[Senate Hearing 118-70]
[From the U.S. Government Publishing Office]
S. Hrg. 118-70
ACCOUNTABILITY FOR RUSSIAN
ATROCITIES IN UKRAINE
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HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
MAY 31, 2023
__________
Printed for the use of the Committee on Foreign Relations
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
53-153 PDF WASHINGTON : 2023
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COMMITTEE ON FOREIGN RELATIONS
ROBERT MENENDEZ, New Jersey, Chairman
BENJAMIN L. CARDIN, Maryland JAMES E. RISCH, Idaho
JEANNE SHAHEEN, New Hampshire MARCO RUBIO, Florida
CHRISTOPHER A. COONS, Delaware MITT ROMNEY, Utah
CHRISTOPHER MURPHY, Connecticut PETE RICKETTS, Nebraska
TIM KAINE, Virginia RAND PAUL, Kentucky
JEFF MERKLEY, Oregon TODD YOUNG, Indiana
CORY A. BOOKER, New Jersey JOHN BARRASSO, Wyoming
BRIAN SCHATZ, Hawaii TED CRUZ, Texas
CHRIS VAN HOLLEN, Maryland BILL HAGERTY, Tennessee
TAMMY DUCKWORTH, Illinois TIM SCOTT, South Carolina
Damian Murphy, Staff Director
Christopher M. Socha, Republican Staff Director
John Dutton, Chief Clerk
(ii)
C O N T E N T S
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Page
Menendez, Hon. Robert, U.S. Senator From New Jersey.............. 1
Risch, Hon. James E., U.S. Senator From Idaho.................... 3
Van Schaack, Hon. Beth, Ambassador-at-Large for Global Criminal
Justice, U.S. Department of State, Washington, DC.............. 4
Prepared Statement........................................... 6
Additional Material Submitted for the Record
Responses of Ambassador Beth Van Schaack to Questions Submitted
by
Senator Benjamin L. Cardin..................................... 29
(iii)
ACCOUNTABILITY FOR RUSSIAN
ATROCITIES IN UKRAINE
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WEDNESDAY, MAY 31, 2023
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 2:17 p.m., in
room SD-419, Dirksen Senate Office Building, Hon. Robert
Menendez presiding.
Present: Senators Menendez [presiding], Cardin, Shaheen,
Coons, Murphy, Kaine, Booker, Van Hollen, Risch, Romney,
Ricketts, and Young.
OPENING STATEMENT OF HON. ROBERT MENENDEZ,
U.S. SENATOR FROM NEW JERSEY
The Chairman. The Senate Foreign Relations hearing will
come to order.
For well over a year now we have seen the horror of Putin's
illegal unprovoked invasion and the brutality he has inflicted
on the people of Ukraine. Russian airstrikes have destroyed
schools, flattened apartment buildings, killed mothers and
babies in maternity wards.
We have witnessed deliberate strikes on bomb shelters where
children and their caregivers have gone for protection, attacks
on civilian nuclear facilities, and a systematic targeting of
civilian infrastructure. It is a nightmare that does not let
up.
According to international human rights organizations,
Russian forces have occupied government buildings, village
schools, airport hangars, whatever they could find, and
converted them into makeshift torture chambers where they beat,
electrocute, and threaten to mutilate Ukrainian detainees.
They have kidnapped Ukrainian children, raped Ukrainian
women and girls, executed Ukrainian men, and starved innocent
Ukrainian civilians from Bucha to Kherson to Mariupol.
Make no mistake, these acts are war crimes and crimes
against humanity, mass atrocities that Putin and his underlings
must be held responsible for. Even as the war rages on in
Ukraine, we must do everything we can to gather and preserve
evidence on these atrocities to lay the groundwork for justice.
Ambassador Van Schaack, I want to hear from you about what
the U.S. Government is doing to support these efforts. I
commend the State Department for early on in the war calling
Russian atrocities what they are, war crimes, and the
Department's determination earlier this year that these crimes
amounted to a widespread and systematic attack against
Ukraine's civilian population--in other words, that they are
crimes against humanity--is laudable.
Now, Ambassador, I commend you personally for your tireless
effort and work shining a light on atrocities around the world
to combat impunity, not only for Russian crimes, but also war
crimes and crimes against humanity in countless other conflicts
from Burma, to Syria, to Ethiopia to North Korea, but it cannot
just be you and your colleagues at the Department of State and
Justice. Our entire government and the international community
must always follow up with actions.
Ukraine's Prosecutor General has chronicled more than
88,000--88,000--alleged war crimes and crimes against humanity
to date. Eighty-eight thousand, and that number continues to
grow.
Thanks to the testimony of brave Ukrainians who have
suffered unspeakable horrors and risked their lives so that we
can know the truth, the world and this body are rallying to
seek accountability because not taking concrete actions to
bring Putin and those responsible for these atrocities to
justice would set a dangerous precedent.
Last year on a bipartisan basis, Congress gave the
executive branch important new authorities to provide
information and other support to the International Criminal
Court's war crimes investigation, and I commend the ICC for
issuing arrest warrants for Putin and his so-called
commissioner for children's rights.
Here in the United States, while we may be saying the right
words and calling out these crimes, the Administration has not
used the tools we have provided to help hold Putin accountable.
It is simply inexcusable. It calls into question our
resolve and commitment to justice. There are real consequences
to this inaction and the rest of the world is taking note.
Now, I know there are many who support assisting the ICC,
including our witness today. The State Department has
encouraged working with the ICC to bring Putin to justice, but
it is no secret that the Department of Defense is the holdup.
I asked the Department of Defense to participate in today's
hearing so we could better understand why they are blocking
implementation of federal law.
Whatever they are thinking, a refusal to implement the law
is unacceptable in this situation, blocking critical U.S.
assistance for investigations into atrocities in Ukraine and is
dangerous to our system of government.
The Defense Department does not get to pick and choose
which laws it will obey. Let me repeat that. The Defense
Department does not get to pick and choose which laws it will
obey.
The United States needs to provide full support for
investigations that could lead to holding Russian officials
accountable.
As we continue to hear about Russian forces boiling
people's hands in water, systematically raping women while
threatening their children, killing innocent civilians in cold
blood, we cannot sit and do nothing.
Much of the world has come together in impressive unity in
response to this unjust war, but we must make sure our efforts
do not end with condemnation. We must seek and deliver
accountability.
Ambassador Van Schaack, I look forward to exploring with
you what more can be done to ensure that Putin and others are
brought to justice for their war crimes, crimes against
humanity, and aggression, including by supporting the ICC.
We must show that this is about more than words. There must
be and will be accountability for the crimes against the
Ukrainian people.
With that, let me turn to the distinguished ranking member,
Senator Risch, for his comments.
STATEMENT OF HON. JAMES E. RISCH,
U.S. SENATOR FROM IDAHO
Senator Risch. Thank you, Mr. Chairman.
To start with, let me say that for the record I am in
absolute full agreement with the remarks that the chairman made
in his opening statement on all the subjects that he covered.
I am glad we are discussing this important subject here
today. I wish we would have had time to--had a Ukrainian
witness here who could testify as to the horrors, although most
of it--that has all been publicized and I understand time is
always an issue and I am--like the chairman, I would like to
have had somebody here from the Defense Department to talk to
us about why they think they do not have to comply with the
laws that we pass.
That would make sense. We will--we are not done with that
yet. I am sure they know that.
The atrocities Putin has committed in Ukraine very quickly
rose to the level of genocide after Russia's full-scale
invasion of Ukraine, February 2022. In fact, this committee
passed my resolution last Congress labeling the despicable
crimes against Ukrainians as such.
Russian forces have deliberately targeted civilians and
civilian infrastructure in their campaign to erase Ukraine off
the map.
One of the most egregious and blatant crimes was the
Russian bombing of a maternity hospital in Mariupol last March.
Countless citizens--civilians have been killed in their own
beds.
The international community must remain steadfast in
documenting and prosecuting Putin's war crimes. The vast range
of these crimes requires a multi-pronged response with a
variety of jurisdictions to cover every aggressor from the
master planners to the foot soldiers.
I welcome the ICC's recent decision to issue arrest
warrants for Putin and the Russian commissioner for children's
rights for their despicable roles in the deportation of
hundreds of thousands of Ukrainians to Russia, in particular
children.
The filtration camps where Russia is detaining,
interrogating, and torturing Ukrainian citizens before
transferring them into Russia are particularly depraved as
Russians steal Ukrainian children away from their families by
the thousands.
Beyond the ICC's work, the Office of the Ukrainian
Prosecutor General has recorded over 85,000 potential war
crimes, as the chairman noted. It is important that Ukraine
exercise its jurisdiction over crimes it can prosecute
domestically.
I am proud that the United States has provided essential
assistance for the documentation of the war crimes and this
committee is going to see that that is enforced in our
oversight capacity.
We cannot allow Putin and his cronies to get away with the
vicious crimes they are committing. Impunity is not an option.
I look forward to hearing from you, Ambassador, on the
different avenues to pursue justice as well as what else the
United States can do to increase its support for accountability
for the Ukrainian people.
Thank you, Mr. Chair.
The Chairman. Thank you, Senator Risch.
As the Ambassador-at-Large for Global Criminal Justice,
Ambassador Van Schaack advises the Secretary of State and other
department leadership on issues related to the prevention of
and response to atrocity crimes including war crimes, crimes
against humanity, and genocide.
Ambassador Van Schaack is a world-renowned scholar on human
rights law, international justice issues with significant
experience in practice and academia.
She taught most recently at Stanford Law School where she
directed Stanford's international human rights conflict
resolution clinic.
We welcome you, Ambassador. Your full statement will be
included in the record without objection. I would ask you to
summarize it in about 5 minutes or so--obviously, you see there
is a fair amount of interest in the committee--so we can have a
conversation with you.
With that, you are recognized.
STATEMENT OF THE HONORABLE BETH VAN SCHAACK,
AMBASSADOR-AT-LARGE FOR GLOBAL CRIMINAL JUSTICE, U.S.
DEPARTMENT OF STATE, WASHINGTON, DC
Ambassador Van Schaack. Wonderful. Good afternoon.
Mr. Chairman, Ranking Member Risch, and distinguished
members of this committee, thank you so much for the
opportunity to address you today. It is really an honor and a
privilege to appear before you as the sixth U.S. Ambassador-at-
Large for Global Criminal Justice.
Senators, as President Zelensky so aptly noted earlier this
month, there can be no peace without justice in Ukraine. This
is justice for the millions of people whose lives have been
disrupted and destroyed as a result of this senseless,
unlawful, unprovoked terrible war of territorial conquest
launched by President Putin.
My office, in collaboration with other offices within the
U.S. Government and many international partners, sovereign and
civil society, is working to strengthen five pathways to
justice, to uphold the international norms that we all hold
dear, and to ensure that those most responsible for these
abuses are held to account. We welcome your support in each.
The first pathway involves international courts and
institutions. Our efforts here include working to establish and
then to renew the mandate of the United Nations Commission of
Inquiry devoted to Ukraine, multiple invocations of the Moscow
Mechanism of the Organization for Security and Cooperation in
Europe.
We have also sought to intervene in Ukraine's case before--
against Russia under the Genocide Convention before the
International Court of Justice.
Then, finally, as mentioned, the prosecutor of the
International Criminal Court has made his first move, has
opened an investigation into the matter in Ukraine and has
successfully achieved two arrest warrants.
We are grateful for the bipartisan legislation that
Congress has enacted in support of the ICC's investigation in
Ukraine, which may be the most consequential war crimes
investigation in human history since Nuremberg.
The second pathway to justice aims to strengthen and
increase the capacity of Ukrainian institutions to document,
investigate, and prosecute crimes in Ukrainian courts. This is
the frontline of justice.
The Ukrainian Office of the Prosecutor General as mentioned
has now recorded almost 90,000 potentially prosecutable crimes.
Through the Atrocity Crimes Advisory Group funded by my office
with the European Union and the United Kingdom, we are
providing expert assistance and advice, capacity building,
expert training on the whole range of prosecutorial and
investigative needs of the Prosecutor General, working with
them in Kyiv and in the field to strengthen their ability to
prosecute these cases and to sift through these 90,000
potential prosecutable crimes.
This includes very focused attention to the scourge of
conflagrated sexual violence that we know is rampant in
Ukraine, as documented by the United Nations and other
reputable bodies.
The third pathway to justice is supporting strategic
litigation that may happen in third states. In Europe, we have
witnessed the mass mobilization of prosecutorial and
investigative authorities operating under the Eurojust umbrella
to coordinate strategies, track potential defendants, and share
information and evidence.
The United States is participating in these efforts through
memoranda of understanding with individual states through
engagement with the joint investigative team formed by a number
of European states and also by working with civil society
organizations, anti-impunity organizations that are providing
potential evidence, witnesses, et cetera, to national
prosecutorial authorities.
Prosecutions for the crime of aggression offer a fourth
pathway to justice. Permitting impunity for Russia's illegal
war of aggression will embolden other actors who will engage in
similar blatant violations of state sovereignty, territorial
integrity, and political independence.
For this reason, we are supporting the establishment of a
special tribunal dedicated to the prosecution of the crime of
aggression to those most responsible, one that is rooted in
Ukraine's domestic system, but that is enhanced by multiple
international elements in the form of personnel, expertise,
structure, support, information sharing, financing.
The final pathway to justice leads here to the United
States. This involves continuing to strengthen U.S. law and
ensuring that the United States does not become a safe haven
for those who commit international crimes such as those
committed in Ukraine, but also elsewhere.
Congress has taken a monumental step in this direction by
passing the Justice for War Crimes Act to enhance the federal
war crimes statute, but there is more that can be done to
provide U.S. prosecutors with the tools they need to prosecute
international crimes.
As Deputy Attorney General Lisa Monaco said recently before
the Senate Judiciary Committee, the United States lacks a
crimes against humanity statute.
Crimes against humanity encompass a range of abuses
including murder, torture, rape, when they are committed in the
context of a widespread or systematic attack against a civilian
population and pursuant to a policy of either a state or an
organization to commit that attack.
They can be committed during armed conflict, but also in
times of peace and so they can be quite useful in other
situations such as in Xinjiang where the PRC has subjected the
Uyghurs to a continuous campaign of genocide and crimes against
humanity.
Passing crimes against humanity legislation will better
align U.S. law with all of our friends and allies and also
empower U.S. prosecutors and investigators to prosecute the
whole range of international crimes.
Senators, there can be no secure or lasting peace without
justice. Holding Russia to account for its war crimes, crimes
against humanity, and other atrocities within Ukraine and
against the Ukrainian people is foundational to the defense of
U.S. values and also the maintenance of a peaceful, just, and
secure world.
We welcome the support of Congress to achieve these goals,
to advance these five pathways to justice, and to position the
United States as a leader in international justice.
With that, I thank you and I welcome your questions.
[The prepared statement of Ambassador Van Schaack follows:]
Prepared Statement of Ambassador Beth Van Schaack
Mr. Chairman, Ranking Member Risch, and distinguished members of
the Committee, thank you for the opportunity to appear before you
today. It is an honor and privilege to address you as the sixth U.S.
Ambassador-at-Large for Global Criminal Justice.
Senators, as President Zelenskyy so aptly noted earlier this month,
there can be no peace without justice in Ukraine. Justice for the
millions who have had their lives disrupted and destroyed as a result
of the senseless, unprovoked, and illegal war of territorial conquest
launched by Vladimir Putin.
My office, in collaboration with other parts of the U.S. Government
and many international partners, is proceeding along five pathways to
justice to uphold the international norms we all hold dear and to
ensure those responsible for the abuses we see in Ukraine are held to
account. We welcome your support for each.
The first pathway involves international courts and institutions.
Our efforts here include working toward the establishment and renewal
of the UN Independent International Commission of Inquiry on Ukraine
and three invocations of the Moscow Mechanism of the Organization for
Security and Co-operation in Europe. The United States has also sought
to intervene in support of Ukraine's case before the International
Court of Justice against Russia under the Convention on the Prevention
and Punishment of the Crime of Genocide. Finally, the Prosecutor of the
International Criminal Court has opened an investigation into the
Situation in Ukraine, which received an unprecedented number of state
referrals. Since then, two arrest warrants have now been issued for the
transfer and deportation of Ukrainian children into Russia. We are
grateful for the bipartisan legislation Congress has enacted to support
the ICC's investigation in Ukraine.
The second pathway aims to increase the capacity of Ukrainian
institutions to document, investigate, and prosecute war crimes in
Ukrainian courts. The Ukrainian Office of the Prosecutor General has
now recorded more than 80,000 incidents that may constitute
prosecutable crimes. Through the Atrocity Crimes Advisory Group,
alongside the UK and the EU, we are providing expert technical
assistance, capacity building, and comprehensive training in
international criminal law and practice to assist Ukrainian
investigators and prosecutors in Kyiv and out in the field. This
includes attention to the scourge of conflict-related sexual violence
that has been widely documented by the UN and other bodies.
The third pathway is aimed at supporting strategic litigation in
other courts around the world. In Europe, we have witnessed the mass
mobilization of prosecutorial and investigative authorities operating
under the Eurojust umbrella to coordinate strategies, track potential
defendants, and share information and evidence. The United States
supports these efforts through memoranda of understanding with
different states, through engagement with the Joint Investigative Team
that was set up through Eurojust, and by working with civil society
organizations that are providing potential evidence to national
authorities.
Prosecutions for the crime of aggression offer a fourth pathway to
justice. Permitting impunity for Russia's illegal war of aggression
will embolden other actors to engage in similar blatant violations of
state sovereignty, territorial integrity, and political independence.
We are thus supporting the establishment of a special tribunal
dedicated to prosecuting those most responsible for the crime of
aggression: one that is rooted in Ukraine's judicial system but
enhanced with international elements in the form of personnel and
expertise, structure, and support (including in terms of funding and
cooperation).
The final pathway leads here to the United States. This involves
strengthening U.S. law and ensuring that the United States does not
offer a safe haven to those who commit international crimes, such as
those being committed daily in Ukraine. Congress took a monumental step
in this direction by passing The Justice for Victims of War Crimes Act
to enhance the federal war crimes statute. There is more that can be
done to provide U.S. prosecutors with the tools they need to prosecute
international crimes. As Deputy Attorney General Lisa Monaco recently
testified before the Senate Judiciary Committee, the United States
lacks a statute criminalizing crimes against humanity.
Crimes against humanity encompass certain abuses--including murder,
torture, and rape--committed as part of a widespread or systematic
attack directed against any civilian population and pursuant to or in
furtherance of a state or organizational policy to commit such an
attack. They can be committed during an armed conflict but can also
take place in times of peace, such as the ongoing crimes against
humanity and genocide that PRC authorities have continued to inflict on
Uyghurs and members of other ethnic and religious groups in Xinjiang.
Passing crimes against humanity legislation will better align U.S. law
with that of our friends and allies and empower U.S. prosecutors and
investigators to prosecute the whole range of international crimes.
Senators: there can be no secure or lasting peace without justice.
Holding Russia to account for its war crimes and other atrocities
within Ukraine and against its people is foundational to the defense of
U.S. values and the maintenance of a peaceful, just, and secure world.
We welcome support from Congress to achieve these goals, advance each
of these pathways to justice, and position the United States as a
leader in international justice. Thank you and I welcome your
questions.
The Chairman. Thank you, Ambassador. We will start a round
of 5 minutes.
Last year I was at the International Criminal Court at the
Hague. I spoke with the Prosecutor General of the Hague. We had
a good conversation.
I understand that the Department of Defense has expressed
concerns that assisting the ICC's investigation could open the
door to prosecutions of U.S. service members, something that
has largely been dismissed by legal experts.
I raised this issue with the Prosecutor General. It was not
his intention by any stretch of the imagination to do that. If
anything, he actively solicited the support of the United
States, particularly in information to substantiate the cases.
Do you share the concerns that has been raised by the
Department of Defense?
Ambassador Van Schaack. I will say at the outset that in my
role as the lead diplomat in the international justice space I
would work tirelessly to ensure that no U.S. personnel would be
brought before the ICC if that were ever to come to pass again.
I do not think that that is an acute risk at this time. The
prosecutor has already announced that he has deprioritized any
investigation into international forces in Afghanistan and is
instead turning his attention as is appropriate to ongoing
crimes against humanity being committed by the Taliban, by
ISIS-K, and by other nonstate actors in Afghanistan.
In addition, we know that the court operates under a
principle of complementarity so that if the national system
steps up, the court will step back.
That is what the prosecutor has said, and we have a robust
system of military justice and we now have the new War Crimes
Act, and so we are in a very good position to take care of any
matters that might emerge in the future in some future
hypothetical situation.
I do not think the argument that by assisting in this
matter, which involves the nationals of a nonstate party, we
are at all undermining our ability to robustly protect against
any charges that might be brought or any interest in U.S.
personnel in the future.
The Chairman. I appreciate that analysis because my own
discussion with him in front of other members--our members--he
said exactly the same thing. I do not understand why the
Department of Defense is not providing critical information so
that we can ultimately get accountability here.
Why does the State Department support providing information
and other assistance to the ICC's Ukraine investigation? What
do we have to contribute to the cause? You mentioned some of it
in your opening statement. How critical is our assistance
versus other sources?
Ambassador Van Schaack. It is extremely hard to imagine the
United States standing on the sidelines in this investigation,
given all that we have done, the investment that we have made
in Ukraine, the investment that we have made in pursuing
justice in Ukraine.
We are uniquely positioned to assist with this
investigation, given the unique assets that we have, the
intelligence that we have, the brilliance of our diplomats and
our subject matter and regional experts within the State
Department and elsewhere.
There are many ways that we could be supporting this
investigation, including with respect to witness protection,
insider witnesses that may want to give testimony. All of that
are ways that we have in the past assisted with international
prosecutions before international and hybrid courts.
There are a range of ways that we could be of assistance
and none of that would, I think, jeopardize. In fact, I think
it strengthens our position vis-a-vis the court because it
shows us that engagement works.
It is important to maintain open lines of communication
with international organizations, not just the court, but other
international organizations that might make decisions that we
might disagree with.
It is important to engage in constructive helpful
assistance when we can because that shows that we are a good
faith trusted partner in this regard.
When we have issues with an international organization, we
know who to call. We have lines of communication open. We have
built a relationship of trust that we can then rely on and call
upon if we are ever again finding ourselves in a defensive
posture.
The Chairman. Senator Coons, who was with me on this trip
and who has been pursuing some legislation in this regard,
heard the same thing and one of the things that we heard is
that the ICC has never had the nature of the challenge of a
nation state as large as Russia as an adversary, in a sense, of
course, because Putin dictates what that nation state does.
For example, how does the ICC protect witnesses who speak
truth to power about Putin's atrocities, the reach of--we have
seen in the Skripal and other attacks of what Russia is capable
of doing, going far outside of its borders into other countries
to pursue people who speak out against the regime?
What more does the ICC need to do to protect witnesses and
victims to protect its own security and cybersecurity
infrastructure? This is unlike anything the ICC has ever
undertaken and so can you speak to that?
Ambassador Van Schaack. You are exactly right and I have
heard the same thing in my visits to the Hague and when the
registrar and other key principals of the ICC have come here to
the United States.
The court feels like it is under assault. This is an
adversary like they have never seen and it has the skills and
ability to infiltrate the institution in ways that previous
situation countries did not present.
You may have read recently there was an attempt to place an
intern that was masquerading as a Brazilian graduate student.
We are now prosecuting that individual for spying and other
measures here in the United States because they were living
undercover here.
These are the means that they are taking in order to try
and protect themselves against this particular investigation,
and given our tech sector, given our excellent cybersecurity
understanding and skills and personnel, we are again uniquely
positioned to be able to audit what sort of protections the
court has and to be able to make recommendations about how they
can strengthen their ability to protect evidence, but also to
protect those witnesses.
No matter how much open source evidence is out there and we
know it is--there is reams, terabytes, being generated--these
cases still always will rely upon individuals, as you say,
willing to speak truth to power, willing to step up and put
themselves and their families at risk because they can tell a
story.
They can bear witness to what they have experienced. We
need to keep those individuals safe or these cases will not be
able to proceed effectively.
The Chairman. We need to keep them alive.
Senator Risch.
Senator Risch. Thank you, Mr. Chairman.
Ambassador, I think it is pretty obvious to most people
that the issue we are talking about here is not a partisan
issue. Do you agree with me in that regard?
Ambassador Van Schaack. I do, and I really do appreciate
the bipartisan cooperation that we have seen here on the new
legislation and just in supporting my work and the work of my
office and this whole portfolio.
Senator Risch. I appreciate that. There are some loud
voices who dissent that--about our--any involvement in Ukraine
and they get a lot of ink, but my experience up here in
Congress is that that is a pretty thin, thin layer. Are you in
agreement with that with your dealings with Congress?
Ambassador Van Schaack. I do. I feel like I have had
nothing but support from many of the members and the staffers
that I have spoken with.
Senator Risch. All right. I appreciate that.
Interesting, the--both the chairman and I talked about it
in their opening statements, the fact that the--for whatever
reason the Department of Defense is pushing back on doing what
we, Congress, told them to do and as the chairman has
indicated, we are not going to tolerate an agency saying, well,
we do not like that law so we are not going to enforce it. We
will be doing something about that.
The other thing I would point out for the record here is
that I was intimately involved in drawing that legislation.
Obviously, when you are dealing with the ICC, you are always
cognizant of the fact that there could be pitfalls and that
there could be a problem putting U.S. servicemen in jeopardy.
We scrupulously avoided that and had specific language to
see that that did not happen. Yet, we wind up with the same
criticism after it has passed.
Again, I want to note for the record I was not contacted by
anybody from the Department of Defense as we drafted that
legislation.
We did not draft it under a bushel basket. It was out in
the open. We put out the text. Nobody came forward and said
this was a problem and now they are talking about it being a
problem.
I hope you will join us in pressing them to do what
certainly needs to be done here.
Ambassador Van Schaack. Yes. Thank you, Senator. I agree
that the legislation is very carefully crafted. It is surgical,
in fact, and all of the other protections of the American
Service Members Protection Act remain in place, in addition to
the more than 100 bilateral treaties that the State Department
negotiated with partners in which the various parties promised
not to refer their nationals to the court.
All of those protections remain in place. There are ways
that we can provide assistance without jeopardizing U.S.
personnel.
Senator Risch. Well, and that is exactly what it was
designed to do. It was to provide assistance without in any way
affecting the other strong provisions that have been in place
for many, many years and has worked--have worked very well.
Glad to hear you reiterate that and we will be reiterating it
with the Department of Defense soon.
Could you go into--with your background and experience and
legal training, could you talk about in detail how an
international tribunal for the crime of aggression could be
established to address Russia's actions in Ukraine? I am
talking about now something--I guess what I envision in that
regard is something separate from ICC.
Ambassador Van Schaack. Right.
Senator Risch. I would really appreciate hearing your
thoughts on this.
Ambassador Van Schaack. You are exactly right that the ICC
does not have jurisdiction over the crime of aggression in this
matter because Russia has not ratified the Rome Statute. That
has given rise to proposals to establish a dedicated special
tribunal in this regard.
The Ukrainians see the crime of aggression as the original
sin, essentially, that unleashed all of the other war crimes
and crimes----
Senator Risch. Rightfully so.
Ambassador Van Schaack. Rightfully so, and that is why we
are indeed supporting the creation of this. As we looked at the
different models and as I drew upon my own academic experience,
but my experience as a practitioner with international and
hybrid tribunals, I was guided by five main principles.
Number one, we want to maximize accountability for the
crime of aggression.
Number two, we want to create an institution that is nimble
and efficient in its ability to work.
Number three, we want to create an institution that is
legally sound within the U.N. Charter system and under the
extant international law.
Number four, we want to make sure that this is
complementary to other efforts that are out there, including
the ICC, but also the International Center for the Prosecution
of Aggression that has been stood up in the Hague.
Then, finally, we want to garner widespread, cross-
regional, international support for this effort. In looking at
all of those factors and at the various models we have landed
upon a proposal for an internationalized special chamber or
special tribunal that would be deeply rooted within the
Ukrainian national system, but would benefit from assistance
from a number of international sources. States, even private
sector could be assisting this endeavor.
This could take the form of secondments of personnel in the
way that the United States has always done with international
courts and courts around the world. It could take the form of
funding, information sharing, cooperation.
This entity could be based outside of Ukraine for security
reasons, but then moved back into Ukraine when the time was
ripe, and it has the added benefit of continuing to invest in
the Ukrainian judicial system, prosecutorial authorities, et
cetera, which we know will pay long dividends into the future
as Ukraine continues to modernize and to reform itself and to
align itself with the rest of Europe.
That is why we have and are proposing an internationalized
tribunal. We are promoting this in an entity called the ``Core
Group'' that Ukraine has convened in order to bring experts
together both at a diplomatic level, but also at a technical
level to explore the various models and to try and find a
consensus to be able to move forward.
Senator Risch. That is a really important effort. I know I
am out of time, but I want to ask--pursue one more question, if
I might.
I was fascinated--as we all know, common law develops,
whether it is the Anglo-Saxon common law, whether it is
international law, and I was fascinated by the--I think it was
the Germans' use of what one would call international
jurisdiction or unified jurisdiction.
I forget the exact name that they used. They actually used
it and convicted some people as a result of atrocities in
Syria.
How does--first of all, are you familiar with the concept?
I assume you are.
Ambassador Van Schaack. Yes.
Senator Risch. Then, secondly, is there some thought given
to using that as a jurisdictional foundation for this type of
an organization we are thinking about setting up?
Ambassador Van Schaack. Yes. You are referring, I think, to
universal jurisdiction or extra territorial jurisdiction. The
United States has that in our own penal code. We call it
present in jurisdiction because we do have usually an added
requirement that the defendant be present here in the United
States.
It does not matter the nationality of the perpetrator, the
nationality of the victim, or the place where the crime was
committed. Because these are international crimes, all states
have been essentially deputized to prosecute these crimes.
I am very familiar with the German experience. It has been
remarkable to see. They have been able to move against high-
level figures of the Assad regime in Syria and also members of
ISIL who have found themselves in Germany, and they have, I
think, in many respects inspired other European states to
utilize crimes that were on the books, but that had not really
been used.
Aggression does not work as well under that model precisely
because many states have not codified the crime of aggression
in their domestic penal codes.
Ukraine does have a provision. It is sort of a sovereign
trespassing kind of a provision and they are doing some active
prosecutions now for that crime within their domestic system.
I think they would like to see an internationalized effort
because they see Russia's war as not just an assault on their
territory, but an assault on the whole international rules-
based order, the U.N. Charter system writ large, and they want
the international community involved in this effort.
That is a secondary reason to, I think, pursue more of an
internationalized body that would have a lot of international
support.
Senator Risch. I guess I would not be as concerned--I
detected you are a bit concerned with countries not having a
specified statute in place regarding this.
I guess where we are plowing new ground on this new
jurisdictional idea--I guess I would not be as concerned about
the fact that they are--that other countries did not
necessarily have that in their body of law. I hope you will
give that some thought.
Ambassador Van Schaack. Yes. It just means they would have
to prosecute for war crimes or crimes against humanity and
often, you can imagine, cumulative charges that would make
perfect sense.
Many of the acts of aggression are being committed by
virtue of war crimes, attacks on critical elements of the
civilian infrastructure. It can be done is the short answer.
Senator Risch. Thank you. Thank you.
Ambassador Van Schaack. Thank you.
Senator Cardin [presiding]. Thank you. I am going to follow
up on Senator Risch's point and reference a resolution that
Senator Kaine and I filed today that supports your efforts for
an international tribunal, but takes a different approach to
that and I want to go through that with you, if I might.
There is no question about Russia's crime of aggressions,
no question about their committing crimes against humanity and
genocide. We have had hearings in this committee that have
established that.
We have had hearings in the U.S. Helsinki Commission that
has established the fact that this--all the conditions for
genocide have been committed by Russia.
Yes, I strongly support our efforts to help the ICC. I
strongly support our efforts to help the Ukrainian prosecutor
in any way that we can, but these are crimes against humanity
and they really do need an international tribunal, as you have
acknowledged.
The problem with the approach that you are taking within
the Ukrainian model is that you are using the Ukrainian system
and it raises the question of perceived impartiality.
I do not know how you overcome that with the method that
you are pursuing. You also will have legal immunity claims
because the entity that has committed or the individuals who
have committed these crimes are not going to be party to this.
To me, there is a very simple approach--establish it under
the United Nations. That is the international body that is
responsible, ultimately, for international tribunals.
It is--not only would bring appropriate attention to this--
these atrocities, but gives us a pathway to accountability and
gives us the greatest hope that it will deter future
atrocities.
Tell me how--why we are not going through the entity that
would remove any question of perceived impartiality and any
question of immunity.
Ambassador Van Schaack. Yes. Thank you for that question,
Senator. A couple of responses.
Number one, I think there are serious concerns moving
forward under the General Assembly on the legal front, but also
on the practical front.
Starting with the legal front, the body within the United
Nations system that has executive power is the Security
Council. Of course, it is completely paralyzed at this matter
because Russia has the privilege of the veto and it----
Senator Cardin. I agree that normally it is Security
Council, but the General Assembly has the ultimate power in the
United Nations.
Ambassador Van Schaack. The General Assembly, however,
under the charter system can only make recommendations. It
cannot take coercive action. It cannot compel states to act nor
can it compel states to cooperate with anything.
The legal question is could the General Assembly create a
court that could exercise compulsion against an individual,
hold an individual, restrict their liberty.
Senator Cardin. Do you not think they have a stronger claim
than one state establishing an international tribunal under
their law?
Ambassador Van Schaack. Well, it would be an
internationalized tribunal so ultimately the font----
Senator Cardin. Whether you are using the Ukrainian system
there----
Ambassador Van Schaack. Right.
Senator Cardin. --this is international. I think you run
into a comparable if not more severe challenge to the
legitimacy of the body--of the entities that would be coming
before the tribunal.
Ambassador Van Schaack. I mean, as my civil procedure
professor used to always say, jurisdiction is power, and so the
font of power with this Ukrainian model is through the
Ukrainian national system, which has plenary jurisdiction over
crimes committed on Ukrainian territory.
The General Assembly does not necessarily--it is not clear.
This would be breaking some serious new ground to try and
exercise coercive jurisdiction over an unwilling defendant and
then to subject that defendant to limitations on their liberty
if that person was ultimately convicted.
That is the legal concern, but I do want to talk about the
practical concern, which is speaking to our diplomats in New
York there is some serious concern about whether we have the
votes within the General Assembly to create a body of this
nature.
If you look at the voting patterns, what we see is general
resolutions that are calling for justice, condemning Russia's
actions, et cetera, garner in the range of 140 votes. The
minute that the General Assembly is asked to do something, that
drops considerably.
Even just blessing the creation of a register of damage got
only 90-something votes. Kicking Russia off the Human Rights
Council garnered only 93 votes, and there is serious concern
that some of the kind of states that do not want to get caught
in the revival of Cold War dynamics, they do not want to be on
record here voting for something, they would abstain and so you
would lose the legitimacy that comes from a strong vote.
Senator Cardin. Oh, I understand we do not go down that
path unless we had the votes.
Ambassador Van Schaack. Right.
Senator Cardin. I recognize that, but I would think that we
know how to engage other countries. It cannot be a sole U.S.
effort. The United States cannot sit on the sidelines, as you
pointed out. It has got to be a collective action. You have got
to nurture this before you take it to a vote.
It seems to me that the legitimacy here and the final
attention given to accountability is worth the consideration
and I would just urge you to--I am glad to see that you are
looking for an international tribunal. I think you need one.
I just do not know how you can get the--remove the
perceived challenges when you are using a one-country legal
system for an international tribunal. To me as an attorney,
that seems like it is problematic for the type of attention you
are trying to get in international legitimacy.
Ambassador Van Schaack. There are legal questions as to
whether--and I want to just stress your two prior questions
about immunity and about impartiality as well and that is a
nice segue to that.
There are some questions about whether any tribunal created
under the General Assembly or within the Ukrainian system could
overcome the head of state immunity of members of the so-called
troika. That would, again, be an issue of first impression,
really, here.
In this case, the assumption is that we would not have
custody over President Putin or other members of the troika
unless they were no longer in those positions, in which case
either an internationalized Ukrainian court or an international
body would be free to assert jurisdiction because head of state
immunity dissipates when the person is no longer in that
position.
On the impartiality question, I think the response to that
is the international community needs to step up and invest in
this process within Ukrainian courts and that ensures that it
does not appear to be some version of victor's justice, that
this is, in fact, scrupulously fair, that every defendant is
entitled to the full due process protections, and that only
those cases that are based upon the evidence and that merit
conviction are actually brought to justice.
Senator Cardin. I would just point out I think you have the
same problems of getting international cooperation for an
international tribunal under Ukrainian as you would under
General Assembly, perhaps even more.
Senator Ricketts.
Senator Ricketts. Great. Thank you very much, Mr. Chairman.
Thank you, Madam Ambassador.
Starting in April of last year, there were horrific images
of corpses littering the streets of Bucha surfaced and made the
entire world realize that Putin's goal was not just territorial
conquest in Ukraine, but the brutal repression of the Ukrainian
people and the nightmare that began in Bucha continues to this
day in Ukraine and that is why this hearing is so important.
The Ukrainian people deserve justice and I want to thank
you, Madam Ambassador, for your efforts to help get the
Ukrainian people that justice.
Even though we are talking about a lot of the legal and
jurisdictional aspects of how to bring Putin and his cronies to
justice, I want to make clear that in the short-term, the
biggest single thing we can do to make sure Ukraine and the
Ukrainian people get justice is to make sure that Ukraine wins
and Putin loses. That has to happen.
That is where, if you just think about what the Biden
administration has been doing, it has been slow to respond to
the request for Ukraine with regard to the types of weapons
they need. Whether it is the advanced HIMARS rockets, the
Patriot missile systems, Abrams tanks, and now F-16 training,
it seems like they are always a step behind, almost as if they
are trying to live up to Winston Churchill's axiom about
Americans that we will do the right thing after we have
exhausted all other possibilities.
In this case, this erratic and slow behavior is costing the
Ukrainians the opportunity to achieve the victory and also
costing Ukrainians' lives, but the question I want to get into
has to do with the abduction that Senator Risch mentioned about
of Ukrainian children. According to Ukrainian national
databases, Russia has forcibly transferred over 19,000
Ukrainian children to its territory. However, this number is
likely--like much higher.
Some children have been taken from occupied areas where
their parents were asked to sign a release form without being
told that their children would be taken away and not coming
back. Others, including those whose parents were killed by
Russian forces, have been forcibly adopted into Russia.
In February, Yale University's Humanitarian Research Lab
identified 32 integration camps where children are
indoctrinated in Russian history, propaganda, language, and
culture.
These monstrous abductions are part of a general genocide,
which we have talked about already, to erase Ukraine's identity
by stealing their future.
They have rightly been condemned as a war crime by the
international community and with the ICC issuing an arrest
warrant in March for Vladimir Putin and his children's rights
commissioner, Maria Lvova-Belova.
Even though we have focused our information on this--sort
of attention on this, the Ukrainian Government's NGOs,
advocates, have been trying to get these children back, but the
number is around 400 out of the potential 19,000 or more.
What more, Ambassador, can be done to assist parents? As a
father of three children myself, this is the most heart-rending
thing I can think of is having your children taken away from
you never to see them again. What else can we be doing?
Ambassador Van Schaack. Yes. It is a horrific feature of
this war. I absolutely agree with you as a mother of two. It is
terrifying to imagine what those children are experiencing and
the anguish that those parents must feel, and I know that there
are multiple efforts afoot.
Some of them are in the accountability space, but there is
also very quiet humanitarian work being done to try and get
those children back and create a list of them so we know when
they were last seen, where they may have gone, trying to
utilize open source investigative techniques to identify them
in photographs, for example, that the Russians are trotting out
of happy Ukrainian citizens as they are now being subjected to
Russification and reeducation to forget their home culture.
There is much that can be done here. I was quite happy to
see the ICC move forward on this as their first set of charges.
It is a grave breach of the Geneva Conventions and it will be
interesting to see whether there are additional charges
forthcoming on the basis of that.
I share your concern and I think this is something we
should be working across government to rectify.
Senator Ricketts. Is there enough legal support for these
families to be able to help recover their children?
Ambassador Van Schaack. There are. There are. I have been
to Ukraine and I met with the team that is focused on the
families, the survivors, and they are working very hard to get
them the resources they need in order to try and find where
those children are and do what they can to get them back.
Many times it requires parents traveling to Russia to
actually physically bring their children back and they are
doing that, which is remarkable.
Senator Ricketts. What about targeting the perpetrators of
this for--again, for war crimes, prosecution, all that? Are we
doing enough there to be able to target the people who are
facilitating this?
Ambassador Van Schaack. Well, what is remarkable about this
particular crime is that the two key defendants now have
essentially admitted to it and have bragged about it and have
praised each other for what they claim to be doing on a
humanitarian basis, when we in fact know there is no
humanitarian grounds to be doing this when--especially when it
is Russia itself that is creating the dire circumstances that
put those children at risk in the first place.
The Yale study that you mentioned, which is funded by the
State Department, they are looking through a whole series of
open source information including many of these photographs and
trying to use facial recognition software, for example, to
identify individuals who may be future defendants in cases
under war crimes and crimes against humanity for this crime
base.
Senator Ricketts. Mr. Chairman, may I just add one more
question? Thank you.
Also, last week I think, the Ukrainian Government was
talking about Belarus' complicity in removing about 2,000
Ukrainian children. What is the State Department doing with
regard to Belarus and them going along with this horrible
crime?
Ambassador Van Schaack. Yes. Belarus--there is no
question--is quite complicit in Russia's war of aggression in
Ukraine and I think it is important to focus when we think
about this aggression tribunal that Belarus and Belarusian
individuals could also be subjected to prosecution under this
tribunal.
We tend to focus on Russia, but to the extent that they are
complicit, and one of the grounds of committing the crime of
aggression is allowing your territory to be used to launch acts
of aggression against a third state, and so Belarus is very
much implicated in this set of crimes.
Senator Ricketts. Great. Thank you very much, Madam
Ambassador.
Ambassador Van Schaack. Thank you.
Senator Ricketts. Thank you, Mr. Chairman.
The Chairman [presiding]. Senator Shaheen.
Senator Shaheen. Thank you, Mr. Chairman, and thank you,
Ambassador, for being here.
There has been a fair amount of discussion about the
Justice for Victims of War Crimes Act that was passed. I was
proud to be a co-sponsor of that and I know that, as the
chairman and others have mentioned, there have been obstacles
to actually fully implementing the legislation.
Can you talk about--we have talked about DoD. I understand
the National Security Council has also been an obstacle.
Can you talk about how you are working in the interagency
process to actually administer this legislation and are there
other barriers that you have encountered that this committee
could be helpful with or the Congress could be helpful with?
Ambassador Van Schaack. Yes. Thank you. We do proceed on
the basis of an interagency consensus and so we are working
very hard to reach that consensus.
Those conversations remain ongoing and we are very grateful
to the new legislation. I know the Department of Justice as
well is quite happy with the new prosecutorial authorities that
they have.
They have created this War CAT--the War Crimes
Accountability Team. They have been appointed a very seasoned
senior prosecutor to be the war crimes counselor focused on
looking at those cases that might have a U.S. nexus as well and
contributing to what our friends and allies are doing in their
own national systems within Europe. It is really a full court
press here.
Senator Shaheen. Are you also discussing the idea of
restitution and reconstruction? I notice that one of the asset
forfeiture items the--those dollars were put towards Ukrainian
reconstruction. Are you discussing how that will unfold as well
and can you give us some insights into that?
Ambassador Van Schaack. That is right. In fact, we have had
the first circumstance in which an asset has been able to be
liquidated, which is really exciting to see. This is going to
be an enormous endeavor to rebuild, reconstruct Ukraine, given
the damage that has been wrought by Russia's war of aggression.
The Ukrainians have put forward a proposal for a register
of damages. That has been very well received by the
international community and, indeed, the Council of Europe
recently at its summit, which had not held a summit for several
decades, has blessed this project. It will be based in the
Hague.
The idea is that individuals, entities, groups, businesses
can register the damage that they have experienced at the hands
of Russian perpetrators, that when there are a body--a pool of
assets made available those could go towards helping to assist
those individuals to compensate them for the harm--the tangible
harm, the psychological harm--but also the business harm that
small businesses have experienced.
The idea is to build eventually some sort of a claims
commission that would be able to adjudicate those claims and
help those individuals and businesses get back on their feet.
Senator Shaheen. I think that would really be helpful and
if there is anything that we can do to be--to support that
please let us know.
Ambassador Van Schaack. Great. Thank you.
Senator Shaheen. You also talked about the commission on
aggression that could be formed. One of the other sad
commentaries on so many conflicts is the sexual assault and
rape element that is so much a part of crimes and particularly
war crimes and, obviously, we have seen a number of reports
about that with respect to the war in Ukraine.
One suggestion that has been made to me and I would like to
get your analysis of, is the idea of setting up a separate
commission that deals only with those sex crimes.
Do you have any thoughts about whether that might be
helpful and if that would set up a duplicate process that would
not be helpful or if--because that has been such a focus of so
many conflicts that that would help to shine a light on our
ability to address those kinds of crimes?
Ambassador Van Schaack. Yes. Thank you, Senator Shaheen.
We know that these crimes are historically underreported
and under prosecuted and for the reasons that we all
understand, including stigma that is associated with this in
families and communities, and I think we all need to work to
rectify that.
One of the main goals of the Atrocity Crimes Advisory Group
that I mentioned that we are funding and supporting with the UK
and the EU is to bring more of a survivor-centered approach to
prosecutions in Ukraine, and the Prosecutor General is often
the first to admit that that was not really the way they had
done things.
Witnesses were witnesses for the prosecution, they were
asked to give their testimony, and then they were asked to go
on their way, and he really wants to change that and I think he
is genuinely devoted to changing that and thinking about his
war crimes unit as being kind of a pilot, in a way, that could
then extend into his other areas of prosecution.
He is very keen to strengthen the ability to prosecute
conflict-related sexual violence and we have a number of
experts that have been deployed through the Atrocity Crimes
Advisory Group that have deep experience in this way to do
trauma-informed investigations and prosecutions.
Whether or not we need a whole separate body, it is
interesting. I would like to think about it a little bit.
Obviously, I always want to shed light on this--on these crimes
because they are so underreported.
I think it is important that we acknowledge that they exist
and we empower survivors to come forward and feel safe speaking
about it.
I do know that the Prosecutor General and the International
Criminal Court is very focused on this and they are doing so in
a way that is trauma-informed and survivor-centric.
Senator Shaheen. That certainly is appreciated, I know, but
that is also very much dependent upon who the individual
prosecutor is and what the makeup of the ICC is thinking about
at the time, and one of the advantages to codifying this kind
of an effort would be that it would make it a focus for the
future.
Ambassador Van Schaack. I agree completely.
Senator Shaheen. Thank you. Thank you, Mr. Chairman.
The Chairman. Thank you.
Senator Coons.
Senator Coons. Thank you, Chairman Menendez, Ranking Member
Risch, for leading this important hearing and for your joint
and, clearly, shared passion about this.
As you mentioned, Chairman, earlier you and I and a
bipartisan group of senators went to the Hague, met with the
prosecutor of the ICC, many of their senior staff. Had long
conversations about it and then acted promptly and effectively
in a bipartisan way and amended the underlying statute under
the--I think it is the ASPA.
For many years the U.S. Department of Defense and the U.S.
Government has resisted cooperation, support, engagement with
the ICC because of a concern about the potential for U.S.
service members to at some point be hauled in front of the
court.
We acted to amend that statute specifically in the case of
Ukraine in reliance on the circumstances. Like many of my
colleagues, I am outraged at Russia's conduct in Ukraine during
this war.
I believe there has been something like 88,000 documented
atrocities, crimes against humanity. You have gone through
them, my colleagues have gone through them, and I am grateful
for all the different international partners of the EU and the
UN and the OSCE and the ICC.
I am struck by two quotes from earlier in this hearing.
You, in response to a line of questioning, said it is hard to
imagine us standing on the sidelines and you, Mr. Chairman,
said the Department of Defense does not get to choose which
laws it obeys.
Help me understand what the challenge is here in getting
our government to cooperate with the ICC. You put it well. They
have never faced a challenge like this.
Russia can be counted on, not just in the case of the
Brazilian student, to infiltrate their systems, to attack
witnesses, to undermine their capacity to successfully
prosecute.
We have a wide range of important resources we can
provide--intelligence, documentation, financial support,
operational advice, partnerships in terms of protecting
witnesses.
Why would we not fully partner with the ICC in this
undertaking?
Ambassador Van Schaack. Thank you. We have had a
longstanding objection to the ICC proceeding against U.S.
personnel.
Senator Coons. Understandable.
Ambassador Van Schaack. That objection exists. It guides my
work, all of my interactions with the court. I have that as my
lodestar, in essence.
I think the fear is that if we in this matter assist with
the prosecution that involves another nonparty state, another
state that has not ratified the ICC treaty, that we would
somehow erode our ability to protect our own service members
because we are also in--we are similarly situated in the sense
that we are also nonparty states.
The reality is that that argument has no purchase before
the ICC and all elements of the court has already shown that.
They have already proceeded against the nationals of
nonparty states in the Burma matter, for example, in the
Georgia matter, in the Ukraine matter, in the Democratic
Republic of Congo matter where a Rwandan was in the sights at
one point.
It has no protective power before the court. What has
protective power, I think, is engagement, building trusted
relationships, keeping lines of communication open----
Senator Coons. Not committing gross atrocities.
Ambassador Van Schaack. If there are credible allegations
against U.S. service members having a credible process so that
we can say we are handling this.
We are handling this ourselves because our service members
deserve the full panoply of constitutional due process
protections under the Uniform Code of Military Justice.
I think that we can help in this matter and also maintain
the protections that we have, and as I praised the amendments,
they are surgical, they are carefully crafted, and they leave a
whole number of protections in place that have not--have
remained untouched.
Senator Coons. Two other quick questions, if I might.
The Alien Tort Claims Act, which I think is 28 U.S.C.
1350----
Ambassador Van Schaack. Fifty. Yes.
Senator Coons. --was for some time viewed as exactly the
statute enabling prosecutions or actions claims for crimes
against humanity. That has been narrowed.
Why not legislatively strengthen that? Why not use that as
the platform for action by Congress?
Ambassador Van Schaack. I think there is grounds to amend
and revisit the AT Act--it is a very old statute, right. I
mean, it was ratified at the founding of our nation.
Senator Coons. It is among the oldest. It was passed in
1789.
Ambassador Van Schaack. As you mentioned, the Supreme Court
has narrowed it considerably with their doctrines of
extraterritoriality.
Senator Coons. Right.
Ambassador Van Schaack. I could imagine some very discreet
amendments to the Alien Tort Statute that would open it back up
to individuals who have access to U.S. courts being able to
advance claims against individuals or entities so long as the
14th Amendment due process protections exist over personal
jurisdiction.
Senator Coons. Understood. We also met with the Prosecutor
General Kostin. What else can we and should we be doing to
strengthen Ukraine's ability to investigate, to document, to
prosecute, to hold accountable perpetrators of war crimes in
Ukraine?
Ambassador Van Schaack. I think there is more that the
Department of Justice could do if they had the resources to do
so in terms of seconding their expert personnel to work side by
side with Ukrainian prosecutors.
I know the attorney general is very keen to do that. He and
the Prosecutor General have developed a very close
relationship, very trusting relationship. While I am working
through civil society actors, through academic entities,
through experts that have been drawn from the world's war
crimes tribunals, we have a lot of expertise in house.
I cannot fund that with the kind of funding that I have,
but our INL office can help with the Department of Justice.
That would be another way that I think we could continue to
assist the Prosecutor General in the momentous task that he has
ahead of him.
Senator Coons. Thank you, Ambassador. Thank you for your
work in this area. Thank you, Mr. Chairman.
The Chairman. Thank you.
Senator Young.
Senator Young. Thank you, Mr. Chairman.
Welcome, Ambassador.
Ambassador Van Schaack. Good afternoon.
Senator Young. Good to be with you. Last month, Senator
Rosen and I introduced the Ukraine Human Rights Policy Act.
This would, among other things, establish a process for
Congress to nominate individuals for human rights sanctions
through CAATSA.
Through this legislation it is our hope and fervent belief
that we can ensure that U.S. has the authority to respond to
the Russian Government's atrocities and continue to uphold our
commitment to stand with the Ukrainians in their fight for
democracy as well as their own humanity.
Can you describe our government's current processes for
selecting both on-the-ground perpetrators and senior officials
for targeted sanctions for human rights violations and tell me
to what extent the process is working or not working?
Ambassador Van Schaack. Indeed. Thank you, Senator, for
that question.
We have a sanctions coordinator now within the United
States State Department, which is very helpful working with
Treasury and Commerce to coordinate the whole range of
sanctions that do exist.
I know that we have deployed them very robustly in the
Russia context. More than 7,000 individuals, for example, has
been subject to travel bans under 7031(c).
We have a number of--dozens of individuals who have been
subjected to individual sanctions. We have the Wagner Group, of
course, also subject to sanctions.
The key, of course, is to have designation packages. We
need to know the individual's name, but we also often need to
know some biometrics in order to be able to tell banks around
the world to freeze assets if they happen to have them. It is
not enough to say there is a grainy photograph of some dude in
Bucha that we want to sanction. We need to have information.
To the extent that we can continue to collect that
information from all available sources, the Ukrainians are very
keen to assist us in this regard.
They want to see these sanctions authorities exercised to
the maximum extent possible as well, but also civil society
actors who often have unique sources of information, and my
office is funding a number of these civil society organizations
that want to feed into these sanctions packages.
Senator Young. If this legislation were to pass and
Congress were empowered to nominate individuals for human
rights sanctions through CAATSA, how would the interaction
between your office and the sanctions coordinator have to
change?
Ambassador Van Schaack. I do not know that it would. I
would have to look at the legislation. I apologize, I have not
seen the draft text. I am happy to take that back and give it a
close read.
We work quite closely with them. It is really their job,
though, so we are often more in a support role. If we come
across names that we think are appropriate in any situation in
which we know we have a sanction authority, we will help them.
We often are also quite encouraging of them to make sure
that our sanctions parallel justice processes that are
happening around the world, including at the ICC.
If we have a sanctions authority, we should be sanctioning
individuals who are also being prosecuted by the ICC. They have
reasonable grounds to believe they have committed atrocity
crimes. We would be keen to be of assistance in that regard.
Senator Young. That is--we will follow up with the draft
legislation----
Ambassador Van Schaack. Please do. Thank you.
Senator Young. --and if you have any technical feedback, I
welcome that.
We would all agree that that people who commit war crimes
and crimes against humanity have to be held criminally
accountable, though it remains an open question as to how this
can best be accomplished.
How do you assess the likelihood of any sort of
accountability for Russia's atrocities in Ukraine? Is it likely
to be confined to those who are plucked off of the battlefield
or is there a way that we can ensure it is broader in scope as
we look, God willing, to a day in which the conflict ceases?
Ambassador Van Schaack. My hope is that the various
pathways to justice that exist will be ready, prepared to move
forward the minute there is a target of opportunity, but you
have put your finger on the real challenge, which is custody
over the accused.
There are individuals in Ukrainian custody and those cases
have been able to proceed. They also have the ability to
proceed in absentia. We do not in our courts, and many courts
do and many courts do not, depending on their national legal
framework.
Those cases, though, in absentia are sometimes
unsatisfying, as you can imagine. You want to see that
defendant in the dock having to answer to those particular
charges.
This is a long game, though, those of us in this work. In
fact, just today the Yugoslavia tribunal issued its final
judgment now decades after the war in the former Yugoslavia.
Then, likewise, last week, the final--one of the few final
Rwandan genocidaires was captured in South Africa and now will
be brought to justice.
We have to think about this in terms of generations, not in
terms of the next year. My goal is to collect evidence,
preserve that evidence, strengthen the systems so that the
foundation is laid for when we do get that individual who
chooses to travel, who gets tossed out of Russia, whatever the
circumstances, fall into custody, we are ready. Evidence is
available, charges can be pressed, and that case can move
forward.
Senator Young. You have just anticipated sort of my next
line of questioning because I would not expect--we certainly
cannot bank on a Russian Government, however constituted, once
violence has ceased to cooperate and send their own nationals
to us, though a variety of carrots and sticks can be brought to
bear.
How should our bilateral diplomatic behaviors towards
Russia change until Russia were to comply with international
criminal justice efforts?
Ambassador Van Schaack. Yes. I mean, we are all hopeful, I
think, for a political transformation within Russia and the
hope is that the Russian people and that others in leadership
positions recognize the terrible disaster that this has been
for Russia militarily, but also in terms of their just standing
on the international stage.
They are an international pariah. Their assets are frozen
around the world. They cannot travel. Many of them will not be
able to travel.
You are hearing all sorts of limitations that have been
placed upon Russia and Russian figures because of the terrible
decision to invade Ukraine.
We need to, I think, strengthen relationships as we have
tried to do always with moderates, with reformers, with those
democratic champions, with civil society actors that stand
ready to try and build a genuine civil society movement within
Russia, but there is only so much one can do while Putin
remains in power.
Senator Young. Thank you.
The Chairman. Thank you.
Senator Van Hollen.
Senator Van Hollen. Thank you, Mr. Chairman, and thank you,
Madam Ambassador.
Ambassador Van Schaack. Thank you. Good afternoon.
Senator Van Hollen. Good afternoon. As you just said in
response to Senator Young, and I think you got to the core of
the issue, this is the long game.
It is essential that we send the message that we will
pursue the long game and pursue the perpetrators of crimes
against humanity and these other crimes until we achieve
justice, and I think the example you gave from Yugoslavia is a
good one of that persistence.
Because we can essentially make determinations and findings
of war crimes, crimes against humanity, genocide
determinations, but, as you said, unless we can find a way to
get essentially jurisdiction over the individual, we are not
able to follow through with the prosecution. Is that right?
Ambassador Van Schaack. That is right.
Senator Van Hollen. Okay. One of the things Congress did
recently was try to provide more avenues for the Administration
to get jurisdiction over the individual, including through
extradition.
My question is have you been able to use any of those
additional tools with respect to prosecuting these war crimes
and do you have any plans in place to do so?
Ambassador Van Schaack. Yes. Thank you.
I think the DOJ is probably a little bit better positioned
to answer that question. I am grateful to that and I am very
grateful that Congress recently has helped align our statutes
with those of our closest friends and allies in Europe who have
very robust prosecutorial authorities and a kind of
constellation of overlapping statutes to be able to do this
work.
This is about international cooperation. These are
transnational crimes. You may have a witness who is located in
one country testifying in proceedings in another country
against an individual who is found in a third country who
committed crimes in a fourth country.
We need to be coordinated and extradition is a really key
tool in this regard.
Senator Van Hollen. Are you aware of any examples where we,
the Justice Department, is seeking extradition where a third
country is not agreeing to----
Ambassador Van Schaack. I am not. I can, though, if you
will indulge me, point out a little gap that does exist in the
penal code that I have not mentioned, but I know that DOJ cares
deeply about and that is the ability to seek the extradition of
a perpetrator who would torture a U.S. citizen.
Because we have what is called present in jurisdiction, the
defendant needs to be present in the United States for us to
press charges against that person and we cannot seek their
extradition if they are not present under crimes that require
their presence.
You have to have presence of the person to press those
charges and you cannot seek extradition unless they are
present. It is a little bit of a catch-22.
If you were to do a very surgical amendment to 18 U.S.C.
2340 to allow for present in jurisdiction, if we knew that U.S.
citizens had been subjected to torture abroad we could seek the
extradition of those individuals and I know that DOJ would
appreciate that.
Senator Van Hollen. Well, we look forward to working with
you to close the loophole. I think there is probably strong
bipartisan agreement to do that.
Ambassador Van Schaack. Okay. Yes. That is a little tiny
loophole. It is inadvertent and so it is a quick fix.
Senator Van Hollen. Let me follow up. The chairman made the
point, which I agree with, which is that we pass legislation
instructing all agencies in the U.S. Government to cooperate
with the ICC and provide evidence that would support their
prosecution of war crimes.
The Defense Department is clearly dragging their feet. My
question to you is what has the impact of that been? In other
words, what evidence might we have been able to supply to the
ICC that we have not supplied because DoD has not been
cooperative?
Ambassador Van Schaack. We generally do not discuss the
types of information that gets shared. It is, I think, safe to
say that there is a range of very actionable information that
we have been able to collect that might be very helpful to a
justice process anywhere and we can share that with other
entities.
We can share that with the Commission of Inquiry for the
UN. We can share that with individual states that might be
prosecuting. We can share that with the Prosecutor General. We
cannot share it with the ICC.
Senator Van Hollen. Because of the position DoD has taken,
right?
Ambassador Van Schaack. Because we do not have consensus
yet on that on moving forward.
Senator Van Hollen. The one agency that is not consenting
is DoD. Is that right?
Ambassador Van Schaack. You did hear, I think, the
Secretary of Defense at the Appropriations Committee.
Senator Van Hollen. It is just a yes or no. I mean, I do
not think we are, right?
Ambassador Van Schaack. Yes.
Senator Van Hollen. The Defense Department is not
cooperating in that way, right?
Ambassador Van Schaack. Yes.
Senator Van Hollen. Thank you. Thank you, Mr. Chairman.
The Chairman. Senator Kaine.
Senator Kaine. Thank you, Mr. Chair.
Ambassador Van Schaack, good to see you. It is Van Schaack,
right? Van Schaack?
Ambassador Van Schaack. Van Schaack, yes. Perfect. Yes.
Senator Kaine. I want to ask you about 2014. A lot of the
focus has been----
Ambassador Van Schaack. Yes.
Senator Kaine. --on justice and accountability following
the February 2022 invasion of Ukraine by Russia, but this was
an invasion that began in 2014. If you can talk about efforts
to pursue accountability against Russia for abuses in Ukraine
that began in 2014. Just a couple----
Ambassador Van Schaack. Yes. We forget that, do we not, but
that this war really did begin in 2014, and while it was not--
you did not see the level of horror that you see today, there
were war crimes committed then and we do not even have access
to some of those territories to have full sense, and we have
seen as Bucha was mentioned as the Ukrainians take back their
territory you see the consequences of Russian control and
occupation very starkly.
There are a number of efforts underfoot. In fact, the
project that I am funding, we had begun to fund before 2022. It
was a much smaller project. We have had to scale that
considerably in light of the massive explosion of war crimes
and other atrocities being committed since 2022.
Already, there was a project in place to support the
Prosecutor General and exploring how to bring potential cases
to the extent they had custody over any individuals and had
witnesses and evidence available to do that.
The United Nations also has a--has had a longstanding
monitoring mission focused on Ukraine that has been collecting
information from the beginning and so that information is all
available and can be shared with prosecutorial authorities
around the world.
Senator Kaine. Talk to us a little bit about the challenges
of dealing with abuses committed by the Wagner Group as an
example of a nonstate agency.
The ICC probably set up with a certain kind of defendant or
target in mind. The Wagner Group is a nonstate actor. Talk a
little bit about the challenges that that presents.
Ambassador Van Schaack. Yes. There is no question that the
Wagner Group is a malign force wherever it is--finds itself,
across the Sahel and other places, Central African Republic.
Now we are seeing in Libya and, of course, moving into Ukraine.
They are a nonstate actor, but most of the crimes that are
prosecutable either in our domestic system, in other courts'
domestic systems, and at the ICC make no distinction between
state actors and nonstate actors.
They can be held responsible for any war crimes, crimes
against humanity, or other depredations that they might commit
wherever they may find themselves, and I know that the
prosecutor of the ICC is very interested in looking at Wagner
in part because they are operative in so many of the other
situation countries where he already has jurisdiction and is
investigating. To the extent that we can be of assistance in
that regard, I think that could help further isolate and
neutralize Wagner around the world.
Senator Kaine. I would like to change topics. I sometimes
do this in a hearing. I take advantage of a great witness not
on the advertised topic, but on something that ----
Ambassador Van Schaack. Okay.
Senator Kaine. --you have as an expertise and that is
Venezuela.
Ambassador Van Schaack. Yes.
Senator Kaine. With you here, I just am--I want to ask
about it. In this hemisphere, an estimated 7 million people
have fled Venezuela since 2015, rivaling the 8 million that
have fled Ukraine. I will be reintroducing the AFFECT Human
Rights in Venezuela Act which would direct the Department to
push for an extension of the independent U.N. fact finding
mission to investigate gross violations of human rights in
Venezuela.
That mission issued a detailed report last September
assessing that the Venezuelan Maduro regime through the state's
intelligence services have committed crimes against humanity
including torture, extrajudicial killings, sexual violence.
The ICC has indicated its intention to resume the
investigation. What is your assessment as you liaise with the
ICC about their ongoing efforts in Venezuela, and what lessons
can we draw from the fact finding mission in Venezuela about
documenting crimes against civilians?
Ambassador Van Schaack. Yes. Thank you, Senator Kaine. I
know this has been a longstanding interest of yours and the
Venezuelan people really do deserve our full attention here.
Ukraine is important, but I take my title very seriously. I
am the Ambassador-at-Large for Global Criminal Justice and so I
do try and get out into the field and to other situation
countries and to continue to push for justice there.
The fact-finding mission we supported that very strongly.
They have done excellent work. Their reports are quite telling
in terms of documenting the various crimes against humanity
that have been committed across Venezuela when it comes to
innocent protesters, when it comes to members of the
opposition.
The courts have become tools of repression rather than
tools of justice and all of that has been scrupulously
documented by the fact-finding mission.
As you mentioned, there is an ICC investigation there. The
prosecutor has been there. He tried, I think valiantly, to work
collaboratively with the Maduro government in order to
encourage them to do their own investigations here and to show
good faith in terms of rooting out the perpetrators of violence
against protesters and others and I think he has reached the
end of his rope in this regard and now has moved to be able to
reopen that investigation and to move forward in a more
adversarial context and adversarial posture.
Senator Kaine. Is there a chance that some of the other
nations in the region that have resumed relations with the
Maduro government--Colombia and Brazil--could--if they would be
willing to do so, could effectively pressure the Maduro
government to be more cooperative with the ICC?
Ambassador Van Schaack. I would certainly hope so. I mean,
that case exists because of a then unprecedented collective
referral by the region to the ICC.
This was the region saying we want the international court
engaged here in Venezuela. We cannot manage it ourselves. We
cannot manage it on a regional level. We need the international
court involved.
I would hope that they would follow-up on that commitment
to justice and also continue to put pressure on the Venezuelans
to participate and cooperate with the work of the ICC, but also
to do this work--the hard work--internally in order to bring
justice.
Senator Kaine. I would hope that they would do the same
thing, especially since Colombia is very much on the front line
of consequences of the disaster in Venezuela and they should
not be reticent to call it out and encourage the Maduro
government to cooperate with the ICC.
Ambassador Van Schaack. Yes. Indeed, I was just in
Colombia. They are on the forefront of transitional justice
with their own system and so I think they see the value of
investing in the justice sector here.
Senator Kaine. Thank you.
Ambassador Van Schaack. Yes. Thank you.
Senator Kaine. Mr. Chair, I appreciate it.
The Chairman. Let me thank you, Senator Kaine, for raising
these issues. I share Senator Kaine's concerns and interest in
this regard and I appreciate your pursuing it.
Ambassador, let me just say I have sat and presided over a
lot of hearings. I have declared some of them in which I have--
some of the worst hearings I have ever presided over and I--you
were there, right?
[Laughter.]
The Chairman. The one I was talking about. This is one of
the best----
Ambassador Van Schaack. Please tell me there is a ``but.''
Please tell me there is a ``but'' here.
The Chairman. This is one of the best hearings I have
presided. I appreciate your clarity and your directness in
terms of your answers to questions----
Ambassador Van Schaack. Thank you.
The Chairman. --something that is refreshing that maybe you
could hold a seminar at the State Department about.
Ambassador Van Schaack. Thank you.
Senator Risch. I concur.
The Chairman. The record for this hearing will remain open
until the close of business on June 1, 2023. Please ensure that
questions for the record are submitted no later than tomorrow.
With the thanks of the committee, this hearing is
adjourned.
[Whereupon, at 3:37 p.m., the hearing was adjourned.]
----------
Additional Material Submitted for the Record
Responses of Ambassador Beth Van Schaack to Questions
Submitted by Senator Benjamin L. Cardin
Question. Legality of an International Tribunal to Prosecute Crimes
of Aggression Against Ukraine: It is near-universally recognized that
Russian individuals directed by the Russian Federation's Government
have committed thousands of crimes against humanity, attempted
genocide, and war crimes since it began its invasion of Ukraine in
February 2022, and they must be held accountable. It is also clear that
existing courts--including the International Criminal Court and
Ukrainian domestic courts--are not fully equipped to hold accountable
the Russian Federation and Russian officials for the distinct crime of
aggression. Due to the particulars of the way that Article 8 (bis) was
incorporated into the Treaty of Rome, heads of government--such as
Vladimir Putin, who personally ordered the invasion and thus committed
the crime of aggression--are beyond the reach of the ICC. During the
hearing, you mentioned that the Biden administration is pursuing a
hybrid tribunal, blending Ukrainian and international law, rather than
a purely UN-created tribunal. However, I am concerned this method would
not be strong enough to hold Putin and his Russian cronies personally
accountable due to generally accepted norm that domestic courts cannot
purse heads of foreign states. You mentioned that the hybrid system
idea came about partly over concerns regarding the legality and
practicality of an independent international court created by the UN
General Assembly.
However, the UN General Assembly has voted to create court systems
before, including the Extraordinary Chambers in the Court of Cambodia
(ECCC). While one could argue that the ECCC is a unique case that was
ultimately integrated into the Cambodian legal system, when the ECCC's
creation was first contemplated, it was not originally envisioned to be
a tribunal within the Cambodian Court system. Additionally, ``Uniting
for Peace'' resolution 377A(V), adopted by the General Assembly on
November 3, 1950 states that:
``Resolves that if the Security Council, because of lack of
unanimity of the permanent members, fails to exercise its
primary responsibility for the maintenance of international
peace and security in any case where there appears to be a
threat to the peace, breach of the peace, or act of aggression,
the General Assembly shall consider the matter immediately with
a view to making appropriate recommendations to Members for
collective measures, including in the case of a breach of the
peace or act of aggression the use of armed force when
necessary, to maintain or restore international peace and
security. If not in session at the time, the General Assembly
may meet in emergency special session within twenty-four hours
of the request therefor. Such emergency special session shall
be called if requested by the Security Council on the vote of
any seven members, or by a majority of the Members of the
United Nations.''
Given this legal precedent at the UN General Assembly on creating
an independent international tribunal and its resolution calling for
collective measures during a breach of peace, why is it the Biden
administration's position that this process is politically difficult
and ``legally challenging''?
Answer. We think it is essential that a Special Tribunal for the
Crime of Aggression against Ukraine have a firm legal basis to enhance
its legitimacy and mitigate allegations of partiality or illegitimacy.
A United Nations General Assembly (UNGA) resolution cannot be the legal
basis for such a court. Under the United Nations Charter, the UNGA's
authorities are limited in this area to making recommendations to
United Nations (UN) member states. The UNGA does not have authority to
overcome rules of international law or authorize coercive actions.
In relation to the precedents you reference, the Extraordinary
Chambers in the Courts of Cambodia was established within Cambodia's
national judicial system. Its focus was the prosecution of Cambodian
individuals for crimes in Cambodia; thus, the issue of immunities
applicable under international law to foreign officials was not
presented. The agreement between the UN and Cambodia, which the UNGA
approved, did not purport to establish the court nor did it purport to
overcome rules of international law or vest the court with powers
beyond what a Cambodian court would otherwise have.
The Uniting for Peace mechanism clarified the UNGA's ability to
recommend collective measures to address threats to international peace
and security, but the mechanism did not expand the UN General
Assembly's authorities in this space beyond recommendatory ones. States
must draw on other available authorities under international law or
domestic law as a basis for implementing such recommendatory action.
Uniting for Peace did not confer upon the General Assembly the powers
of the Security Council.
Ukraine has convened a Core Group to discuss the technical legal
issues presented by the imperative of prosecuting the crime of
aggression. We are committed to working with Ukraine and the Core Group
in addressing these, and other complex, legal issues.
Question. Practicality of an International Tribunal to Prosecute
Crimes of Aggression Against Ukraine: During the hearing, you mentioned
that an independent international tribunal would not be practical due
to the reluctance of some countries to vote in favor of it at the UN
General Assembly. However, any such tribunal on Russian aggression in
Ukraine--hybrid or fully international--would face this same issue of
nations seeking to avoid ``taking a side.'' One might have thought, in
late 2021, that it would politically be difficult to persuade NATO
members and many other like-minded nations to come to the aid,
militarily and otherwise, in support of Ukraine's self-defense. Yet a
difficult task has been accomplished thanks to principled and
determined American leadership.
Why can't the United States Government similarly overcome doubts
and hesitation by the countries of the world in holding Russia's head
of government and his senior cronies accountable for the crime of
aggression--which they have so blatantly and unapologetically
committed?
Answer. The Ukrainians rightfully see Russia's aggression--which
began in 2014 and greatly intensified in 2022--as having unleashed all
the subsequent horrors they have experienced. The United States agrees.
We condemn Russia's war of aggression and efforts at territorial
conquest. We understand that permitting impunity for Russia's malign
conduct will embolden other actors to engage in similar blatant
violations of state sovereignty, territorial integrity, and political
independence. We therefore support developing a special tribunal on the
crime of aggression against Ukraine.
There are limitations under international law for all models under
consideration, including in regards to the issue of immunities. In any
case, it is important to emphasize that the imagined tribunal could
still investigate and formulate charges against high-ranking officials,
including Putin. Additionally, head of state immunity no longer applies
once Putin is out of office. And many individuals who would not benefit
from head of state immunity might be prosecutable now if they were
sufficiently involved in planning, preparing, initiating, and waging
Russia's war of aggression.
An aggression tribunal would be unprecedented in the modern era
and, as a result, there are many legal and practical issues that will
need to be worked out, including those related to immunities,
definitions, custody, and others. It is important to get this right. We
look forward to working with partners, including Ukraine, on these
complex issues.
Question. Impartiality of an International Tribunal to Prosecute
Crimes of Aggression Against Ukraine: I also remain concerned that an
international tribunal rooted in Ukrainian law would not be seen to be
fair and impartial given that it is taking place within the legal
framework of the country being invaded.
What are the prospects that jurors or judges without a strong
opinion could be marshalled to participate in such proceedings?
Answer. The State Department is committed to working with Ukraine
to ensure that a Special Tribunal on the Crime of Aggression against
Ukraine adheres to principles of due process and impartiality embedded
in international law, both in practice and in perception. We support a
tribunal that is highly internationalized, including having non-
Ukrainian judges, non-Ukrainian prosecutors, and other non-Ukrainian
staff, to ensure that the Tribunal benefits from international
expertise and to mitigate any perceptions of bias. We have supported
similar types of courts in the past, such as the Kosovo Specialist
Chambers, the Extraordinary African Chambers, and the Special Criminal
Court in Central African Republic, which were established within the
states' own judicial systems, but internationalized through the
appointment of international judges, prosecutors, and staff.
Question. How would the hybrid court overcome accusations of
impartiality it would inevitably face not only from Russia--but also
Ukraine's allies and trading partners and the judgment of history?
Answer. To overcome allegations of impartiality and to guard
against perceptions of illegitimacy, it is essential that a Special
Tribunal on the Crime of Aggression against Ukraine be founded on a
firm legal basis and enjoy widespread international support. The model
we support is the only one of the two in current discussions with a
clear legal basis under international law that respects the UN Charter.
It is also the one most likely to garner widespread and diverse
international support. Such an internationalized tribunal will be more
likely to enjoy dependable financial support as compared with other
past tribunals whose funding has withered over time. By rooting the
court within Ukraine's judicial system, international investment will
not only capacitate accountability for the crime of aggression, but it
will also enhance Ukraine's own domestic processes, further
institutionalize the rule of law, and enable multiple forms of
international support that will have a lasting impact for generations
thereafter.
We are committed to the Special Tribunal ensuring respect for fair
trial guarantees, especially as it is important to mitigating
perceptions of bias, including providing defendants with applicable
legal protections, and ensuring that only those cases that are based
upon evidence and merit conviction are actually brought to justice.
In the Nuremberg and Tokyo tribunals, although defendants faced
justice in courts established by the victors of World War II, the
tribunals' dedication to fair and impartial legal adjudication
underpinned the validity of their rulings and secured their legacy as
foundational mechanisms in the development of international criminal
law. It will be essential that a Special Tribunal similarly uphold the
highest standards of justice, and we are committed to working with
Ukraine and partners to enable that.
[all]