Interview: How Will US Support Justice for Ukraine?

Options “run the gamut” from financial backing to amending domestic legislation to facilitate prosecutions.

Although the US is not a signatory to the Rome Statute that created the International Criminal Court (ICC), Washington has pledged its backing for the unprecedented efforts to prosecute those responsible for war crimes in Ukraine. Beth Van Schaack, US state department Ambassador-at-Large for Global Criminal Justice, told IWPR managing editor Daniella Peled what lessons should be learned from justice efforts in previous conflicts – and what forms US support now could take.

A special tribunal on the crime of aggression is a key Ukrainian priority. What routes do you envisage to a tribunal of this kind, and how can the US can support this?

The ICC has no ability to exercise jurisdiction over the crime of aggression in this situation because neither Ukraine nor Russia ratified amendments that came into force in 2018.

Ukraine has domestic provision that does allow for some prosecutions. At the same time, Ukraine has floated the possibility of a General Assembly resolution that would contemplate some form of special institution to determine accountability for the crime of aggression. This could be in the form of a special tribunal or in some hybrid form.

The United States is very focused on supporting existing accountability mechanisms and pathways, including support to the prosecutor general in Kyiv and his teams around the country. We've also welcomed the opening of the ICC investigation in Ukraine and are keen to contribute to what the Europeans are doing in terms of coordinating a joint investigative team.

When it comes to a dedicated institution, there are a number of interim steps that the international community could undertake while we think through what the right modality would be to ensure accountability for the crime of aggression.

The Dutch have very helpfully put forward the idea of an interim prosecutor's office (IPO) that they have offered to host. This would bring together Ukrainian and potentially international prosecutors to look at what evidence exists around the act of aggression. The IPO could also identify who else besides Putin bears the greatest responsibility for launching this war of aggression? That work can be done now, preserving evidence, taking testimony, etc, while the international community thinks whether to move forward on a new institution.

As these proposals are considered, the international community should be very conscious of limited resources and not detracting from existing institutions that need investment and cooperation from the international community.

What areas of cooperation are the US interested in pursuing with the ICC?

Historically there's been a number of ways that the US has supported the work of the ICC, and this really runs the gamut.

For example, we have constantly urged Sudan to hand over the suspects indicted by the ICC to the Hague so that they can face trial pursuant to a Security Council-mandated investigation. We can engage in information sharing, both individually and with partners. We can help with fugitive tracking. My office administers the War Crimes Rewards Program, which offers rewards for information leading to the arrest, transfer or conviction of designated individuals who've been indicted by a whole range of international or hybrid courts, including the ICC. We were instrumental in ensuring that Bosco Ntaganda, who then headed the M23, was taken to The Hague, and then later Dominic Ongwen, the Lord's Resistance Army commander whose sentence and verdict were just reaffirmed on appeal by the ICC.

We now have new legislation from Congress that suggests the US could provide forms of financial support to the Court as well, even as a non-member. There's also been consideration of whether the US could potentially contribute to the Trust Fund for Victims, which is working in a number of different countries, including the Central African Republic, the Democratic Republic of Congo and northern Uganda, where victim communities are still really suffering.

What lessons can be learned from previous experiences, for instance in Syria, when it comes to delivering justice in Ukraine? 

The Syria conflict offers an object lesson to what happens when you don't make justice and accountability a priority in the face of atrocity crimes. As the conflict unfolded, there was talk about accountability, but no concrete efforts emerged. Instead, the conflict just continued to metastasize, not only between the democratic opposition and the Assad regime, but then the introduction of ISIL triangulated the violence in terrible ways.

Now we are starting to see glimmers of justice in Europe under principles of universal and extraterritorial jurisdiction. The law enforcement authorities in Germany and other states have been able to work with diaspora communities in order to identify witnesses, evidence and lines of inquiry and to pursue charges against many individuals, including senior members of the Assad regime. The domestic realm has been really the only place we've seen justice for Syria.

We did endeavour to refer the matter to the ICC in 2014, but Russia and China vetoed that resolution. And, the political will just never materialised to establish a standalone justice institution. In the face of Security Council paralysis, the General Assembly created the IIIM (the International, Impartial and Independent Mechanism, the UN body tasked with collecting evidence to support potential war crimes prosecutions relating to Syria), which has done an amazing job of coordinating efforts, of serving as a repository of evidence, and of engaging in outreach to local documentation efforts and survivor groups. The IIIM operates not only as a kind of a clearinghouse but also a source of analytical rigour. The IIIM is able to produce thematic briefs that can be used by national prosecutors who may be unfamiliar with the situation in Syria, who may have never prosecuted a war crime before, or who may not understand how liability up a chain of command operates.

So in the absence of activity by the ICC or an international tribunal, the international community has still been able to move justice forward and in many respects revive the principle of universal jurisdiction and other forms of extraterritorial jurisdiction that then can be invokes in other conflicts. And I think we'll see courts around the world offering avenues for justice for the atrocity crimes being committed in Ukraine.

We are clearly going to see a huge volume of cases. How have Ukrainian institutions met the challenge and how is the US government supporting them?

The front line really is going to be Ukrainian courts. The Office of the Prosecutor General (OPG) and the War Crimes Unit are very active in identifying potential cases, collecting information and starting to bring charges against individuals, including some in absentia cases.

The US had a longstanding project with the OPG that dates back to the original Russian invasion.  We were supporting the deployment of experts who were veterans of the world's war crimes tribunals to assist the OPG in its work.

After February 24, we had to scale this project given the influx of new potential cases and a real need to prioritise investigations under the operative legal framework. The US made a 10 million US dollar investment to that project, and we were joined by the EU and the UK, who made their own donations of resources and personnel through the Atrocity Crimes Advisory Group (ACA). The ACA is now composed of experts from all over the world, many with a civil law background, with experience in trauma-informed approaches, with expertise investigating sexual violence, with a knowledge of international humanitarian law and the precepts of the Geneva Conventions, so that these cases can be brought effectively, but also fairly from the perspective of the defendants.

The ACA is composed of a prosecution support unit in Kyiv that's helping with some of the overall strategic questions. But then there are also mobile justice teams that can go out to the field, including immediately after attacks where the civilian infrastructure appears to have been deliberately targeted. They're able to work side-by-side with their Ukrainian counterparts to lock down the crime scene, to think about how to collect evidence, and to help with structuring interviews.

The US is also partnering with the joint investigative team that the Europeans, Ukraine and the ICC have pulled together. We participate in the Eurojust Genocide Network, which recently held sessions focused on Ukraine, and the Department of Justice has created a war crimes accountability team. Former Nazi hunter Eli Rosenbaum has been appointed a war crimes counselor to Attorney General Merrick Garland in this regard.

US law enforcement is looking at ways we can use our own law to potentially prosecute war crimes. Congress recently amended the 1996 War Crimes Act. When initially enacted, it only allowed for jurisdiction over war crimes when either the perpetrator or the victim was a US person. So it would not have been able to be activated with respect to the majority of war crimes being committed in Ukraine, which are being committed by Russia’s forces against Ukrainian civilians and prisoners of war. Congress now has removed that nationality requirement. If an accused, regardless of nationality, is present in the US and has been accused of committing a war crime against a protected person, regardless of nationality, we now have jurisdiction in US courts.

Our law is now better aligned with our obligations under the Geneva Conventions, but also with the legal frameworks of all our allies, who are increasingly bringing war crimes cases in their own courts.

What can Ukraine do in terms of adapting its domestic legislation to help deal with this huge amount of cases?

There is a draft bill that would strengthen the war crimes prohibitions within the penal code; add a crimes against humanity as a prosecutable crime, which does not yet exist in Ukrainian law; and enhance the ability to utilise command or superior responsibility. That doctrine allows for charges to be brought against superiors who fail to properly supervise their subordinates or to effectively prosecute offences when it's clear that abuses have happened.

Ukraine can obviously prosecute direct perpetrators and also individuals who have given orders to commit abuses, which is a form of direct responsibility. Where superior responsibility is useful as a prosecutorial tool is when investigators do not have proof of direct orders, but they have clear evidence that a superior had knowledge that their subordinate had committed, or was about to commit, abuses and failed to take the necessary and appropriate steps to either prevent that abuse or investigate and prosecute it, when warranted.

Absent changes to Ukrainian law, we can imagine a division of labour with the ICC, which of course has jurisdiction over crimes against humanity and can invoke superior responsibility under Article 28 of the Rome Statute. In this regard, we might envision individual war crimes being pursued in domestic courts and the ICC taking on individuals responsible for unleashing a widespread or systematic attack against the civilian population.

What’s your view on allegations that Russia is committing genocide? Do you think this is an approach that's likely to be able to lead to successful prosecutions?

Genocide is a difficult crime to prove. It requires proof not only of violence being committed against a protected group - and in this case it would be potentially be people of ethnic Ukrainian descent - but also an intent to destroy that group in whole or in part.

We often think colloquially of genocide as being mass killing. But the Genocide Convention lists other ways that genocide can be committed, including the imposition of conditions of life calculated to lead to the destruction of the group, the imposition of serious bodily or mental harm, the prevention of births within the group, and the transfer of children. The latter is reminiscent of Russia’s filtration operations and the children who have been forcibly separated from their family and ostensibly “adopted” within Russia, although this actually amounts to kidnapping.

It will ultimately be for individual prosecutors to determine whether or not they have sufficient evidence to satisfy each of the elements of genocide, and most particularly this question of intent. There are some prosecutors who are really keen to push the envelope to capture the expressive function of the law and to make a statement, whereas others will take a more conservative approach. They might reason that if they can get a conviction under a war crimes or a crimes against humanity theory, they might not expend prosecutorial resources to try and make a case that may be borderline.

We’ve seen this with a number of Syrian perpetrators who are being prosecuted only for terrorism offenses, and not war crimes or other atrocity crimes, because it's quite easy to charge them with membership in a designated terrorist group. For some victims, this can be unsatisfying because those individuals may also stand accused of committing acts of violence. But for many prosecutors, it's preferable to get a quick conviction and then move to the next perpetrator, rather than undertaking the hard work of proving the classification of an armed conflict, that the victims were “protected persons”, that a particular war crime was committed, and that the defendant was responsible.

Prosecutors have different approaches, and when they're faced with an enormous docket, they will find a more expedient way to get an outcome that enforces the law, but doesn't necessarily push the envelope in a way that advocates would like to see.

For more of IWPR's coverage see: Ukraine Justice Report.