sexual violence against women and girls. And these allegations continue to mount, and the reports from human rights organizations and journalists continue to come in.
What we are seeing is not the results of a rogue unit, but rather a pattern and practice across all the areas in which Russia’s forces are engaged. The United States has been very active in supporting a whole range of efforts towards accountability for these abuses. In addition to our multifaceted work on security assistance, on sanctions, on humanitarian assistance, et cetera, we are working with civil society actors and others to document abuses for future accountability purposes. We are supporting the Office of the Prosecutor General in her efforts to prepare war crimes files and cases, and some of those have been proceeding now in Ukrainian courts. We have also stood up a Conflict Observatory, which will be scouring open-source information, including satellite feeds and social media feeds, in order to bring together and then analyze data coming out of Ukraine and using some of the tools that are within the unique capacity of the United States to be able to collect and analyze.
My particular office is working closely with the Office of the Prosecutor General. We had a project in place prior to the February 24th invasion in which we were surging some experts who are veterans of the world’s international war crimes tribunals to the Office of the Prosecutor General in Kyiv to assist her, providing strategic guidance and operational support in pursuing war crimes cases. The office is very experienced – she had already launched a number of cases arising out of the Donbas and Crimea – but since the relaunch of the invasion on February 24th, the entire country of Ukraine has become an enormous crime base. And so the work ahead of her is extremely daunting. We have now pivoted and are starting to scale that work in order to make sure that she has the resources and expertise that she needs in order to bring these cases.
Partners in progress
We are also launching through implementing partners from the civil society sector what are called Mobile Justice Teams. These individuals will be multidisciplinary – again, veterans of the war crimes tribunals, experienced investigators and prosecutors, who will be working with regional prosecutors around the country as they bring cases within their particular spheres of operations. There will also be Mobile Justice Teams that will be thematic in terms of focusing on the use of starvation as a weapon of war, sexual violence against women of – and women and girls, attacks on cultural property. These are not crimes that ordinary prosecutors are used to doing in their daily lives, and so the hope is that having this expertise on the ground, in the field, will be helpful to enable these cases to move forward.
The United States is also supporting a range of multinational efforts to advance accountability. This includes cases that are being considered by the International Criminal Court. The new prosecutor, Karim Khan, has recently opened an investigation. I understand he’s in Ukraine right now working with local officials there to coordinate their efforts around prosecutions. We’re also supporting the Organization for Security and Cooperation in Europe, which has recently relaunched the Moscow Mechanism, which will take a second look at abuses committed since the last mechanism was deployed. There is a human rights monitoring mission that has been sent out by the Office of the High Commissioner for Human Rights in Geneva. I’ve just come from Europe, where I was – had meetings in Brussels, The Hague, Geneva, et cetera, to try and help coordinate some of these efforts. And there’s a whole range of civil society actors that are actively engaged in documenting these abuses from a trauma-informed perspective.
Finally, I’ll just close by saying that we are expressing our solidarity with victims everywhere. All parties are governed by the laws of war, and that includes Ukrainian forces, Russian forces, and others that are active within the theater of war within Ukraine, and all parties are obliged to adhere to the laws of war at the peril of war crimes prosecutions, because we know that serious violations of the laws of war give rise to individual criminal responsibility. That means that individuals can be held responsible – not just the direct perpetrators, but also individuals up the chain of command who are aware that their subordinates are committing abuses and who failed to do what is necessary to either prevent those abuses or to punish the perpetrators after the fact.
Bringing the criminals to book
We now have an increasingly interlinked system of international criminal justice, and the elements of that system include domestic courts in the territory in question; it includes domestic courts outside of that territory who are able to exercise what we call universal jurisdiction. And this is a type of jurisdiction available under international law for international crimes that are essentially a breach of international law, and courts around the world can bring cases under universal jurisdiction even if they have no nexus to nationality of the perpetrator, of the victim, or the place of commission. And then finally, we have regional and international courts that may also exercise various forms of jurisdiction. So as I mentioned, the International Criminal Court has opened a full-scale investigation following a referral by over 40 states, so there is a high degree of global consensus around the importance of the International Criminal Court exercising its jurisdiction.
Now, the ICC is based upon the principle of complementarity. It will step in when national courts with jurisdiction are either unable or unwilling to move forward with cases. So in the Ukrainian case, you can imagine the Ukrainian system potentially being overwhelmed by the number of cases that are out there, and so the ICC can step in and help with some of the maybe senior officials or charges that are not able to be brought under Ukrainian law because it doesn’t fully incorporate ICC crimes into the domestic penal code. That may be a good division of labor between an international court and a domestic court.
We’ve also seen Ukraine be quite effective at invoking other international courts such as the European Court of Human Rights and the International Court of Justice. And so the United States stands ready to assist with all of these efforts – in the Ukrainian courts, in foreign courts exercising various forms of extraterritorial jurisdiction, at the ICC, and then, again, courts adjudicating state responsibility like the ICJ or the European Court of Human Rights.
So to your second question, indeed the United States was originally funding in this area, as I mentioned. We had been working with other donor states across Europe to coordinate our assistance around human rights issues in Ukraine. We have now brought together the United Kingdom, the European Union, and the United States to create the Atrocity Crimes Advisory Group. This is a multilateral effort; all states are contributing funding to help support the work of the Atrocity Crimes Advisory Group.
This includes two components: one, an advisory group that will be located in Kyiv. They’re in the process now of moving back into Ukraine after Kyiv came under attack, and so they were on the border in Poland. The teams are now coming back into Ukraine.
And then the second component are these Mobile Justice Teams, which will then be deployed out into the field, working with regional prosecutors. This is an unprecedented effort, showing the United Kingdom, the European Union, and the United States fully supportive, hand in hand, in the effort to promote accountability for the war crimes and other atrocities that we’re seeing happening in Ukraine.
Commission of enquiry
The United Nations Human Rights Council has created a commission of inquiry to be focused on the situation in Ukraine, tracking violations of international criminal law and the laws of war by all parties. It’s staffed by very experienced members, who are quite adept at using international law and understanding abuses when they happen.
What’s important about some of these monitoring mechanisms is that their reports can be made public. Much of the information that gets collected by governments are often informed by classified sources, and so it’s difficult to go public with some of the details that individuals would like to see, including journalists who are covering these matters. But what’s important about commissions of inquiry and monitoring missions that may come with an international imprimatur is that they can share that information publicly. They’re getting stood up now. I understand that the commissioners are in place, and they’re hiring staff. And so the United States stands ready to support that effort.
When it comes to the petroleum issues, it’s not my world, honestly, at the Office of Global Criminal Justice. Our job is to inform the Department of State and then other elements of the interagency, including members of the Hill, the Congress, et cetera, who are interested in this work, on U.S. policy around war crimes, crimes against humanity and genocide, and atrocity crimes of that nature. We also coordinate multilateral responses, which is why we’re supportive of the work of the COI.
But the United States has issued a whole raft of multi-sectoral sanctions, including individuals within the government, private individuals, entities, corporate entities, and now, increasingly, members of Russia’s military. And so these sanctions regimes are also increasingly coordinated with our friends and allies in Europe and elsewhere to make it more difficult for entities to do business with Russian entities.
Russia’s report against Ukrainian nationalists
We are familiar with those reports. In fact, the Moscow Mechanism, which was deployed by the Organisation for Security and Cooperation in Europe, was very careful about documenting abuses on all sides, and that included allegations of potential custodial abuses by Ukrainian forces with respect to members of Russian forces who fell into their custody. All of the international mechanisms that I have discussed are focused on all parties to the conflict. None of them is one-sided. So, the prosecutor of the International Criminal Court has made that very clear in his remarks that even though the referral was inspired by the – Russia’s invasion of Ukraine, his remit is to look at all sides.
Now, what we’ve seen in practice is a vastly disproportionate degree of allegations when it comes to Russia’s forces and Ukrainian forces. And also, frankly, the response of the two sides has been very different. Where Russia has often responded with denial or misinformation, et cetera, to allegations that its forces are committing abuses, we have seen Ukrainian authorities acknowledge those abuses and insist that their members be brought to bear. The laws of war apply to all parties equally.
But that is where the equivalency ends here. We are seeing vastly disproportionate accounts of abuses when it comes to Russia’s forces as compared to Ukrainian forces. But any international effort should be focused on all sides and collecting information across the board.
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