MODERATOR: Good afternoon from the State Department’s Brussels Media Hub. I would like to welcome everyone joining us for today’s virtual press briefing. We are very honored to be joined by Ambassador Beth Van Schaack, the Ambassador-at-Large for Global Criminal Justice.
A quick reminder: today’s briefing is on the record. And with that, let’s get started. Ambassador Van Schaack, I’ll turn it over to you for opening remarks.
AMBASSADOR VAN SCHAACK: Wonderful. Thank you so much, and I guess good afternoon to everyone over there. It’s an early morning here, but I’m very pleased to be joining you. We’ve obviously seen some very significant developments over the weekend, and we’re monitoring that closely. In my world, which is, of course, the justice and accountability space, things continue apace. I am essentially tracking five pathways to justice that are all now pretty much fully operational and moving forward.
The first, of course, is the International Criminal Court. Since we last spoke with this group, we’ve seen the prosecutor make his first move, successfully achieving two arrest warrants for very senior figures within Russia, focused on the deportation of children from Ukraine and temporarily controlled or occupied areas into Russia, often to very far-flung places, and subjecting those children to adoption or other situations notwithstanding that they have loved ones, guardians, families who want them back.
Number two, of course, is – are cases within the Ukrainian national courts. The Atrocity Crimes Advisory Group, which is a joint initiative of the United States, the United Kingdom, and the European Union, is fully operational on the ground. We have deployed a number of experts to work side by side with their Ukrainian counterparts to help sift through the now tens of thousands of recorded potential war crimes and other atrocities.
We also have the European prosecutorial and investigative authorities fully activated. A joint investigative team has been formed. The European are – the Europeans are opening investigations for the situation when individual perpetrators may end up within their borders or within their jurisdictional reach. Those investigations are happening and they’re being very much coordinated under the umbrella of Eurojust, which is this integration measure for matters.
There, the third – sorry, the fourth line of effort is this imagined and proposed tribunal, special tribunal for the crime of aggression. We have now an International Centre for the Prosecution of Aggression that has been stood up in The Hague. That will be serving as a sort of proto-prosecutorial office to begin to do the investigative work necessary to lay the foundation for eventual prosecutions of specific individuals – leaders within the Russian system – who planned, executed Russia’s war of aggression in Ukraine.
And then finally, the fifth line of effort is unique here; it’s cases happening that might happen in United States courts. The Attorney General has stood up a War Crimes Accountability Team – War CAT it’s called. A very senior figure, former Nazi hunter, has been appointed as counselor to the Attorney General, and we are conducting our own potential investigations of cases that might have some kind of a U.S. nexus. And we are benefiting now from new authorities that Congress gave us at the end of last year that have expanded our ability to prosecute war crimes in the United States even though maybe, potentially, neither the perpetrator nor the victim is a U.S. person. So we now have full present-in jurisdiction. We do need to have the perpetrator present in the United States, but we can start initiating investigations that may fall within the new legislative authorities.
So with that, I’m very pleased to take your questions about where things stand on the justice and accountability front, and I look forward to our conversation.
MODERATOR: Thanks very much for those opening remarks, Ambassador. Let’s go first to a submitted question from Dmytro Shkurko from the National News Agency of Ukraine. He has a two-part question noting that, “The ICC should play a decisive role in ensuring accountability for war crimes and atrocities in Ukraine, but already now the number of reported cases is counting in the dozens and possibly the thousands. We know such judgment with ICC is a lengthy prosses. So how long should these proceedings last, and what additional jurisdictions could be involved or processes to speed up the proceedings?”
AMBASSADOR VAN SCHAACK: Great. Thank you. Very, very good questions. I often think of the ICC as being part of a larger ecosystem of international justice, and national courts are very important elements within that ecosystem. So the ICC will never be able to take all cases that might arise from a particular situation that they’re looking at. And of course the ICC has jurisdiction because more than 40 states referred the matter of Ukraine to the ICC prosecutor. This is an unprecedented collective referral. We also saw a collective referral for the situation in Venezuela, but not nearly the number of states joined that referral as joined this particular Ukraine referral. So clearly a high degree of consensus about the important role that the ICC plays in ensuring accountability for the war crimes, crimes against humanity, and other atrocities taking place in Ukraine.
But it cannot do this alone. So we are seeing a very interesting division of labor between the prosecutor general in Ukraine, who really is at the front lines of justice and will be undertaking the bulk of investigations and prosecutions here, because evidence, events, survivors are on Ukrainian territory and the perpetrators we know are on Ukrainian territory, and those cases are proceeding in Ukrainian courts under the leadership of the prosecutor general; but there is still an important role for the ICC to take, and the prosecutor here has moved forward with these two very senior requests for arrest warrants that were granted by the court. Obviously, President Putin himself and then the “children’s rights” – and I’m doing air quotes here on my computer – “children’s rights commissioner.”
What’s interesting about these two arrest warrants is that much of the evidence that might be introduced into court comes from the mouths of the defendants themselves, because they have essentially admitted and praised the system of taking Ukrainian children, forcibly bringing them across an international border, and then subjecting them to adoptions and other custodial arrangements without the consent of their parents or guardians or loved ones. And this is the crime of international deportation or the forced transfer of the civilian population. These are grave breaches of the Geneva Conventions, which can be prosecuted by the International Criminal Court but also by any state that has ratified the 1949 Geneva Conventions, which were, of course, drafted after World War II.
AMBASSADOR VAN SCHAACK: Oh, sorry, and on your question about length.
AMBASSADOR VAN SCHAACK: Sorry, just to make sure I respond to that element of the question. Indeed, the ICC has in the past taken quite a bit of time to resolve some cases. The current prosecutor, who is the third prosecutor now, has made it a real goal of his tenure to speed up the processes. In the early days, the ICC was very much a new institution and every question presented was a new issue that had to be fully resolved. The court now has 20 years of practice under its belt that it can rely upon, and the prosecutor is very committed to making these cases and investigations much more efficient so that justice is real to the survivors and that it’s happening in real time.
MODERATOR: Thanks, Ambassador, for those answers. I’d like to go to a live question now from Alex Raufoglu. Alex, your microphone should be open.
QUESTION: Yes, John, you might be able to hear me now.
MODERATOR: Yes, we hear you.
AMBASSADOR VAN SCHAACK: Yes.
QUESTION: Okay, thanks so much. Ambassador, good morning. Thanks so much for your time.
AMBASSADOR VAN SCHAACK: Good morning.
QUESTION: You started off with the weekend events, so I can’t help but asking about it. Wagner’s leader is publicly questioning the basis of the invasion. How much of weight does it have when it comes to justice and accountability? Are you taking that into consideration?
And my second question: I’m just wondering what have you been observing since the ICC named the names? They named Putin as a wanted war criminal. Have you seen – was there any behavior change, if you have been noticing? Are they doubling down or slowing down their crimes?
Thank you so much.
AMBASSADOR VAN SCHAACK: Yeah, thank you. I do think it’s quite notable that Prigozhin said very openly that this war was based upon false pretenses and that Ukraine and of course NATO had no intention of attacking Russia, and that this is very much a war of Russia’s own making. This is in contradiction of the official line and also, of course, we know of the actual truth of the matter. And this is something that Russians don’t normally hear. They have been fed a very steady diet of propaganda, misinformation, and disinformation, and now hearing this from Prigozhin himself I hope will encourage Russians to seek out the truth of the matter. He directly challenged Putin’s decision-making. And this is very much a step out of the ordinary, we know, when it comes to Putin and the degree of control he tries to exercise around the messaging and how he is portrayed publicly, both globally and also with respect to his own people.
In terms of the ICC and the impact of these two arrest warrants, it is quite impactful. I mean, this is a sitting head of state being accused of committing grave breaches of the Geneva Conventions – not just involving a civilian population, but involving children. This obviously invokes quite a bit of empathy around the world. There has been some concern, I think, with some states particularly in what we can call the Global South, although that’s not a great term necessarily, but that there is overweening attention maybe to the situation in Ukraine, that it’s a European problem. But then when I think the facts emerge about what’s happening to thousands, potentially, of children, that really generates a lot of sympathy around the world and I think there’s a real recognition that atrocities are happening within the situation in Ukraine and it deserves the full attention of the international community, and so a lot of support for the prosecutor moving forward on this particular charge of abducting and forcing children into Russia. And we’ve also heard stories about efforts to – the de-Ukrainization of those children, to make them – force them to be speaking Russian, to potentially be giving them Russian citizenship, boys being subjected to potentially military training – all of this is really quite troubling.
Also, of course now, it’s much more difficult for Putin to travel anywhere because there’s now an arrest warrant against him. Any ICC member states are under certain cooperation duties towards the court, and so he could be amenable to arrest and transfer to The Hague for prosecution. So his world is shrinking quite a bit around him.
Unfortunately, the circumstances are such that, so long as he remains within Russia, he will be out of reach of many of these justice processes. But we’ve seen in the past that many former – many individuals who’ve been accused of war crimes, I think never thought they would see the inside of a courtroom, and eventually they did because circumstances changed on the ground. So Slobodan Milošević, Augusto Pinochet, Hissène Habré of Chad – all of these men, I think, probably never thought they would see the inside of a courtroom and then ultimately did.
MODERATOR: Thank you, ma’am. We’ll go to another submitted question, this time from John O’Donnell from Reuters, based in Germany. Is there U.S. political willingness to penalize international companies based in Europe for sanctions and transgressions or would this risk endangering the global Western alliance against Russia over its invasion of Ukraine?
AMBASSADOR VAN SCHAACK: Yeah, thanks for that question. I don’t cover sanctions directly. We have a sanctions coordinator who does, but what I can say and what I have been tracking is that the United States is deploying a whole range of different types of sanctions against individuals and entities that are complicit in or helping to support the Putin regime in terms of being able to wage this war of aggression against Ukraine and constantly looking for new targets for those sanctions. And this would, of course, include not just individuals but also entities that are facilitating the war of aggression and the war crimes and crimes against humanity that have flowed from it.
So at any given moment, we are scanning the circumstances in order to determine whether or not there may be new sanctions that could be deployed. And we’re doing this, of course, always with our partners in Europe, who are also increasingly united and coordinated around their own sanctions with respect to individuals and entities that are participating in this war of aggression.
MODERATOR: Thank you, Ambassador. Another submitted question now from Anton Lyzenkov from Spektr.Press covering Latvia, Russia, and Ukraine. He states: There has not been a single international Interpol notice to our knowledge that was used by the International Criminal Tribunals or the ICC to search for Russian people – members of the Russian military for war crimes and crimes against humanity as a result of investigations. Why is this?
AMBASSADOR VAN SCHAACK: Yeah, it’s a great question, Anton. I’m not entirely sure. The ICC has the ability to refer its arrest warrants to Interpol and has done that with respect to previous defendants that have appeared before the court or that have been sought by the court. And any individual state that also has an indictment or an arrest warrant against an individual that is a member of Interpol can do that as well. I think part of the issue is that we know that Putin and Lvova-Belova are unlikely to travel.
And so the Interpol Red Notices are most useful when you have a fugitive on the run. And the goal is to bring attention to the fact that that person is subject to an arrest warrant and to be – should be arrested and then extradited or transferred to the court with jurisdiction, if they’re ever found on the territory of one of the Interpol member states. Because we know where Putin is, and he’s not on the move at the present, it may be that it feels unnecessary to seek an Interpol Red Notice at this time. But I guess I would refer you to the ICC and to national prosecutorial authorities to expand upon that question, but I’ll also look into it as well, because I’m a little curious myself.
MODERATOR: Thank you, Ambassador. Next, we have a somewhat related question from Momchil Indjov from the Bulgarian media. He asks: Your Excellency, will the U.S. put pressure on South Africa to arrest Russian President Vladimir Putin in case he joins the BRICS Summit later this year? And will the U.S. sanction South Africa if it refuses to do so?”
AMBASSADOR VAN SCHAACK: So this is obviously a decision for South Africa to make, given its international obligations and its own constitutional framework. As a ICC state party member, it has certain cooperation duties under the Rome Statute. It has already had a difficult situation when Omar al-Bashir, who was then head of state of the Sudan, traveled to South Africa. The South Africa legal system quickly mobilized.
And if you recall, Omar al-Bashir had to slink out in the middle of the night in a dark airfield because there were some real concerns that he was going to be taken into custody by the South African legal authority, which – they have a strong and independent court system there, and a very vibrant civil society that’s very active in the international justice space. So no doubt President Putin is aware of this history and has heard the somewhat contradictory reports coming out of South Africa.
South Africa is obviously trying to figure out how to deal with this and is considering a number of different measures, including potentially holding the BRICS conference virtually, moving the BRICS conference to a nonICC state party – I’ve heard both China and Mozambique, neighboring Mozambique, being mentioned – and also whether or not there might be other ways to resolve this in terms of who the delegation would be composed of.
So Putin is quite reckless we know with state resources, with his own troops, his own personnel, but he’s not reckless with his own skin. So I can imagine his calculus, and even if there’s a 10 or 15 percent change that some sort of legal process would be initiated against him, some independent judge, independent prosecutor would move forward against him within South Africa, given South Africa’s legal obligations and their own domestic legal framework and the precedent set by the al-Bashir case, I could see him really thinking twice before trying to visit personally that event.
MODERATOR: Thank you, Ambassador. Our next question comes from Denis Levin from Novaya Gazeta in Europe, also covering Latvia, Russia, and Germany. He asks, “What specific enforcement tools does the ICC and the United States have to make the already existing and potential court’s decisions come true?” He also asks, “Should new legal instruments be brought into play or should we rely on political and diplomatic pressure?”
AMBASSADOR VAN SCHAACK: Yeah, thank you. There is no international police force, and so the ICC very much relies upon state cooperation in order to enforce its edicts, and this would include the arrest warrants, but also judgements, reparations, et cetera, that might be issued against particular individuals. So at present, we are dependent upon states cooperating with the court in terms of having it become – be successful with respect to these arrest warrants. And as I mentioned, so long as Putin remains within Russia, it will be very difficult to gain custody over him.
The ICC cannot proceed in absentia. It can, however, launch a process whereby charges against an individual could be confirmed. And this could invite the testimony of survivors, the presentation of evidence. So it would be sort of a truth-telling exercise that would enable the prosecutor to reveal not only (inaudible).
MODERATOR: Ambassador, we lost you there.
AMBASSADOR VAN SCHAACK: (Inaudible) against the two defendants and have those charges then be confirmed and reinforced.
Oh, sorry. Where did I drop off?
MODERATOR: Just about 10 seconds, so if you could just back up just a little bit to the middle of your previous answer.
AMBASSADOR VAN SCHAACK: Sure.
AMBASSADOR VAN SCHAACK: Sure. I was just describing this procedure that the court could utilize, if it chose to, to hold a confirmation of charges hearing. This would allow the court to hear testimony from victims and survivors, would allow the prosecutor to present the evidence that he has at hand, and would also be able to put forward the facts for the Ukrainian people, for the global community, and for the court to show the evidence that he has against Putin, with respect to these particular charges. So it remains to be seen whether the court would hold such a hearing, but it cannot proceed in absentia. And so it really is dependent upon getting custody over Putin.
This will, of course, require – any of these justice processes moving forward, not just against Putin but against more low-level individuals up and down the chain of command within Russia, both on the military side and on the political side – will require a lot of international cooperation. And it’s been heartening to see how coordinated the Europeans have been, working under the Eurojust framework, forming a joint investigative team with Ukraine, with the International Criminal Court, creating a database in order to share information, standing up the International Center for the Prosecution of the Crime of Aggression to be able to focus specifically on that crime, and also now participating in negotiations to build a new institution.
And so this gets to the final question that Denis asked, which is do we need new instruments. We do not have, at present, a dedicated institution that can focus exclusively on the crime of aggression, which the Ukrainians consider the initiator crime, right, the crime that launched all the other war crimes, crimes against humanity, and other atrocities that have been committed. If Russia had not chosen to invade its sovereign neighbor, we would not see the terrible war crimes happening on the ground. And so it’s quite important for Ukraine to see this crime prosecuted.
Negotiations are happening in what’s called a core group. The next meeting will be in Warsaw at the end of this month. States across the globe are participating and trying to think about the best way to build this new institution. But in the meanwhile, this international center in The Hague is starting to do the initial investigative work, thinking about not only which acts would be charged as acts of aggression, but which individuals were in leadership positions – beyond, of course, the obvious ones – to plan, execute, and ultimately wage this war of aggression in Ukraine.
MODERATOR: Thank you, ma’am. This – a related question, actually, from Stephanie van den Berg, who’s reporting for Reuters out of The Hague. She asks, “We understand that the U.S. supports a hybrid tribunal for the crimes of aggression for Ukraine. President Zelenskyy has said in The Hague a few weeks ago that he did not want a hybrid court. Would the United States also support a UN General Assembly resolution that would set up a UN-backed international tribunal?”
AMBASSADOR VAN SCHAACK: Yeah. Hi, Steph. Thanks for the question. I was just listening to Asymmetrical Haircuts yesterday while I was driving to a haircut, so appropriately enough. Yeah, terrific question. Indeed, we do favor an internationalized tribunal that would be deeply embedded within the Ukrainian national system but that would benefit from significant international assistance across a range of measures, including secondments of personnel, funding, sharing of information, technical and capacity-building support, diplomatic support multilaterally.
That is the model that we favor, and we’re very actively engaged in these core group negotiations in order to try and convey why we think that is the strongest institution that could be built. It has the most firm legal basis, it has the ability to garner broad, cross-regional support, and it has the ability to be set up quickly, to be nimble, to be able to be established immediately because there’s an existing legal framework. It could be stood up outside of The Hague and then eventually – outside of Kyiv, sorry, and then eventually transferred back into the country when the security conditions allow. And it also has the benefit of continuing to build and support the Ukrainian national legal system, which is a real priority of the prosecutor general.
We have both legal and practical concerns about the alternative model that is being considered, which would be a General Assembly-backed model. One concern is that the General Assembly, under the UN Charter system, has the ability only to make recommendations; it cannot take coercive – it does not have coercive powers, and it cannot take coercive measures. So it would be dependent upon voluntary contributions and cooperation of states. And so it’s hard to square that with a criminal process that might be going forward against an individual whose state has not consented to this, and an individual who will be entitled to challenge the grounds on which he might be taken into custody. And could the General Assembly take someone into custody, essentially, and impose a sentence on that person?
Putting to the side these open legal questions, there is, of course, the practical concern about being able to garner sufficient votes within the General Assembly in order to launch a new, unprecedented model without broad, cross-regional support. So if you look at the voting patterns within the General Assembly, when the General Assembly is asked to condemn Russia’s actions, and to call for justice, and to appear in support of the Ukrainian people as they defend themselves, efforts of food security, and all of the broad reverberations of this war, you see very high votes, 140-plus.
The minute the General Assembly has been asked to do something concrete, such as even kick Russia off the Human Rights Council, there is a precipitous drop in the number of affirmative votes. Likewise, with respect to the establishment of the Register of Claims, that only garnered about 90 votes. And so there is a real concern that, if the General Assembly were asked to create and fund a new justice institution, the votes might fall off even further, and we may end up with a situation in which the number of abstentions and no votes exceed the number of yes votes. And that does not convey the sort of unity that I think we want to see around the imperative of accountability here.
And so, instead, what we have proposed would be an internationalized tribunal, grounded within the Ukrainian system, and then seek a General Assembly resolution essentially blessing this exercise of internationalized justice, and urging the various states of the world to find ways to cooperate with this effort that’s happening. And it could be happening, as I mentioned, in The Hague.
So many international elements to it – the gravitas that I think Ukraine wants, the recognition that this is an international effort, but nonetheless grounded in their own domestic system.
MODERATOR: Thank you, Ambassador. I think we have time for one last question. We have one more submitted from Giorgia Scaturro, who asks, “Where are we with the procedures in the four areas of operations that you have listed to make Russia accountable for war crimes?”
AMBASSADOR VAN SCHAACK: Yeah, thank you, Giorgia. It’s a great question. Everything is in play and underway. The prosecutor general, of course, has issued a number of indictments and has held a number of trials. In Ukraine it is possible to hold in absentia trials, and so some of these trials have been in absentia; others have been against individuals who have fallen into Ukrainian custody. And so we have seen those have been reported. A number of different war crimes have been charged, including conflict-related sexual violence; pillage; summary execution of civilians; mistreatment of prisoners of war and others within custody. Those cases are moving forward.
The European courts – no European court has yet issued an indictment or arrest warrant for any Russians, but we know that those investigations are underway. And so it remains to be seen whether some of those will move forward.
The ICC, of course, has the two arrest warrants, but my understanding is that that investigation is continuing. There is actually quite a serious – quite a senior American official, a former judge advocate general, Brenda Hollis, who’s worked in a number of the different international and hybrid tribunals around the world, including the Cambodia Tribunal, the Yugoslavia Tribunal, the Special Court for Sierra Leone. She is at the head of the Russian investigation, and so I imagine that we will see additional arrest warrants and charges being considered with respect to, potentially, attacks on elements of the civilian infrastructure, other attacks that might be – and harm that might be caused to civilians and other protected persons. All of these various charges could also be brought by the ICC, including, potentially, crimes against humanity, which the ICC can do. Ukraine has no crimes-against-humanity statute, and so if those charges are going to be brought, it will be incumbent upon either the ICC prosecutor bringing those charges or European courts that have incorporated the prohibition of crimes against humanity into their domestic codes.
And then, in the United States, as I mentioned, we have a dedicated war crimes accountability team that is looking at cases that might have some kind of a U.S. nexus, and be able to proceed here, in U.S. courts, under the new legal authorities that Congress has provided.
MODERATOR: Thank you, Ambassador. Unfortunately, that’s all the time we have for today. Thanks to all our (inaudible) questions, and thank you again, Ambassador Van Schaack, for taking the time to join us today. Shortly —
AMBASSADOR VAN SCHAACK: My pleasure, and thank you very much for the very rich questions.
MODERATOR: Thank you, ma’am.
Shortly we will send the audio recording of the briefing to all the participating journalists and provide a transcript as soon as it is available. We’d also love to hear your feedback, and you can always reach us at TheBrusselsHub – one word – @state.gov. Thanks again for your participation, and we hope you can join us again for another press briefing in the future. This ends today’s briefing.
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