War Crimes and Accountability in Ukraine

THE WASHINGTON FOREIGN PRESS CENTER, WASHINGTON, D.C.

MODERATOR:  Good morning and welcome to this Washington Foreign Press Center briefing.  My name is Bill Martin and I’ll be the moderator.  And now it’s my distinct pleasure today to introduce our briefer, Ambassador-at-Large for Global Criminal Justice Beth Van Schaack.  Ambassador Van Schaack will discuss U.S. policy and plans to hold the Russian Federation accountable for its war crimes in Ukraine.

This briefing is on the record; it is being livestreamed.  After we hear from the ambassador, we will have a question-and-answer session.  This briefing will end no later than noon.  The FPC will post the transcript of this briefing and the video afterwards on our website, which is fpc.state.gov.

And with that, I’m going to turn this briefing, this program, over to Ambassador Van Schaack.  Ambassador Van Schaack, over to you.

AMBASSADOR VAN SCHAACK:  All right.  Thanks so much, Bill.  Thanks so much for joining us, everyone, this morning.  It’s really great to see you, and I appreciate your coverage of these important issues.  As you well know, 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.

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.

So with that, I’m really pleased to be here, and I look forward to your questions and to the conversation that ensues.

MODERATOR:  Thank you, Ambassador Van Schaack, for those opening remarks.  Now I’d like to open the program up for questions.  I will take a few questions first from those in the briefing room and then a few questions from those on Zoom.  Please raise your hand, or your virtual hand if you are on Zoom, if you would like to pose a question.  If I call on you, please give your name and your outlet.  If you are on Zoom, please unmute yourself and turn on your camera.  You will see yourself on the video.

And for our first question I would like to call on Dmitry Anopchenko of – from Ukraine.  Dmitry.

QUESTION:  Good morning.  Thank you very much for doing this and thank you very much, Foreign Press Center colleagues.  Madam, I’d like to ask you two questions, please.

Firstly, you mentioned a couple of lines of investigation – Office of the Prosecutor General of Ukraine, International Criminal Court, OSCE, Human Rights Council, but what is your vision about the final result?  What is your understanding?  Should this case go to international court in Hague, or Ambassador Taylor mentioned the possibility to call for the special tribunal?  Because my understanding of the case is that collecting evidence is – depends on the body in which the case will go as a result.

And secondly, Ned Price told a couple of weeks ago in the State Department during the briefing that it is a group of advisors who are working outside of the Ukraine, including former officials, former U.S. members of the prosecutor team.  So could you explain what’s their role, and do you have anyone on the ground in Ukraine right now?  Because as Ned explained, they were outside of the Ukraine but close to the border.  Thank you.

AMBASSADOR VAN SCHAACK:  Thank you very much, Dmitry, for those two questions.

So your first question is a great one.  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.

MODERATOR:  Okay.  Thank you.  And now I’d like to call on Ali from Pakistan.

QUESTION:  Thank you so much.  This is Jahanzaib Ali from ARY News TV Pakistan.  United Nations has also formed a commission to investigate possible war crimes in Ukraine, but it had not yet managed to establish contact with Russia.  Are you also trying to establish any contact with Russian authorities or working with the UN on this issue?

And secondly, despite these war crimes, a few countries like India and China are becoming an increasingly vital source of oil revenues for Moscow.  What are your concerns regarding this?  Because more countries are likely to follow the footsteps of India and China.  Thank you.

AMBASSADOR VAN SCHAACK:  Yeah.  Thank you very much for those questions.  Indeed, 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.

MODERATOR:  Okay. Now I’d like to take a few questions from the folks who are here on Zoom.  And I’d like to start with Yulia Olkhovskaya of Channel One.  I believe, Yulia, you had an advance question you wanted to pose to the briefer.  Yulia, please unmute yourself and pose your question.

QUESTION:  Hi, thank you so much for taking my question.  Yeah.  So according to Russia, Ukrainian nationalists have been committing potential war crimes during the last eight years in Donbas region.  So Russian Foreign Ministry submitted a report to the international organizations, including UN, describing all those crimes.  Are you familiar with this report and if there’s any international investigation of those crimes committed by Ukrainians?

AMBASSADOR VAN SCHAACK: Thank you, Yulia, very much for that question.  And the short answer is yes, we are familiar with those reports.  In fact, the Moscow Mechanism, which was deployed by the Organization 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.

MODERATOR:  Okay, thank you.  Now our next question will be from Danila Galperovich, Danila, from Voice of America.  Danila, please unmute yourself and pose your question.

QUESTION:  Thank you very much indeed.  Ambassador, thank you for doing this.  So today in Kyiv, in Ukraine, representatives of the UN war crimes commission said that Russia does not cooperate and does not respond to their requests.  And so how international justice could proceed if Russia doesn’t cooperate?  And what mechanisms does the United States have to bring those responsible for war crimes to justice?

And another question:  I recently interviewed Professor David Crane, who you probably know very well, who suggested that United Nation General Assembly could establish some special body to investigate war crimes, somehow detouring UN Security Council, as it actually did for Syria.  So to what extent do you think this is possible?  Thank you very much.

AMBASSADOR VAN SCHAACK:  Yeah, thank you very much for those two questions.  First, when it comes to cooperation, we would obviously urge all parties to cooperate with international efforts to investigate potential war crimes, crimes against humanity, being committed in Ukraine.  It is in the interests of all parties to have those investigations be fulsome, be fully fair, have access to all available information.  If there are particular defenses that might be put forward, those should be aired and presented, and evidence provided so that the prosecutors have the full scope of information about what happened with respect to particular incidents.  And frankly, any individual defendants deserve to have a full defense mounted on their behalf.  They deserve defense counsel.  They deserve fair process, fully respecting the fair trial guarantees under international human rights law.

When it comes to other potentially new international institutions in the justice space, our – at the moment, the United States’ approach has been to support existing mechanisms.  As I mentioned earlier, there’s a broad array of bodies operating here.  There are bodies that are collecting information, preserving it, authenticating it, and analyzing it for future accountability purposes.  There are also international and domestic courts that are pursuing investigations, looking at potential charges to be brought.  And so whether or not we need an additional institution I think remains to be seen.  We’re obviously familiar with some of those proposals, and we’re looking at them quite carefully and seeing where there may be international support for those institutions moving forward.

They are legally available, and we have seen the General Assembly occasionally step in and create investigative mechanisms where the Security Council has been blocked because Russia has exercised its veto, and you mentioned the situation of Syria.  That’s a great example of that, where an ICC referral that had quite a bit of support from the international community ultimately failed at the Security Council precisely because Russia, with China in tow, exercised their veto and that prevented that referral from going forward.  And so the General Assembly is increasingly flexing its multilateral muscles in the face of this ability at the Security Council.  Thanks so much for your question.

MODERATOR:  Yea, we’ll go back to the briefing room, please, for this question.

QUESTION:  Good morning.  My name is Olga Koshelenko.  I’m from Ukraine, 1+1 Media, and my question is:  We have a part of Ukrainian territory under Russian occupation right now, and people there don’t have access to police or to office of general prosecutor.  From your perspective, do they have some possibility to protect their rights and to file those crimes they have on occupied territories?

AMBASSADOR VAN SCHAACK:  Yes.  Thank you very much, Olga, for that question.  Indeed, there are swaths of Ukraine that are now under occupation, and under international humanitarian law, Russia, as the occupying power, owes special obligations to those populations – most importantly, humane treatment.  And we’ve heard some very concerning stories about individuals being subjected to so-called filtration camps where they are held against their will in an arbitrary detention; where they are being interrogated about potential connections to Ukrainian forces, opposition forces within those occupied territories; and potentially also being deported outside of the country.  All of this would be in breach of the obligations that are owed by occupying powers to the occupied population.

In terms of your question about gaining access to investigators and others who are collecting, analyzing, documenting, preserving, authenticating information, it’s an extremely good question.  We are, however, at a point where we have multiple digital platforms and tools that are available, so that it’s no longer necessary for individuals to be physically present to take the testimony of survivors and victims.  We can now use a whole range of digital tools to take those testimonies and then preserve them.  We can lock down the metadata to ensure that there’s no tampering.  Each individual digital artifact can be individually marked with what’s called a hash, which makes sure that if there’s any change at all to the digital fingerprint of that particular item, it will be revealed, and so we can ensure that those testimonies are preserved.  And I know that there are investigators and documentarians now working extraterritorially to reach those individuals that are in occupied territory so that their stories can be part of the evidentiary record of what’s happened following Russia’s relaunch of this invasion of Ukraine.

MODERATOR:  Okay, I’m not seeing any questions at this time.  I think I’d like to just ask Ambassador Schaack if you have any additional comments that you’d like to make before we —

AMBASSADOR VAN SCHAACK:  No, I just – again, expressing my appreciation to all of you for covering this issue.  Some of this can be incredibly technical, but I think the important takeaway is that the world is increasingly united about the importance of justice and accountability as a global response to what’s happened within Ukraine.  This is a new Nuremberg moment when the degree of consensus within the international community is incredibly striking.  And we haven’t seen it since – there’s been a few moments in time – after Nuremberg, we saw it in the mid-’90s after the fall of the Cold War and the Soviet Union dissolved.  Russia then became a very constructive member of the international community.  The Security Council was increasingly able to act, creating ad hoc tribunals for the former Yugoslavia and for Rwanda.  This is now a third period where we’re seeing this level of consensus.

And it’s actually quite sad in a way to see because during the Nuremberg era, Russian jurists were central to conceptualizing that architecture.  They sent judges, they sent prosecutors, working side-by-side with the victorious allies to stand up the Nuremberg Tribunal and to essentially launch the system of international criminal justice that we now see so robust today in The Hague and elsewhere.  And Russia has sadly turned its back on that very proud legacy and now is the subject of a global investigation for war crimes and other atrocities.  And so I would urge Russian authorities to bring their conduct back into compliance, and we hope for a peaceful resolution of the conflict.  Thank you so much.

MODERATOR:  So with that, I will end this session.  I would like to give my special thanks, Ambassador Van Schaak —

AMBASSADOR VAN SCHAACK:  My pleasure.

MODERATOR:  — for that excellent briefing, and to all the FPC journalists who participated both here in person and online.  Thank you.  This concludes today’s briefing.

AMBASSADOR VAN SCHAACK:  Thank you.