Introduction

Mr. Chairman, Ranking Member Graham, and distinguished members of the Senate Judiciary Committee.  It is an honor and privilege to address you as the sixth U.S. Ambassador-at-Large for Global Criminal Justice.

Thank you for accepting the State Department’s written submission in connection with the hearing dedicated to “Holding Russian Kleptocrats and Human Rights Violators Accountable for their Crimes Against Ukraine,” which took place on April 19, 2023.  Your hearing, and your tireless work since Russia’s full-scale invasion of Ukraine, has made the U.S. government stronger in its efforts to combat international crimes and support our allies and partners, including Ukraine, in ensuring justice and accountability for the ruthless acts of violence we are witnessing daily around the world, in Ukraine, China, Burma, and elsewhere.

Last year, this Committee took the historic step of ushering through The Justice for Victims of War Crimes Act to update the federal war crimes statute and enable the prosecution of suspected war criminals found in the United States, regardless of the locus delicti or the nationality of the victims.  With this jurisdictional gap now firmly closed, it has become more difficult for perpetrators to use the United States as a safe haven to avoid accountability.  The new prosecutorial authorities also will enable the United States to do its part in delivering justice for victims of brutal and illegal acts committed under the guise of war.

The United States now has the opportunity to build on this important foundation and exercise further leadership in international justice and accountability through supporting prosecutions for the crime of aggression and domestically criminalizing crimes against humanity.

Russia’s full-scale invasion of Ukraine is a manifest violation of the UN Charter.  This is a war of aggression and territorial conquest that has included widespread war crimes and crimes against humanity.  In March of last year, Secretary Antony Blinken announced that, based on information then currently available, the U.S. government assessed that members of Russia’s forces were committing war crimes in Ukraine.  Earlier this year at the Munich Security Conference, Vice President Kamala Harris announced our determination that members of Russia’s forces and other Russian officials have committed crimes against humanity on a widespread and systematic basis, including torture, sexual violence, and the deportations of civilians.  And just last month, the Department announced U.S. support for a tribunal dedicated to prosecuting the crime of aggression against Ukraine.

Indeed, members of Russia’s forces have committed international crimes in every region in which its military has been deployed.  These include the unlawful transfer of Ukrainian civilians—including thousands of children—within Russia-occupied and -controlled parts of Ukraine and the deportation of thousands of Ukrainian civilians to Russia as part of its so-called filtration operations—a grave breach of the Fourth Geneva Convention.

My office, together with partners throughout the U.S. government, is actively working on preventing further atrocities, documenting the commission of international crimes, and pursuing justice on behalf of victims.

While Congress has strengthened the U.S. ability to prosecute war crimes domestically, there is more that can be done to combat the remaining components of Russia’s criminal campaign in Ukraine: the crime of aggression and crimes against humanity.  In my statement, I will detail our efforts to stand-up and support an internationalized tribunal based in Ukraine’s judicial system dedicated to prosecuting the crime of aggression.  I will also detail how this Committee can close a remaining critical gap in our federal laws by enacting domestic crimes against humanity legislation.

Supporting Comprehensive Accountability for the Commission of International Crimes, Including the Crime of Aggression

Following the Second World War, the prosecution of the crime of aggression—“crimes against the peace” in the lexicon of the era—was deemed necessary to reinforce the inviolability of the principles of territorial sovereignty and political independence that Nazi Germany so egregiously violated through its multiple invasions across Europe.  Over 75 years later, the investigation and prosecution of this crime has again become imperative to reaffirm and reinforce the principles that undergird the UN Charter, which Russia has so flagrantly violated with its invasion of Ukraine.

The U.S. government’s broader approach to the crisis in Ukraine involves three main pillars: (1) strengthening Ukraine’s hand on the battlefield so it can be in a better position at the negotiating table; (2) alleviating the humanitarian crisis caused by Russia’s unprovoked war; and (3) supporting multiple pathways towards justice and accountability.  My office is working to strengthen this third pillar.  To this end, and together with the broader U.S. government and many friends and allies, we are pursuing several lines of efforts to promote justice and accountability for Ukraine.

Four pathways to justice exist, and we are working to enhance each. The first pathway involves international courts and institutions.  Our efforts here include working toward the establishment and renewal of the Independent International Commission of Inquiry on Ukraine and twice invoking the Moscow Mechanism of the Organization for Security and Co-operation in Europe.  The United States has also intervened in Ukraine’s case against Russia under the Convention on the Prevention and Punishment of the Crime of Genocide before the International Court of Justice.  Finally, the Prosecutor of International Criminal Court received an unprecedented number of state referrals to open his investigation into Ukraine.   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.  There are thousands of war crimes investigations already underway, with investigators and prosecutors working under harrowing conditions.  Nonetheless, the Ukrainian Office of the Prosecutor General (OPG) has recorded more than 80,000 incidents that may constitute prosecutable crimes—a daunting task that would overwhelm even the most well-resourced prosecutorial team.  Alongside the United Kingdom and the European Union, we are coordinating multifaceted support to the OPG through the Atrocity Crimes Advisory Group (ACA).  ACA experts—many of whom are veterans of national and international war crimes prosecutorial teams—provide technical assistance and training in international criminal law and practice to assist Ukrainian investigators and prosecutors in Kyiv and out in the field.

The third pathway is aimed at enabling 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.  European prosecutors are opening structural investigations into the conflict in order to enable them to move quickly once a suspect comes within reach. The U.S. government is supporting 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.  The Ukrainians rightfully see Russia’s war of 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.  There are compelling reasons to prosecute the crime of aggression in this context to preserve and protect the values the UN Charter was designed to uphold.  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.

In terms of what a tribunal dedicated to prosecuting the crime of aggression should look like, various proposals are under discussion.  Since World War II, a range of international criminal justice models have emerged, and we have the benefit of having seen what works and what does not.  At this critical moment, it is important to draw upon these past practices.  In formulating our position, the State Department has been guided by several core principles: maximizing accountability for the crime of aggression; generating the greatest international support and legitimacy for this effort; ensuring the effective marshaling of international resources, which are already stretched in the face of multiple competing crises, including those caused by this very war; ensuring best practices in terms of fair trial and due process; continuing to enhance Ukraine’s domestic legal capacity; and promoting and ensuring respect for core principles of international law.

With these principles in mind, we favor a tribunal on the crime of aggression that is rooted in Ukraine’s judicial system, enhanced with international elements in the form of personnel and expertise, structure, and support (including in terms of funding and cooperation).  Such a tribunal would likely be located elsewhere in Europe to enhance security and facilitate international involvement.  This includes potentially positioning the tribunal alongside Eurojust and the newly established Centre for the Prosecution of the Crime of Aggression (ICPA), which will commence investigations into the crime and begin to develop dossiers on potential perpetrators.

A tribunal with these features is the one most likely to achieve meaningful accountability for the crime of aggression against Ukraine.  It is a model 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.  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.  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.

These will be the first prosecutions of the crime of aggression in the modern era. It is critical that we, as an international community, get the tribunal’s establishment right and proceed in a manner that is best supported by international law and practice and that garners broad international support.  We believe this is the model that can do just that. We understand, of course, there are limitations with this proposal, as there are for all models under consideration, including the issue of immunities.  But that issue is implicated by other proposals as well and does not prevent robust investigations in the meantime.

We also understand this model may require the United States to work with Ukraine to ensure that its legal system, including its Constitution, permits the creation of this new court.  That is an issue that may need to be confronted regardless of which model is chosen.  And the international community has faced—and successfully navigated—the need to make careful changes to domestic legal frameworks to internationalize justice before in relation to other situations, including in Cambodia and Kosovo. It may take time—as international justice always has—but any potential hurdles can be overcome here as well.

Third, since it is rooted in Ukraine’s judicial system, we believe this model is the one most likely to garner diverse and prolonged international support, including the long-term funding needed for an exercise that may take years to complete if key defendants remain out of reach.

Finally, the modalities of such a tribunal remain under discussion and debate internationally, and we recognize that there will be significant legal, policy, and logistical challenges to be overcome in the weeks and months ahead.

Nonetheless, joining the many nations that have announced support for a special tribunal on the crime of aggression in Ukraine was a milestone moment for the United States. We are committed to working with Ukraine, and countries around the world, to stand up, staff, and resource such a tribunal in a way that will help support comprehensive accountability for the international crimes being committed in Ukraine.  The egregiousness of Russia’s actions demands accountability.  The U.S. government is behind this initiative, and we will reach out for Congressional support when discussions become concretized.

Supporting Accountability for Crimes Against Humanity

In February of this year, Vice President Harris announced Secretary Blinken’s determination that members of Russia’s forces and other Russian officials have committed crimes against humanity in Ukraine.  This determination followed extensive analysis by the Department, including my office, of information indicating that members of Russia’s forces

  • committed execution-style killings of Ukrainian men, women and children;
  • tortured civilians in detention, including through beatings, electrocutions, and mock executions;
  • committed sexual violence, including against women and girls;
  • and, alongside other Russian officials, deported hundreds of thousands of Ukrainian civilians to Russia, including children.

As Secretary Blinken explained in his statement, “These acts are not random or spontaneous; they are part of the Kremlin’s widespread and systematic attack against Ukraine’s civilian population.” When it comes to the deportation of thousands of Ukrainian children in particular, President Biden observed in his remarks in Poland shortly after the announcement that Russia has “stolen Ukrainian children in an attempt to steal Ukraine’s future.”

Unfortunately, while the commission of these acts has been a central component of Russia’s war on Ukraine and its people, U.S. law currently does not allow for the prosecution of crimes against humanity, as such, even though they are arguably one of the gravest crimes known to humankind.  This is notwithstanding that crimes against humanity have been a part of the international criminal law canon since Nuremberg and, historically, the United States has regularly advanced accountability for this crime in other fora.

The legal concept of crimes against humanity traces its origins to the Second World War and the Charter of the International Military Tribunal at Nuremberg.  Some crimes by the Nazis—such as the mass deportation or the imprisonment and enslavement of Germany’s own citizens and the citizens of its allies in the war—could not be prosecuted under the traditional formulation of war crimes.  To capture the full scope of the horrors suffered by civilians, including the Holocaust, crimes against humanity were included in the Nuremberg Charter.  Senior Nazi military and other government officials were prosecuted for this crime, including those who helped to forcibly deport thousands of civilians.

The concept of crimes against humanity encompasses a constellation of acts made criminal under international law when they are 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 within an armed conflict but can also take place in times of peace, such as the crimes against humanity that PRC government authorities continue to inflict on Uyghurs, who are predominantly Muslim, and members of other ethnic and religious minority groups in Xinjiang.

Since Nuremberg, the statutes of modern international criminal tribunals, which the United States was instrumental in establishing, all contain provisions allowing for the prosecution of crimes against humanity. Over 100 countries, including almost every NATO ally, already have laws criminalizing crimes against humanity, and the trend lines suggest these numbers are increasing. In this regard, the United States is out of step with our allies and much of the globe.  In the past two years alone, Germany, France, the United Kingdom, Sweden, Austria, Hungary, Finland, Switzerland, and Argentina have held trials in their national courts for crimes against humanity committed by ISIS members in Iraq and Syria, as well as by perpetrators in The Gambia and elsewhere.

The absence of a crimes against humanity statute is significant because it means that a foreign national responsible for, as an example, a massacre of civilians abroad, who makes their way to the United States, could likely not be criminally prosecuted for those acts in U.S. courts unless the same acts constituted a war crime or another crime under U.S. federal law.

Moreover, because crimes against humanity are, by definition, part of a widespread or systematic attack directed against any civilian population, and the acts comprising an attack must be committed pursuant to or in furtherance of a state or organizational policy to commit such an attack, prosecutions of these crimes are usually aimed at bringing to account individuals who commit atrocities that are in accordance with a campaign that is orchestrated and coordinated by a State or an organization. At base, most crimes against humanity implicate the conduct of senior leaders, since such figures are often instrumental in the design and execution of the state or organizational policy through which mass atrocities are committed. This is part of what differentiates crimes against humanity from ordinary crimes, like murder and rape. As a result, a U.S. law criminalizing crimes against humanity would have the benefit of making punishable any such crimes committed pursuant to the policies of a State—such as Russia—or non-state actors—such as al Qa’ida, the Lord’s Resistance Army, or ISIS.

From a diplomatic perspective, the fact that the United States lacks a crimes against humanity statute, in contrast to our closest allies and partners, weakens our ability to lead on international criminal justice and undermines our commitment to supporting justice and accountability for atrocity crimes.   This Committee has the historic opportunity to change that, as it did with The Justice for Victims of War Crimes Act.  And in so doing, to reaffirm and return the U.S. leadership in international criminal accountability.

U.S. Department of State

The Lessons of 1989: Freedom and Our Future