Ambassador Van Schaack’s Remarks on the U.S. Proposal to Prosecute Russian Crimes of Aggression

Introduction

Honorable delegates and colleagues. It is an honor and privilege to address you as the sixth U.S. Ambassador-at-Large for Global Criminal Justice.

I feel particularly privileged to be speaking alongside our friends and colleagues who join us from Ukraine.  The bravery and strength you and your country have shown this past year cannot be overstated.  We know you are defending shared values on the battlefield, in diplomatic exchanges across the world, and in different stadiums of justice.  These are the very principles undergirding peace and security built by the international community after the Second World War, which Russia has violated so blatantly.

We know that today’s fight for justice is not only about defending Ukraine, its sovereignty, its territory, and its people’s right to live a life of peace and dignity. It is equally about defending the foundations of peace and security that underlie the UN Charter.

Putin’s War of Aggression & The Ensuing Atrocities

We are now over a year into the Kremlin’s brutal full-scale invasion of Ukraine, a war that continues to result in devastating human costs with thousands of civilians killed, millions forced to flee their homes, and historic cities pounded to rubble.

There is no question that Russia’s aggression against Ukraine is a manifest violation of the UN Charter. This is a war being waged through the commission of war crimes, crimes against humanity, and other atrocities. Indeed, members of Russia’s forces and Russian officials have committed international crimes in every region in which military forces have been deployed. These include the unlawful transfer of Ukrainian civilians—including thousands of children—within Russia-occupied parts of Ukraine and the deportation of thousands of Ukrainian civilians from Russia-occupied parts of Ukraine to Russia as part of its so-called filtration operations—a grave breach of the Fourth Geneva Convention.

Just last month, Vice President Kamala Harris announced at the Munich Security Conference that Secretary of State Antony Blinken has determined that members of Russia’s forces and other Russian officials have committed crimes against humanity.  This determination followed extensive analysis by the Department, including my office, of information indicating that members of Russia’s forces have committed, among other things: execution-style killings of Ukrainian men, women, and children; the torture of civilians in detention, including through beatings, electrocution, mock executions, and threats of summary execution; and rape, primarily (but not exclusively) of Ukrainian women and girls.

In addition to this litany of atrocities, members of Russia’s forces, alongside other Russian officials, have deported thousands of Ukrainian children, some of whom have been subjected to “adoption” by families in Russia even though they have guardians in Ukraine, as detailed in the independent analysis by the U.S.-funded Conflict Observatory in a recent report.

As Secretary Blinken explained in his statement “[t]hese acts are not random or spontaneous; they are part of the Kremlin’s widespread and systematic attack against Ukraine’s civilian population.”  Indeed, the images, documentation, and witness accounts suggest these atrocities are not the acts of rogue units or individuals; nor are they isolated or incidental acts. Rather, they are part of a deeply disturbing pattern of abuses reported across all areas where Russia’s forces are deployed. And they are consistent with what we have seen from Russia’s military engagements in Chechnya, in Syria, and in Georgia.

Support for Multifaceted Accountability Efforts

In response to these events, the international community has activated a number of justice initiatives since Russia’s reinvasion a year ago. Given the justice and accountability imperatives occasioned by this brutal war, the U.S. government is contributing to, and stands ready to assist, the range of documentation efforts underway and all pathways to accountability.  Our contributions to justice include: training and technical assistance for civil society efforts to gather, document, and report on violations of international humanitarian law; expanding access to justice for victims and survivors of atrocities and other abuses; data collection, reporting, and information sharing on human rights abuses and atrocities including through analysis of satellite imagery and other data feeds; forensic assistance focused on the missing and disappeared, laying the foundation for restorative justice; and enhancing the ability of civil society, journalists, and other partners to safely and securely share information. We also helped to launch the investigations conducted by the UN Commission of Inquiry on Ukraine and the expert missions of the Moscow Mechanism of the Organization for Security and Cooperation in Europe.

The International Criminal Court

The International Criminal Court Office of the Prosecutor has now come forth with successful petitions that resulted in the Court issuing arrest warrants for President Vladimir Putin and Maria Lvova-Belova, Russia’s Commissioner for Children’s Rights, for terrible crimes against Ukraine’s children. As President Joe Biden noted, by attempting to steal Ukraine’s children, Russia is also endeavoring to steal Ukraine’s future.  The United States appreciates the significance of the announcement regarding the arrest warrants issued by the ICC, and President Biden has publicly stated that he believes the warrant for President Putin’s arrest is justified.

The ICC occupies an important place in the ecosystem of international justice, and the United States supports the investigation by the ICC Prosecutor, who received an unprecedented referral of the situation in Ukraine by 43 States Parties last year.

At the end of last year, Congress passed, on an overwhelmingly bipartisan basis, legislative amendments to facilitate U.S. cooperation with the ICC relating to the situation in Ukraine.  The legislative amendments make several important changes to U.S. law:

First, they make clear that the U.S. is not prohibited from assisting with ICC investigations and prosecutions of foreign nationals related to the situation in Ukraine, including support to victims and witnesses.

Second, they remove funding prohibitions in connection with such investigations and prosecutions.

Third, they permit the ICC to conduct in the United States investigative activities focused on foreign persons related to the situation in Ukraine that are undertaken in concurrence with the Attorney General.

Fourth, they enable the prosecution of individuals who stand accused of committing war crimes so long as they are present in the United States.

This new legislation follows a unanimous Senate resolution describing the ICC as “an international tribunal that seeks to uphold the rule of law, especially in areas where no rule of law exists.”  The implementation of the new legislative amendments to help the ICC Prosecutor is under review.

Complementarity in Action

As significant as these ICC arrest warrants are, the majority of cases arising out of this war will be prosecuted in Ukrainian courts. The situation in Ukraine thus exemplifies the principle of complementarity in action. The United States is continuing our support to Ukraine’s Office of the Prosecutor General, who is working to document, investigate, and prosecute over 80,000 potential war crimes—a number that does not yet include consideration of the horrors that are unfolding in areas still under Russia’s occupation or control.

Our assistance to the Office of the Prosecutor General includes working to hold perpetrators accountable for their war crimes and other atrocities through the Atrocity Crimes Advisory Group for Ukraine (ACA) launched with the European Union and the United Kingdom. Under the ACA umbrella, we and our implementing partners have deployed teams of multinational and multi-disciplinary international investigators and prosecutors to Ukraine—including to sites of alleged war crimes—to assist the Office of the Prosecutor General in its critical efforts to document the commission of crimes, preserve potential evidence, engage witnesses and survivors in a trauma-informed way, prepare war crimes dossiers for prosecution, and ultimately pursue effective and fair cases in Ukraine’s courts.

While working to strengthen existing pathways to accountability in Ukraine’s courts, we also hope to contribute to cases that might be brought in courts around the world if they establish jurisdiction over individuals accused of committing international crimes in connection with the war in Ukraine.

U.S. Support for Investigating and Prosecuting the Crime of Aggression

This brings us to the crime of aggression. As you’ve heard today, there are compelling arguments for why this crime must be prosecuted alongside the Rome Statute crimes.  In my public remarks, I often emphasize that we are at an historic moment for international justice. Today’s efforts reflect the tremendous legacy of the Nuremburg and Tokyo Tribunals established after World War II, the work of the ad hoc international tribunals dedicated to the conflicts in the former Yugoslavia and Rwanda, the establishment of a permanent International Criminal Court, and the plethora of international justice mechanisms that have followed since.

These were times when the world came together to deliver a measure of justice in the face of atrocities. I am proud that at each of these moments, the United States supported the advancement of international criminal law and accountability. At Nuremburg, for example, the United States led the prosecution of the crime of aggression—deemed “crimes against the peace” in the lexicon of the era.

Again now, at this critical moment in history, I am pleased to announce that the United States supports the development of an internationalized tribunal dedicated to prosecuting the crime of aggression against Ukraine.  Although a number of models have been under consideration, and these have been analyzed closely, we believe an internationalized court that is rooted in Ukraine’s judicial system, but that also includes international elements, will provide the clearest path to establishing a new Tribunal and maximizing our chances of achieving meaningful accountability.  We envision such a court having significant international elements—in the form of substantive law, personnel, information sources, and structure. It might also be located elsewhere in Europe, at least at first, to reinforce Ukraine’s desired European orientation, lend gravitas to the initiative, and enable international involvement, including through Eurojust.

This kind of model—an internationalized national court—will facilitate broader cross-regional international support and demonstrate Ukraine’s leadership in ensuring accountability for the crime of aggression. It also builds upon the example of other successful hybrid justice mechanisms.

We are committed to working with Ukraine, and peace-loving countries around the world, to stand up, staff, and resource such a tribunal in a way that will achieve comprehensive accountability for the international crimes being committed in Ukraine.

The International Centre for the Prosecution of the Crime of Aggression

A tribunal of this type will complement the work that will be undertaken by the new International Centre for the Prosecution of the Crime of Aggression (ICPA) being established in the Hague, by ensuring that the information and evidence collected by that center can be quickly and effectively put towards accountability purposes.

As envisioned, the ICPA will coordinate the investigation of acts of aggression committed against Ukraine and build criminal dossiers against those leaders responsible for planning, preparing, initiating, or waging this war of aggression for future trials.  The center’s efforts will be complementary to other institutions dedicated to promoting justice and accountability.  Apart from assisting any eventual prosecution of the crime of aggression, the evidence ICPA gathers could be of value to the ICC and national investigations of alleged war crimes, crimes against humanity, and genocide; for further sanctions designations; and in establishing compensation claims related to tremendous damage caused by Russia’s aggression that will be collected by the registry of damages being stood up.  As the first post-WWII institution empowered to actively investigate the crime of aggression, the center is poised to advance accountability for the crime of aggression in the context of an egregious set of facts flowing from Russia’s war of aggression against Ukraine.

Conclusion

This is truly a historic moment in international criminal law.  Just as the Allies at the end of the Second World War advanced the imperative of justice and ushered in a new era of accountability for the worst imaginable crimes, it falls to all of us to ensure that the promises of Nuremberg are not mere history.

The United States remains unwavering in its support of the government and people of Ukraine as they defend their country and their freedom.  The people of Ukraine deserve justice, and we must all remain united in holding those responsible to account, no matter how long that takes.