Ambassador Van Schaack’s Remarks to the American Society of International Law Justice Panel

It’s great to be here. It’s lovely to see so many old friends and to be back at ASIL in-person to have these important conversations. Indeed, I’ve been in this job a little over a year now. I was confirmed just after Russia launched its full-scale invasion of Ukraine. This was an enormous job on February 23, 2022, and it became—frankly—a crushing job on February 24, 2022. The number of lines of effort that we have undergoing with respect to Russia’s manifest violation of the UN Charter is remarkable, all while staying focused on other parts of the world that demand justice.

The U.S. response to Russia’s full-scale invasion of Ukraine is truly a whole-government approach, with three main pillars. The first, of course, is strengthening Ukraine’s hand on the battlefield. Number two is dealing with the terrible humanitarian crisis that has been caused by this war. Obviously, the epicenter of suffering is in Ukraine, but we know that there are broad reverberations globally in the form of food insecurity, disrupted supply chains, and energy conflicts around the world.

Number three is justice and accountability, which is where I come in.

As my colleague David so aptly outlined, there are multiple justice initiatives underway, including everything from ensuring solid documentation, collecting and processing open-source information, and—at times—revealing this information publicly in ways that can help policymakers make accurate decisions but also to bring attention to the crimes against humanity and war crimes that are being committed literally on a daily basis in every region in which Russia’s troops are deployed.

We are also making sure that information is made available to a range of accountability mechanisms around the world. We are helping to stand up new documentation institutions, like the Ukraine Commission of Inquiry launched by the Human Rights Council, the Moscow Mechanism invoked by the Organization for Security and Cooperation in Europe, and the new International Center for the Prosecution of the Crime of Aggression (ICPA) to be generously hosted by The Hague as the world’s capital of international justice.

Regarding the importance of the political context, we have tried to act multilaterally with respect to each one of these pillars to build international coalitions in support of these imperatives. We do this through existing multilateral organizations—like the United Nations, the G7, the Human Rights Council—and also new configurations that have been inspired by this unprecedented situation of a full-scale war of aggression being committed through the commission of grave international crimes. For example, a “core group” of states is thinking about how to structure a tribunal to prosecute the crime of aggression in Ukraine; the Group of Friends of Accountability is thinking about how to utilize existing pathways more effectively; and a “dialogue group” that the Dutch have helped to stand will support the work of the International Criminal Court and other accountability mechanisms.

So, these are all ways in which we can strengthen and advance international law but doing so in partnership with other peace-loving and justice-loving states. Indeed, the international community has activated an unprecedented number of accountability mechanisms in response to Russia’s full-scale invasion. In response to the macro question of this panel, I will say that international law is alive and well, even if it might not be able to deter a malign actor like President Putin.

There are three pathways to justice now being pursued. The first is the International Criminal Court, which received an unprecedented referral by 43 states. The ICC Prosecutor has made his first move by successfully petitioning a Pre-Trial Chamber for an arrest warrant against the sitting head of state of a permanent member of the Security Council and one of his deputies, Maria Lvova-Belova, who is responsible for “children’s rights”—a remarkable irony when you consider the thousands of children who have been forcibly deported or trapped in Russia as part of the filtration operations being undertaken by Russia on a daily basis.

The second major pathway to justice is the domestic courts in Ukraine. They are open and operating. David has outlined a number of different ways in which we are trying to support that work. We have formed the Atrocity Crimes Advisory Group (ACA) with the European Union and the United Kingdom. We will soon be welcoming additional states that want to support this work and coordinatie our implementing partners. We want to ensure that we are bringing the best advice and assistance to the Prosecutor General, Ukrainian judges, the National Police, and other juridical actors that are on the ground now. These actors occasionally must duck into a bomb shelter when their city is under attack, but they are still out there doing investigations of international crimes.

The piece that my office has taken on is to deploy veterans from the world’s war crimes tribunals to Ukraine to work side-by-side with their counterparts on their cases. These experts are helping to prioritize the now 80,000 plus incidents that have been recorded by the Prosecutor General, think about how to undertake trauma-informed and victim-centered investigations and prosecutions, and how to prosecute international crimes that are not prosecuted on a daily basis. For example, imagine the prosecutor who worked on the siege of Sarajevo now helping to investigate and charge under the Ukrainian legal framework the siege of Mariupol. This is complementarity in action, and we are doing this, again, in partnership, with other states.

The third pathway to justice that is currently active is potential universal jurisdiction or extraterritorial cases. We have seen, particularly in Europe, the collective mobilization of prosecutorial and investigative authorities working to share information, create a joint investigative team (JIT) operating under the Eurojust umbrella, comparing strategies, and tracking potential defendants, particularly when they start to travel, as we know they will. Perpetrators have done this in every past conflict, and they will do so again in this conflict for various and sundry reasons. They will eventually come into the jurisdictional reach of third states and those states are now ready because they have been opening structural investigations so that they can move quickly once an individual is within their jurisdictional reach. The United States is supporting these potential cases by way of memoranda of understandings with different states and also with the JIT itself.

So those are the three pathways that are currently active. In terms of the justice imperative, we have a fourth that is still on the drafting table: an aggression tribunal.

This is a proposal that the Ukrainians have been advancing from the beginning. They see the crime of aggression as the “original sin” that unleashed all the harm and the horror that they have experienced for more than a year. They want to see that crime punished. There are compelling reasons why it should be punished in parallel with the Rome Statute “atrocity crimes” that are being pursued at the ICC and in domestic courts around the world. There are a number of different proposals and models that are being considered and, wearing my academic hat, it’s a fascinating exercise in institutional design. How do we draw from the best lessons in past exercises to build a tribunal that will be efficient and that will not be so expensive that it crushes the budgets of states, which are already overstretched in responding to this crisis and other global crises around the world.

The fourth pathway also raises additional questions. How do we find ways to mix international and domestic law? How do we ensure that fair trial and due process rights are accorded? How do we build something with international support?

A number of different models have emerged. Some involve states banding together under a sort of treaty arrangement; some involve a treaty between Ukraine and the United Nations to stand up some sort of internationalized or hybrid tribunal; and are rooted in the Ukrainian legal framework but with international elements enabled by local law. The United States, as many of you may have heard, has come out in favor of the third option. We looked carefully at all the different models with an eye toward identifying the model that will maximize the chances of genuine accountability for the crime of aggression—a crime that hasn’t been prosecuted since World War II. It’s critical that we get this right, and this is the model that can garner the most diverse and expansive international support.

In closing, I want to return to one of the themes that the Vice Mayor brought up in her remarks. We have to be acutely aware of perceptions around the world that there is disproportionate attention to this particular conflict in Europe. When I travel, I hear a high degree of empathy for what is happening in Ukraine—there is clear outrage toward Russia’s conduct—but I also hear that lingering question of “where were you when we were experiencing these kinds of horrors?”

Because we haven’t seen the same degree of mobilization with respect to other crises elsewhere, we have to be very attuned to these articulated concerns about selective justice. And so, in my work, I’m desperately trying to ensure that Ukraine does consume all the oxygen that’s available to my little office of 20 people in the Office of Global Justice, in the wider State Department, in the U.S. government, or within the international realm.

As such, I have been traveling around the world to other places that are experimenting with similar models of justice. The Central African Republic has launched an incredible new hybrid court—the Special Criminal Court—that is doing amazing work and hitting important benchmarks with virtually no international attention and very little international support. In The Gambia, there is in active conversation with ECOWAS about creating a sub-regional hybrid court to deal with the crimes that were committed under the Jammeh regime. In Ethiopia, policymakers and civil society are starting a conversation about transitional justice for the war in Tigray. We are also following other conflicts and transitional justice efforts around the world.

Susana mentioned, of course, the Rohingya. I was in Cox’s Bazar recently and it was inspiring to speak with many women survivors who asked me incredibly pointed questions about what was happening at the ICC. They asked about the Argentinian universal jurisdiction case and when will they hear testimony from survivors. I was able to catch them up on developments in international criminal law. These are refugees who live in the most abject conditions in the largest refugee camp in the world, and yet they asked me incredibly sophisticated questions about the prospects for justice, because it is one of the few areas that are bringing those people hope.

Finally, Susana and I will be down in Colombia soon. This is a good news story about the creation of a sophisticated, multifaceted transitional justice response to 50 years of conflict. Justice actors are working to integrate marginalized communities—women, indigenous persons, and Afro-Colombians—to ensure that they have a say in the next phase of that country.

And so, in closing, I do think international law is alive and well, and it’s desperately needed. I would encourage all of you, and especially the students in the room, to find a way to plug into the system of justice and accountability for this all-hands-on-deck moment.

Thank you.