Digital Press Briefing with Dr. Beth Van Schaack, Ambassador-at-Large for Global Criminal Justice

MODERATOR:  Hello.  I would like to welcome journalists to today’s on-the-record briefing with Dr. Beth Van Schaack, U.S. Department of State Ambassador-at-Large for Global Criminal Justice.  As we mark one year of Russia’s full-scale invasion of Ukraine this week, Ambassador-at-Large Van Schaack will discuss the resulting devastating humanitarian crises caused by Russia’s war, as well as U.S. efforts to seek justice and accountability.  She will take questions from participating journalists.

With that, let’s get started.  Ambassador-at-Large Van Schaack, thank you so much for joining us today.  I’ll turn it over to you for your opening remarks.

AMBASSADOR VAN SCHAACK:  Well, wonderful.  Thank you so much for organizing this, and I really appreciate the interest coming from the region.  I’m really thrilled to hear your questions and engage in a dialogue this evening.

As was mentioned, of course, we’re now a year into Vladimir Putin’s full-scale invasion of Ukraine, and this is a war that is continuing to result in devastating human costs.  We have seen thousands of civilians killed, millions of Ukrainian citizens forced to flee their homes.  Many have become refugees in other countries, and historic cities have been pounded to rubble.

While the epicenter of the suffering is in Ukraine, Russia’s war of aggression has really strong reverberations around the entire globe in the form of rising food insecurity, disrupted supply chains, and an emergent energy war.

It’s very clear that Russia’s aggression against Ukraine is a manifest violation of the United Nations Charter, and many of the acts in Ukraine constitute war crimes and crimes against humanity.  As the Vice President Kamala Harris of the United States announced at Munich just two weeks ago – or just several day ago, Russia’s actions also constitute crimes against humanity, including we’ve seen acts of murder, rape, torture, and the deportation of Ukraine’s children.  There is mounting evidence that these mass atrocities are being committed in every region of Ukraine, wherever Russia’s forces are deployed.

Now, it’s important to note that caving to Russia’s aggression and accepting its attempts to redraw the borders by force of Ukraine tears up the system of peace, international peace and security that has made the world more secure since World War II.  The invasion violates the UN Charter and the principles of sovereignty and territorial integrity that are enshrined within it.  And as Russia continues to violate international law, it’s incredibly important that the international community stay focused and united around the imperative of justice.

Winning the war is more than just winning on the battlefield; it also means winning the fight for justice.  There are three pathways that are currently operative and are starting to investigate war crimes and other atrocities being committed in Ukraine.  This includes Ukraine’s domestic courts, and the prosecutor general has recorded over 70,000 incidents of potential war crimes and other atrocities.  The European Union, the United Kingdom, and the United States are supporting the work of the Ukrainian prosecutor general in a project called the Atrocity Crimes Advisory Group.  This involves sending experts to the field to work side by side with Ukrainian counterparts.

The second pathway to justice is the International Criminal Court, which is seized of jurisdiction because Ukraine has consented to it operating.  And then finally, we have seen courts around the world opening investigations of war crimes and other atrocities in Ukraine under principles of extraterritorial jurisdiction, and European prosecutors are particularly interconnected.  They have formed a joint investigative team, and they are working under the umbrella of the Eurojust/Genocide Network.  So all of these pathways to justice have been activated.

And with that, I’m very happy to take questions about any of these issues, and I look forward to our conversation.

MODERATOR:  Thank you, Ambassador-at-Large Van Schaack.  We will now turn to the question-and-answer portion of today’s briefing.

Our first question was received in advance from Mike Navallo of ABS-CBN News in the Philippines.  Mike asks, “What impact will U.S. President Joe Biden’s Kyiv visit have on the Russia-Ukraine war?  Russian President Vladimir Putin is scaling up his rhetoric against the West, blaming it for the war.”

AMBASSADOR VAN SCHAACK:  Well, let’s be clear that Russia chose this war, and the world is simply responding to hold Russia accountable for all of the atrocities that it’s committing in Ukraine, including the original sin of launching this war of aggression in the first place.  I think it’s the case that everyone on the planet wants this war to end as quickly as possible, but of course it has to be on terms that respect Ukraine’s sovereignty and territorial integrity.

As it has been said before, if Russia stops fighting and withdraws, then this war will end; if Ukraine stops fighting, then Ukraine will end.  Russia really remains the sole obstacle to peace in Ukraine, and the savage attacks are the latest demonstration that President Putin has no real interest in meaningful diplomacy.

So the war is escalating because of Russia’s choices, not because President Biden visited Ukraine.

MODERATOR:  All right.  We have another question received in advance from Elvis Chang of NTDAPTV in Taiwan.  Elvis asks, “If the CCP regime is involved in military support to Russia, will it also be held accountable legally?”

AMBASSADOR VAN SCHAACK:  Well, I don’t want to engage in hypotheticals, but of course we know that there are ways that states can also become implicated in acts of aggression.  So if you look at the definition of the crime of aggression in General Assembly Resolution 3314, it includes allowing the use of your territory to launch an act of aggression by another state.  So that’s one of the grounds on which a third state could be implicated in acts of aggression that are committed by Russia.

What we also have seen is that there are a whole range of doctrines that can be used for individuals or groups that are complicit in violations of international criminal law, but that would of course depend on the particular facts.

MODERATOR:  All right.  Our next question goes to Xiaowen Ni of Hong Kong Phoenix TV in Beijing, China.  She asks – Xiaowen asks, “The U.S. is about to announce $500 million in military aid to Ukraine, but the constant aid has left a protracted war with more than 8 million Ukrainians displaced and eager for it to end.  What would you say to those people, when will the war end?”

AMBASSADOR VAN SCHAACK:  Well, as I said before, the war will end when Putin decides to stop the war, at this point.  He really holds the cards here because this is a state that has invaded its sovereign neighbor.  This is a state that is committing atrocities across the country.  This is a state that is deliberately attacking elements of the civilian infrastructure.  This is a state whose forces are executing Ukrainian citizens in the back of the head when their hands are tied behind their back.  This is a state whose forces are committing rape and other forms of sexual violence against women and girls and even men and boys in Ukraine.

So the war will end when Putin decides that he’s willing to participate in genuine efforts at diplomacy.  There are moves afoot this week in the emergency special session at the General Assembly to put forward a resolution that would conceptualize a just peace, and I think the entire world is hopeful that Russia will participate in these negotiations at the General Assembly and will be willing to lay down its arms in order to engage in robust and genuine, legitimate negotiations in order to come to a final and just peace.

MODERATOR:  Thank you, Ambassador-at-Large Van Schaack, for that answer.  Do we have any raised hands?  Okay, we have a question that has come in from Sabine Gusbeth of Handelsblatt.  Sabine asks, “What do you expect from the position paper for a political solution of the Ukraine war announced by Wang Yi in Munich?”

AMBASSADOR VAN SCHAACK:  Well, I’ll be honest – I’m not familiar with that.  My brief is much more on the justice and accountability side of things.  I was not in Munich at the Security Council*, so I can’t speak in an educated way about that.  But I think the world is very keen to see good ideas come forward, and so the international community and the General Assembly, I think, would welcome other ideas about how to bring this terrible war to a close.

I think it’s important to note that Russia itself, the country, is really suffering from the strategic setback on a global stage.  The military itself has lost tens of thousands of soldiers.  These young men have been deployed into a battlefield about which they probably know very little.  They are under-trained, they are ill-equipped, and they are unsupervised.  And as a result, they’re effectively being used as cannon fodder in this terrible war launched by Putin.

And so even while we, I think, feel empathy for the situation of Ukraine because it’s the country that’s under attack – it’s the country whose citizens have been the subject of a widespread and a systematic attack – we should not lose sight of the fact that Russians as well are suffering under this war – not only in the loss of life because of soldiers being deployed who are ill-prepared to fight this war, but also the shrinkage of the economy, selling oil at a steep discount.  Russia is being gradually cut out of international markets, there are increasing sanctions being introduced on a daily and weekly basis that are cutting even deeper into Russia’s industrial economy now in the – as we enter the second year of this war.  Day by day, under sanctions Russia’s economy is becoming less vibrant and less productive.  All of this is going to impact the country for many years to come, and so anything that can be done to bring this war to a close I think would be very welcome.

MODERATOR:  All right.  Our next question is back to Mike Navallo of ABS-CBN News in the Philippines.  Mike asks, “Ambassador, if you could kindly walk us through the obstacles in each of the pathways to justice you mentioned.  For instance, are there issues with respect to presence of those who will be charged?  Do they allow trial in absentia?  And to add, what sort of sanctions can they impose?”

AMBASSADOR VAN SCHAACK:  Yes, thank you very much.  That’s a terrific question.  And the primary obstacle really is one of custody of the accused.  Many courts do require custody in order to launch a full-scale adversarial prosecution.  The International Criminal Court, for example, cannot proceed in absentia.

Now, that said, there are a number of preliminary steps that many courts can take.  So for example, the International Criminal Court can issue arrest warrants.  Those arrest warrants can be shared with Interpol and can be made then global.  They can also – the International Criminal Court can also accept evidence and hear witness testimony in order to preserve that testimony and ultimately can confirm charges against individuals.  So these are some preliminary steps that the ICC can take even without custody of the accused.

Some domestic courts are able to exercise in absentia jurisdiction, and that includes actually Ukrainian courts.  Their legal system allows that.  And so they have had a few cases that have gone forward.  When they’ve been able to identify a perpetrator, they’ve given notice to that perpetrator that charges have been brought.  The perpetrator, of course, has not appeared to defend those charges, and so Ukrainian courts have proceeded against those individuals in absentia.

Of course, it will be more and more difficult to go up the chain of command.  Ukraine has custody over some prisoners of war and can proceed against those individuals in its courts.  But getting up the chain of command to the architects of violence is going to be more of a challenge.  And so long as President Putin and his inner circle remain within Russia and remain in power within Russia, they will in essence enjoy impunity.  That said, they’ll also be trapped in their own country, so gone are their days that they can visit Paris and go shopping or visit their children if their children are studying abroad.  All of this will be foreclosed because there will be potentially international arrest warrants out for them.

And it’s important to emphasize in this work that there is no statute of limitations for war crimes or crimes against humanity, so these arrest warrants can remain open really for the rest of Putin’s life.

MODERATOR:  All right.  Our next question is in the live queue with Mike Navallo of ABS-CBN in the Philippines.  Mike, I’m going to allow you to talk and you can unmute yourself now.

QUESTION:  Thank you, Catherine.  And Ambassador, apologies for the many questions I have.  I’m taking this opportunity to ask.  I do want to ask, though, with respect to Putin, to what extent can we hold him accountable for his words, his speeches, his rhetoric?  Of course, it’s expected that they will try to get some evidence about orders he specifically gave to those under this command, but what about his words?  How significant are those words?  Thank you.

AMBASSADOR VAN SCHAACK:  Yeah.  Thank you, Mike, for all the great questions.  I appreciate it.

There is a crime of incitement to commit crimes, and so depending on what the legal framework is in a particular court it may be possible to bring incitement charges.  But you mentioned other ways that leaders can be held responsible, and there’s basically two.

So one would be as a direct perpetrator, and this would include issuing orders to subordinates to commit abuses.  We don’t know whether those orders have been submitted, and there will be obviously leaked documents and insider witnesses who will be able to testify to that, and so that will emerge, I am sure, in cases if they go forward.

But there’s also a doctrine of superior responsibility, which allows for a superior to be held responsible for the crimes of their subordinates if they superior knew or should have known that the subordinate was committing abuses and the superior failed to take the necessary steps to either prevent those abuses from happening or to appropriately investigate and punish them after the fact.

So there are multiple ways in which individuals even at the very top of the Russian hierarchy could be held responsible for events that are happening on the ground in Ukraine.

MODERATOR:  All right.  Do we have any final questions from the queue?  Eunice Yoon from CNBC would like to ask a question.

QUESTION:  Hello.

MODERATOR:  Yes, your line is open.

QUESTION:  Can you hear me?

MODERATOR:  We can hear you.

QUESTION:  Oh, hi, thank you so much.  Thank you so much for the question.

You mentioned legal penalties that Russian officials could face.  What legal penalties could Chinese officials or entities face if China engages in lethal support, as the U.S. is concerned about?

AMBASSADOR VAN SCHAACK:  Yeah.  As I mentioned, I don’t want to really engage in speculation, but I did – I realize I didn’t quite answer Mike’s question about legal penalties.

So the International Criminal Court can only issue a verdict for imprisonment.  There is no death penalty before the International Criminal Court.  And then depending on if there were other national courts that would be exercising jurisdiction, the penalties that could be accorded to any defendants that would be fully convicted would depend upon what’s available.  So imprisonment of a term of years, et cetera.

We have also seen efforts to identify issues of restitution and recompense for all of the harm that has been created.  So the General Assembly in a resolution several months ago expressed support for the creation of a registry of damages where individual Ukrainian citizens and businesses can register damage that they have experienced at the hands of Russia’s forces in connection with this war.

And so if and when assets are made available and can be liquidated, those assets could help to compensate individuals who have lost either property or even lost their loved ones in this terrible war.  And so that’s another potential accountability avenue that’s available.

MODERATOR:  Great.  And with that, Ambassador-at-Large Van Schaack, if you have any closing remarks I’ll turn it back over to you.

AMBASSADOR VAN SCHAACK:  Yes, just to say that it’s so clear that Russia has violated international law here on so many different levels.  They’ve wreaked havoc and destruction on cities around Ukraine and also on ordinary civilians who are just trying to live their lives.

Russia has created a vast transnational system for – of filtration and deportation, and thousands of individuals have been put through this filtration system and have often been deported to very far-flung areas of Russia.

The Conflict Observatory, which has been funded by the U.S. State Department but it’s an independent entity based at Yale University, has recently put out a number of reports using open source investigations to identify different types of violations of international law.  And the most recent report focused on children and the extent to which Russia’s officials have separated children from their parents and have moved them into and potentially engaged in fraudulent adoption processes within Russia.  They have also – we have also seen the looting and destruction of precious cultural heritage within Ukraine.  This is also the subject of a report by the Conflict Observatory.

So Russia’s war against Ukraine presents a profound moral issue that the international community needs to grapple with, and it’s extremely important that we are united in condemning these actions and to looking for ways to impose accountability.  Because it is only if we have robust accountability that the deterrence impact will be at its greatest so other world leaders will think twice before they will launch a war of aggression in a way that President Putin has done so.

MODERATOR:  That brings us to the end of our time.  Thank you for your questions and thanks to our guest, Ambassador-at-Large Van Schaack, for joining us.  We will provide a transcript of this briefing to –

AMBASSADOR VAN SCHAACK:  Thank you, everyone.

MODERATOR:  Thanks.  We will provide a transcript of this briefing to participating journalists as soon as it is available, and we’d also love to hear your feedback.  You can contact us anytime at AsiaPacMedia@state.gov.  Thanks again for your participation, and we hope you can join us for another briefing soon.  Take care.

*Conference