December 6, 2022

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Briefing With Ambassador-at-Large for Global Criminal Justice Beth Van Schaack On Justice and Accountability for Russia’s Atrocities in Ukraine – United States Department of State

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Beth Van Schaack, Ambassador-at-Large for Global Criminal JusticeOffice of Global Criminal Justice

Washington, D.C.

Via Teleconference

MR TEK: Good morning, everybody.  Welcome to today’s call.  Our call this morning is on the record and embargoed until its conclusion.  We are joined, of course, today by Ambassador-at-Large for Global Criminal Justice Beth Van Schaack.  And we’re looking forward to taking a few of your questions, but first I’d like to turn it over to the ambassador to begin with some opening remarks.  Ambassador, please go ahead.

AMBASSADOR VAN SCHAACK:  Great.  Thank you so much and good morning, everyone.  I really look forward to this conversation.  Just by way of background, my job and the mission of my office, which is the Office of Global Criminal Justice, is essentially to advise the U.S. Government, including the interagency, et cetera, other agencies around the government, and also to engage in international diplomacy and programming to help prevent, mitigate, and redress atrocities through various justice and accountability measures.

So Ukraine is a big piece of my work, but I’m also engaged in a number of places around the world where we’ve seen atrocities happening as well, including, for example, Myanmar, in Central Africa, Venezuela, et cetera.  But turning to Ukraine, we are nine months into what has become a full-scale invasion of Ukraine, and President Putin’s war against Ukraine continues to result in devastating human costs – thousands of civilians killed or wounded; at least 13 million Ukrainian citizens forced to flee their homes; historic cities have been literally pounded to rubble.

The aggression against Ukraine is a manifest violation of the UN Charter, and we have mounting evidence that this aggression has been accompanied by systemic war crimes committed in every region where Russia’s forces have been deployed.  This includes deliberate, indiscriminate, and disproportionate attacks against the civilian population and elements of the civilian infrastructure.  We’re seeing custodial abuses of civilians and POWs and also efforts to cover up these crimes.

We have reports of citizens being killed execution-style, with their hands bound.  We have bodies that show signs of torture.  We have horrific accounts of gender-based violence, including sexual violence against women and children.  Ukraine’s Office of the Prosecutor General has already identified thousands of incidents that may constitute war crimes.  And all of this is without yet knowing what is unfolding in areas that are still under Russia’s occupation or control.  And so we expect that additional evidence will continue to mount as these areas are liberated.

I want to also call attention to the fact that Russia’s breaches of international law include the construction of a vast transnational infrastructure of filtration operations to which thousands of Ukrainian citizens have now been subjected.  There are compelling reports describing physical and psychological abuse, including summary executions, as part of these operations, and the forcible transfer and deportation, including thousands of Ukrainian children, who have been abducted and forcibly adopted by families within Russia.

What we’re seeing in these images, videos, and reports, including witness accounts, suggest that these atrocities are not the acts of rogue units or individuals.  Rather, they are part of a deeply disturbing pattern of reports of abuse across all areas where we’re seeing Russia’s forces engage.  And they’re also consistent with what we’ve seen from Russia’s military engagements preceding the Kremlin’s full-scale war in Ukraine.  This includes in Chechnya, Syria, and Georgia.

And while the epicenter of suffering is Ukraine, Russia’s aggressive war has generated vast reverberations across the globe in the form of intense food insecurity, raised prices, disrupted supply chains, and an emergent energy war.

Russia’s reinvasion of Ukraine and the damage it has wrought has inspired an unprecedented array of accountability initiatives.  United States is supporting all existing international efforts to investigate and examine atrocities in Ukraine, and this includes ongoing investigations by the International Criminal Court, given that Ukraine has consented to its jurisdiction.  There’s a UN Commission of Inquiry also focused on Ukraine as a human rights monitoring mission.  And the Europeans have formed a joint investigative team through the Eurojust network, which recently drafted and amended its regulations to enable it to serve as an evidence repository for the commission of international crimes.

The prosecutor of the ICC, Karim Khan, was just in Washington last week briefing policymakers and having meetings on the Hill.  And he also hosted a bipartisan congressional delegation in the Hague where he’s able to discuss his priorities and approach to the Ukraine matter and to other situations under his jurisdiction.

These efforts all reveal that the war crimes units within Europe are – and elsewhere are increasingly interoperable.  These entities and prosecutors are sharing information and strategies.  They’re sharing personnel.  And they’re all engaged in efforts to advance the cause of justice under all available jurisdictional bases.

I should note that my office has expanded a pre-existing partnership with the Office of the Prosecutor General.  We had set up a project after the first invasion in 2014 to advise the Office of the Prosecutor General on bringing war crimes cases.  This involves surging experts that are drawn from the world’s war crimes tribunals to Ukraine to advise their counterparts on how to bring cases.  So, for example, a prosecutor who may have worked on the siege of Sarajevo with the International Criminal Tribunal for the former Yugoslavia is now sitting side by side with colleagues in Ukraine who are going to be prosecuting the siege of Mariupol.

After February 24th, we’ve now worked to scale this project.  We’ve been joined by the European Union and the United Kingdom, have formed what we’re calling the Atrocity Crimes Advisory Group.  This is now a multilateral effort with multiple implementing partners, all aimed at increasing and enhancing the capacity of Ukrainian prosecutors and investigators to bring these cases in Ukrainian courts.  The prosecutor general is working in partnership with the ICC prosecutor and with prosecutors in Europe to share information and approaches and to coordinate the prosecution of war crimes cases and bringing potentially other charges.

I want to make sure to emphasize that while we’re very focused on the situation in Ukraine, we’re also staying focused on other situations that cry out for justice, including in some of the situations I mentioned in Myanmar and elsewhere.  It’s extremely important that the international community stay focused on those situations as well so as to avoid any appearance of selective justice.

So with that, I’m happy to close and hear questions from the group.

MR TEK:  Thanks so much.  Hey, Operator, would you mind just repeating the instructions for joining the question queue?

OPERATOR:  Certainly.  To queue up for a question, press 1 then 0, please.  You will hear a tone indicating you’ve been added to the queue, and repeating the 1, 0 command will remove you from the queue.

MR TEK:  Great, thanks so much.  We’re going to work on some just technical issues back here while we try to sort out the queue, so please just stand by for a little bit.

QUESTION:  I can’t get in either.  I’ve been trying to, like, reset, but it won’t —

MR TEK:  Hi.  We can hear you, and I – we’ve got the – sorry, folks, apologize.  I’ve got the questioners and the queue back online.  Apologize to everyone.

Great.  Operator, can we please go to the line of Jennifer Hansler from CNN?  Thanks so much.

QUESTION:  Hi, can you hear me?

OPERATOR:  Your line is open.  Go ahead.

QUESTION:  Hi.  Thank you for doing this call.  A couple questions, Ambassador.  Has the U.S. determined whether Vladimir Putin himself is culpable for these war crimes?

Have you found evidence of crimes against U.S. citizens that could be prosecuted in the U.S., given there have been a number of Americans killed in this conflict?

And then there was a video over the weekend that appeared to show Ukrainian soldiers executing Russian ones.  Does the U.S. believe this should be investigated and would this constitute a war crime?  Thank you.

AMBASSADOR VAN SCHAACK:  Yeah, thanks so much for those questions.  I’ll take them in order.  So there are doctrines under international law that allow for prosecutions to go all the way up the chain of command.  Pursuant to this doctrine of superior responsibility, superiors can be held liable for the acts of their subordinates if the superior knew or should have known that their subordinates were committing abuses and the superior failed to take the necessary measures to either prevent them in advance or to appropriately investigate them and prosecute them after the fact.  And so that doctrine exists and can be utilized by national courts and the International Criminal Court, as necessary.  So prosecutors will follow the evidence where it leads, but when we’re seeing such systemic acts, including the creation of a vast filtration network, it’s very hard to imagine how these crimes could be committed without responsibility going all the way up the chain of command.

When it comes to U.S. citizens, I was fortunate enough to visit Ukraine on the border with Attorney General Merrick Garland, and he was able to announce the creation of a war crimes accountability team within his Human Rights and Special Prosecutions unit.  This is the unit that’s dedicated to prosecuting international crimes under the federal penal code, which allows for prosecutions for war crimes, crimes against humanity – sorry, war crimes, crimes of torture, genocide, use of child soldiers, trafficking, terrorism, et cetera.

Our war crimes statute is somewhat limited in how it’s been formulated, and there are some efforts now afoot on the Hill, I understand, to expand this statute so that it can be more actively utilized or activated in this context.  As it currently stands, the war crimes statute can only be used if either the perpetrator or the victim is a U.S. person.  So, as you mentioned, there have been U.S. citizens who have been killed in Ukraine, and I know that those are being considered by the Department of Justice.  I would direct you to them for more specifics, but that would be a situation where we could utilize our war crimes statute.

We can’t in the event that we have a war crime committed by, for example, a Russian soldier against Ukrainian citizens.  If that Russian soldier were here in the United States, we would not be able to activate our War Crimes Act against that individual, so there’s a rather narrow jurisdiction.  We do not have either a statute on crimes against humanity, and so to the extent that some of these atrocities might be characterized as crimes against humanity because they’re a widespread or a systematic attack against a civilian population, we’re unable to prosecute that in our domestic courts.

Now, the Ukrainians can’t, either.  A number of European states can, including our NATO Allies, and the International Criminal Court can.  So you can imagine a division of labor where different individuals might be prosecuted before different institutions depending on what charges are appropriate and the operative legal framework.

And then finally, you asked about the videos that emerged this weekend, and we are obviously tracking that quite closely.  It’s really important to emphasize that the laws of war apply to all parties equally, both the aggressor state and the defender state, and this is in equal measure.  But when it comes to the war in Ukraine, that’s really where the equivalency ends.  When we’re looking at the sheer scale of criminality exhibited by Russian forces, it’s enormous compared to the allegations that we have seen against Ukrainian forces.  And likewise we’re seeing a really vast difference when it comes to the reaction to such allegations.  Russia inevitably responds with propaganda, denial, mis- and disinformation, whereas the Ukrainian authorities have generally acknowledged abuses and have denounced them and have pledged to investigate them.

And so we would urge Ukraine to continue to abide by international obligations in this conflict, and to – and we continue to reiterate the importance that all parties to the conflict must abide by international law or face the consequences.

MR TEK:  Great, thank you so much.  Could we please go to the line of Matt Lee from the Associated Press?

QUESTION:  Hi.  Am I on?  Can you hear me?

MR TEK:  Yes, we can hear you.

AMBASSADOR VAN SCHAACK:  I can.

QUESTION:  Yeah, okay.  Hi, Ambassador.  Thank you.  Jenny asked my kind of – my second question.  But yesterday – it surely can’t have passed without notice that yesterday was the anniversary of the opening of the Nuremberg trials, which had Soviet – a chief judge, or at least judges from the Soviet Union.  And they were able to secure convictions for war crimes and other atrocities.  That’s not going to be the case here, I think you would have to admit.  So what do you think are the – what do you think are the actual chances of anyone actually facing any kind of accountability for the atrocities that you say, that many say are alleged to have happened?  Simply because the world is so divided now, it’s not the same as it was.

And then on the second – on her second question, which was about the videos, are they problematic, or are you just holding your fire waiting to see what happens with the investigation?  Thank you.

AMBASSADOR VAN SCHAACK:  Yeah, thanks so much, Matt.  Indeed, this is definitely a new Nuremberg moment.  Just as the Allies at the end of the Second World War banded together to advance the imperative of justice and usher in a new era of accountability for what then was the worst imaginable crime, it now falls to all of us to ensure that those responsible for the war crimes and other atrocities that we’re seeing in Ukraine are held to account.  And you’re absolutely right that the Soviets, the then-Soviets played a really important role at Nuremberg in terms of convening and conceptualizing the Nuremberg tribunal, in seconding staff, judges, prosecutors, et cetera to those proceedings.  And with the current war and with Russia’s behavior in previous wars, they’ve really turned their back on that legacy.

There – there’s no question that the issue of custody over the accused is going to be a real challenge to accountability, even in all of the three pathways that I’ve identified – in Ukrainian courts, before the International Criminal Court, and then in the courts of third states that might be able to exercise jurisdiction on an extra-territorial basis.

But what we have seen in prior conflict is that perpetrators do inevitably travel.  They – particularly as time passes.  They want to visit family, they have other reasons to leave.  They may be defectors.  We’ve seen this in the Syrian context, where a number of cases have been able to proceed in European courts against individuals who were accused of crimes being committed in Syria, including relatively senior members of the Assad regime.  And so individuals like Slobodan Milošević or Augusto Pinochet I think never thought they would see in the inside of a courtroom, and they did.  And they just – it took time, but ultimately they did achieve accountability.

Now, that said, if Russian perpetrators remain in Russia and absent any kind of political transformation there, it will be difficult to move forward.  But there’s still a lot that can be done with these existing pathways, including documenting crimes, preserving the testimony of witnesses and survivors, creating a documentary record – the International Criminal Court, for example, can confirm indictments in absentia, and so even if they don’t have custody of an accused, they can put on a measure of evidence which can show the commission of international crimes – and arrest warrants can be issued, and then Red Notices from INTERPOL, which would make it very difficult for anyone to travel worldwide, because they would be subject to an international arrest warrant.

So there’s plenty of challenges; I don’t want to understate that.  But the world has never been more united than it is now around the imperative of ensuring accountability for this terrible breach of international norms that has been occasioned by Russia’s war of aggression.

MR TEK:  Thanks so much.  Could we go to the line of Oscar Gorzynski from the Polish Press Agency?

QUESTION:  Hello.  Can you hear me?

AMBASSADOR VAN SCHAACK:  Yes.

QUESTION:  Thank you for doing this.  So two questions.  On filtration, are there any credible – do you have any credible estimates as to the number of people that went through that process, and how many get essentially deported to Russia, how many met some worse fate than that?  And do you consider the strikes on civilian infrastructure in Ukraine as war crimes?  You had mentioned that in the beginning, but can you clarify if they are war crimes?  Thank you.

AMBASSADOR VAN SCHAACK:  Yes, great.  Thank you, Oskar.  I’ll start with your second question.  So each individual strike has to be evaluated as against whether there were military objectives in the vicinity or whether these were purely civilian objects.  And so it’s difficult to say on any particular incident, but what’s important to note is that there is a consistent pattern of attacks on civilian elements.  And it’s – if you look at a map of where the attacks are happening and where the known military objectives are, there’s not a – there’s a mismatch there where the attacks are happening very far often from military objectives.

And it also – you have this – the question of sort of what was the military advantage to be gained by Russia in attacking some of these elements of the civilian infrastructure which serve only to leave civilians without electricity, heat, or water, or targeting, for example, transportation – elements of the transportation network that are being used for individuals to flee the fighting.  What is the military advantage to be gained by targeting those particular elements?  And so each individual incident will have to be looked at very carefully by prosecutors, but the pattern is deeply troubling.

On the filtration operations, I don’t have the numbers.  It’s very hard to know.  The U.S. Government has funded a Conflict Observatory, which is an independent entity based at Yale University and with the involvement of other entities, that is aggregating open-source information drawn from satellite imagery, scrubbing of social media accounts, journalistic reporting, et cetera, to focus on various violations, including, for example, the – your second question, attacks on hospitals, educational institutions, and cultural property.  But they also have a report on the filtration operations.  The numbers are hard to come by because it’s a little bit of a black box when people are brought into Russia because, generally, individual civilians face one of three fates if they are put through one of these filtration operations.

First, they may be allowed to continue to live in Russian-controlled or occupied areas within Ukraine.  Second, they may be deported into Russia, and often to very far-flung parts of Russia.  And third, if they fail filtration, they may be subjected to detention – and this can include terrible conditions of life and extreme mistreatment, including potentially summary executions.  The Conflict Observatory has looked at satellite imagery that seems to show the creation of mass graves in the vicinity of one of the filtration sites.

So this is obviously extremely worrisome.  Again, even with the children, it’s difficult to know.  The Ukrainians are trying to gather this information from families who are able to identify that their children have gone missing because they’ve been abducted and potentially brought into Russia, but gathering the complete numbers is – has been a bit of a challenge.  And so we’re continuing to track that.

MR TEK:  Great, thank you so much.  Could we please go to the line of Nick Schifrin from PBS?

OPERATOR:  Go ahead, Mr. Schifrin.

QUESTION:  Hi, Beth.  Thanks so much for doing this.  Two questions that we’ve asked you them before but I still wanted to ask you again.  Ukraine consistently calls for an independent tribunal.  Is the U.S. ready at this point to support that call?  And have you determined or have you gone down or gotten anywhere closer to determining whether, as Ukraine alleges, Russia is committing genocide?  Thanks.

AMBASSADOR VAN SCHAACK:  Yeah, thank you, Nick.  On the aggression tribunal idea, there are a number of proposals that are floating around as to how this tribunal might be created.  One of them would be by way of a bilateral treaty between the United Nations and Ukraine that would be blessed by the General Assembly.  Of course, the Security Council is foreclosed in this regard because Russia will exercise its veto, which it is entitled to as a permanent member of the Security Council.  And so the Ukrainians are looking for other potential modalities, and one of these has been before the General Assembly.

The U.S. at the moment, we have been focused on supporting existing institutions that seem that they are already operational and seem most likely to be able to accord accountability here.  But we’re still reviewing the various proposals and talking with friends and allies to gather everyone’s perspectives on this.  There is some activity happening at the General Assembly, and so it’ll be interesting to see where that ends up going and where the United States ultimately lands.

When it comes to genocide, this is a crime, of course, defined by a multilateral treaty, the Genocide Convention, which all of the relevant states, including the United States, are members of.  Genocide is defined as the commission of a series of acts against a protected group with the intent to destroy that group in whole or in part.  And that’s often a very difficult element to prove, and so that’s where the charge of crimes against humanity can be quite helpful almost as a sort of a lesser included offense of the crime of genocide.  That will be ultimately for prosecutors to decide when they’re looking at individual defendants and suspects who might be in a position to act with genocidal intent or to unleash a policy of genocide within Ukraine.

It’s important to note that genocide can be committed a number of different ways.  We tend to equate it with mass killing, and that’s the kind of genocide we’ve seen in Rwanda, for example, or from the Holocaust, which first gave rise to the term and the concept.  But what – the Genocide Convention also is quite clear that there can be other acts that can be – that can constitute genocide, and that includes subjecting members of the protected group to conditions of life that are designed to destroy the group, serious bodily or mental harm, acts that would prevent the reproduction of the group, and then the transfer of children from one group to another.

And so any prosecutor is going to be looking at the high levels of violence, the gratuitous nature of the violence, the genocidal sort of rhetoric, the de-Ukrainization rhetoric that we’re hearing coming out of Russia, and also the attacks against children and the transfer of children.  All of this together, they will be deciding whether or not they can bring genocide charges here or whether other charges will meet the facts.

MR TEK:  Thank you so much.  Could we please go to the line of Yaroslav Dovgobol – I’m sorry if I’m butchering the pronunciation there – with UKRINFORM.

QUESTION:  Thank you so much.  Do you hear me?

AMBASSADOR VAN SCHAACK:   Yes.

QUESTION:  Thank you.  So I have a follow-up on the international tribunal issue.  Could you please give us more details?  What kind of interactions do you have with Ukrainians and other UN members on that issue in the United Nations, and what are your expectations on these prospects?  Thank you.

AMBASSADOR VAN SCHAACK:   Yes, thank you, Yaroslov.  There are a number of conversations happening, mostly in New York at this point but I think also in capitals across Europe.  What we’re seeing is that a number of the neighboring states and the Baltic states are quite supportive as well of this, and Ukraine is continuing to advocate for some kind of a reaction to the crime of aggression as its sort of original sin that unleashed all of the war crimes that we’ve seen flowing from that initial reinvasion back in February.  Some of the larger European states I think are more cautious and are continuing to examine various proposals and think through some of the legal and policy issues.  So those conversations I know are ongoing and eventually will, I’m sure, result in a particular path forward.

MR TEK:  Thanks so much.  We have unfortunately time for only one more question, and that will go to Missy Ryan from The Washington Post.  Thank you.

QUESTION:  Hi, Ambassador Van Schaack.  Thanks.  Thanks, Nathan.  Just wanted to – following up on some of the earlier questions, could you just give us an idea – given the fact that one of the complaints about attempts to bring different actors to justice for these crimes in international venues has been the pace, can you give us an idea of when we might start seeing conclusions of prosecutions everywhere from the Ukrainian level to European courts to the potential for the ICC or anything like that?  When should people think that it might be – we might be able to see the fruition of some of these efforts come to be visible?

AMBASSADOR VAN SCHAACK::   Yes, thanks – hey, Missy – thanks.  That’s a great question.  And indeed, in the early days in the mid-1990s during the renaissance of international criminal law, the pace of activity was quite slow and that was a criticism of the tribunals.  Now, to defend them – and I was a baby prosecutor at the time at the Yugoslavian and Rwanda tribunals; there was a joint prosecutorial office there – we were literally doing kind of blue-sky work.  We were dusting off these old Nuremburg records trying to figure out how to prosecute these crimes under modern international law, and so it took a minute to get to pull together a sort of theory of the case and the prosecutorial strategy.

Contemporary efforts have the benefit of all of that experience dating from the 1990s, and many of the same actors who held positions in the earlier war crimes tribunals are now back in their national system or they’re working at the International Criminal Court, and so they can bring all of that knowledge to bear on the contemporary proceedings.

But what we’re seeing so far is – I mean, if I were to take sort of a snapshot of the accountability landscape at the moment, we are seeing cases proceeding in Ukrainian courts and we know there have been a number of prosecutions there, including some convictions, including some convictions in absentia, which is a possible route under Ukrainian law.  We know that the ICC prosecutor has opened an investigation with the support of over 40 states which referred the matter to him, so he has a high degree of political support.  We know that he has announced that he is putting a lot of effort into this, and a number of European states have seconded personnel and provided him with additional resources to put towards this particular effort.

The Europeans have formed a joint investigative team, and at least 14 states – it may be more now – have opened focused investigations on the situation in Ukraine in order to prepare themselves for potentially issuing indictments against individuals who might come into their jurisdictional reach.  And that joint investigative team includes Ukraine, and then the International Criminal Court is also sort of an observer participant, and our Department of Justice is as well participating and supporting that effort.

And so with all of these various pathways to justice, it remains to be seen how quickly they can move, and a lot of it will again depend upon whether or not they’re able to have access to and gain custody over the accused.  But as I mentioned, there’s lots that can be done in advance in terms of preparing the groundwork, issuing indictments, arrest warrants, Interpol red notices, putting together a refined understanding of how the chain of command works, what the order of battle of has been, which units have been deployed there, who was at – headed each individual unit, working with defectors and prisoners of war who may be within Ukrainian custody and may be willing and interested in talking – because many of these prisoners of war are young conscripts who may have had no idea what they were getting themselves into and what they were being deployed to do, and may be willing to speak with prosecutors and investigators.

And so all of this work is happening apace as we speak, and so it’s really a question of when those indictments pop and then when cases are able to move forward with custody of the accused if that’s required under whatever the operative legal framework is.

MODERATOR:  Great.  That, unfortunately, brings us to the conclusion of today’s call.  As a reminder, today’s call was on the record, and the embargo is now lifted.  Thank you all so much for joining us, and thank you to our speaker, Ambassador Van Schaack, and have a great rest of your day.  Thanks, everyone.

AMBASSADOR VAN SCHAACK:  Thanks, everybody.

More from: Beth Van Schaack, Ambassador-at-Large for Global Criminal JusticeOffice of Global Criminal Justice

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