Interview with US Ambassador-at-Large for Global Criminal Justice, Beth Van Schaack

Monday 21 November 2022

Just weeks after Russia’s invasion of Ukraine, Beth Van Schaack was appointed as US Ambassador-at-Large for Global Criminal Justice. In this in-depth interview with IBA Director of Content, James Lewis, she discusses accountability for those responsible for the crimes committed in Ukraine, and the importance of going to the top of the chain of command.

James Lewis (JL): Given your appointment came shortly after Russia’s invasion of Ukraine, to what degree is accountability for Russia’s crimes in Ukraine a key pillar of President Biden’s foreign policy?

Beth Van Schaack (BVS): There are two lanes in which we are predominantly offering support to Ukraine. In the humanitarian lane, we are doing whatever we can to strengthen Ukraine's hand on the battlefield. Then we have the justice lane where my office steps in to advise the Secretary of State, the interagency, other senior US government leaders and even the multilateral sphere to find ways to enhance the ability to have accountability for the many crimes that are being committed in Ukraine.

JL: Can you give us a sense of the atrocities that you're seeing?

BVS: There are many categories of crimes we're seeing. On the war crimes front, there are aerial bombardments that seem to be either deliberately targeting civilian infrastructure or, at a minimum, using disproportionate or indiscriminate force.

In areas that have been under Russian control and have then been liberated, we are seeing interpersonal violence where individuals are being shot execution-style with their hands tied. There are credible accounts of sexual violence from women and girls’, and men and boys’, bodies showing signs of torture.

We've also been recording the use of filtration operations, whereby individuals are assessed as to whether they can be trusted – whether they support the Russian invasion or might be a source of resistance. They're questioned, their phones are confiscated, their tattoos are checked for indicia of supporting the independence of Ukraine. If they pass filtration, they might be allowed to resettle in Russian-controlled areas of Ukraine. If they fail, they may be deported or subjected to some form of lifelong, arbitrary detention.

JL: You've described this as a Nuremberg moment – does that apply purely to Russia's invasion of Ukraine, or does it apply to other atrocity situations such as Yemen and Syria?

BVS: I use that term in the sense of having a major sovereign invading another sovereign with a goal of annexation at a minimum, and maybe worse, as we've seen, certainly by using violence to try and eliminate the notion of an independent Ukraine.

It’s also a Nuremberg moment because the international community has never been more united around the imperative of justice, looking to build new institutions and to strengthen existing institutions, to deliver justice through both individual criminal responsibility and state responsibility.

In that regard, just as at Nuremberg, the Allies came together to adjudicate responsibility for national socialism, for the Holocaust, for the invasion of states within Europe and in the Pacific theatre.

JL: Russia was a key player in liberating Europe and creating international frameworks for legal accountability after the Second World War. How significant is it that Russia is now turning its back on all of that?

BVS: It's incredibly significant. Many of the concepts in that tradition had their origins in the Soviet Union, from academics and jurists that were participating and influencing that process. They’ve now turned their back on that proud legacy and are engaging in exactly the kind of behaviour that the Nazis were behaving in – attacks on civilians, the invasion of sovereign territory, efforts at annexation, filtration and so on.

JL: There are various means of bringing accountability, but how important is it to go to the top of the Russian chain of command and hold Putin to account?

BVS: Given that many of these low-level rank and file individuals are conscripted, it’s very important. They don't know what they're doing or where they're going, and they haven't been trained properly. The architects of this are at the very top and so any prosecutorial approach must include efforts that go up the chain of command. We have legal doctrines that enable prosecutors and investigators to do that.

The doctrine of command responsibility provides that a superior who has subordinates who are committing abuses that the superior knew, or should have known, were happening is under an obligation to take appropriate and necessary measures to either prevent them in advance or to prosecute them after the fact. We can also hold superiors responsible directly for ordering abuses and so untangling how the chain of command operated will be a key challenge for prosecutors, both at the International Criminal Court (ICC) and in domestic courts that are asserting jurisdiction.

JL: Is there a court with the jurisdiction to do this?

BVS: The ICC can use superior responsibility through Article 28 [of the Rome Statute]. Domestically, my understanding of Ukrainian law is that doctrine [of command responsibility] is not fully instantiated in the law, but there's some draft legislation that might improve the ability to use that precedent to work up the chain of command.

There may be third states around Europe that have incorporated command responsibility, plus all the international crimes that might be chargeable under their own domestic codes. So as Russian perpetrators begin to travel, as they inevitably will post-conflict, there will be prosecutors at the ready with indictments in hand because they are now increasingly interlinked and interoperable, sharing information through Eurojust and other multilateral means. There’s no statute of limitations for these international crimes.

JL: The US does have war crimes legislation, the War Crimes Act of 1996, but you yourself have described it as a dead letter. Are there present efforts to evolve this legislation?

BVS: At the time it was drafted, a decision was made, generally at the behest of the Department of Justice as it didn't want to get itself entangled in international conflicts, to limit jurisdiction to those situations where either the perpetrator or the victim is an American national. A war crime committed by a Russian national against a Ukrainian national would not fall within US jurisdiction, for example, but that runs counter to what the Geneva Conventions require in terms of instantiating the idea of universal jurisdiction.

JL: You personally must be quite uncomfortable with that.

BVS: I would like to see us have much stronger authorities here.

At the time the War Crimes Act was being enacted, both the Department of Defense and the Department of State testified before Congress that it met the requirements of the Geneva Conventions. There are now efforts afoot to close that gap and it's the Department of Justice that is demanding this because they want to play a part in the accountability matrix. They see their European counterparts being able to exercise national jurisdiction, and there may be circumstances in which there are Russian perpetrators here.

We also know that there are Americans in Ukraine – in the battlespace, dual nationals and American victims – so there may be a small subset of cases that can be brought under our national laws. The Attorney-General has created a special team on war crimes accountability so I know that they are looking at whether there might be cases that fall within US jurisdiction.

JL: Are you optimistic that there'll be a transformation quickly enough?

BVS: I am. We're seeing a lot of efforts within Congress and there is interest on both sides of the aisle to find solutions.

International Criminal Court. SARATSTOCK/AdobeStock.com

One solution would be to extend present jurisdiction to war crimes. We have statutes that criminalise genocide, the use of child soldiers, torture, trafficking and terrorism offences. All of them allow for US prosecutors to assert jurisdiction if the defendant is present in, or found in, the US, so it would be a quick technical fix to make the same jurisdictional regime apply to our War Crimes Act.

The other gap is our lack of a crimes against humanity statute. This is a different crime that allows for the prosecution of a whole range of violent acts when they're committed in the context of a widespread or systematic attack against a civilian population. That can be useful outside of armed conflict situations where you don't have the predicate to charge war crimes. Xinjiang, for example, and the crimes against humanity being committed against the Uighur community. Sexual violence, torture of individuals, mass killings – all of those would fall under crimes against humanity and could not be charged as war crimes. So that's another set of proposals that are now making their way around Capitol Hill in Washington.

JL: The ICC’s Chief Prosecutor has opened an investigation into Ukraine. How realistic is it to think that the ICC could get a prosecution against a head of state that's a permanent member of the Security Council?

BVS: It's a question of custody. However, the ICC is a part of an increasingly interlinked system of international justice and is working in collaboration with the Prosecutor General in Ukraine to ‘divvy up’ the cases under which legal framework makes the most sense to pursue.

We know that the Office of the Prosecutor is aggressively working in this matter. He has received assistance from ICC States Parties and even some non-State Parties to assist with this, including secondments, technical assistance and information sharing. He's opening a field office in Kyiv and has been to Ukraine with teams of investigators to work with their counterparts, sharing information, techniques and strategies.

JL: The Trump administration hit staff of the ICC with travel bans and financial sanctions. President Biden has lifted those measures. How significant is that and how far do you think it can go?

BVS: It's incredibly significant, and much of it happened prior to my appointment – it was a full interagency decision that the way of the Trump administration was absolutely the wrong way to go. This engagement is a much more valuable approach, particularly if we're in a defensive posture again in the future in some regard, but also because these are values that we share.

We have shared these values since the Second World War era, after which some of the Allies would have been content to summarily execute some of the key Nazi leaders. It was the Americans who advocated due process and an international war crimes tribunal.

These are values shared on a bipartisan basis. The Trump era revealed that taking that aggressive approach doesn't work, and our allies didn't appreciate it. We were increasingly isolated in that position and so I'm hopeful that, even if there's a change of administrations, it will have been realised that that is not the way to go.

I hope it has been recognised that the Court has an important role to play, not only in Ukraine, but in other countries around the world where the US is attempting to promote justice through its bilateral relationship and development work. The work of the Court is entirely consistent with our approach to those atrocities’ situations.

JL: Speaking of those situations, you've written a book called Imagining Justice for Syria. Perhaps you can give us a sense of what that would look like in reality.

BVS: I started as deputy in my then-office around the time that the Syrian conflict was getting underway. I worked tirelessly on several initiatives to try and find pathways to justice there and it's been very difficult. The few bright spots that we've seen have been cases under universal jurisdiction and other forms of extraterritorial jurisdiction in Europe – the German cases are a great example of that.

I also discuss the use of technology because the conflict emerged as smartphone penetration was becoming near universal in many parts of the world, including within Syria, and so everyone was a documentarian with their cell phone. How to authenticate that and use it to best purpose in criminal trials was a conversation that was just starting to happen.

Likewise in Ukraine, the International Court of Justice (ICJ) has become an engine for looking at international crimes through state responsibility, as states have joined international treaties. Canada, the Netherlands and other states are pursuing a matter against Syria under the Convention Against Torture in the ICJ. If it moves forward, the ICC or the ICJ will be able to adjudicate the industrial grade torture system that Bashar al-Assad erected within Syria.

JL: And is there a read across to Yemen and other conflict situations or are they all unique?

BVS: Each innovation in justice is then available to be utilised and adapted to other contexts. We've seen this with transitional justice realm, international justice and domestic prosecutions. As we build this consistent body of precedent, prosecutors become increasingly confident in these cases. Diplomats also gain confidence about how to build an international assistance system that will be efficient, effective and ultimately fair to defendants. Each one of these is building an edifice of justice that then can be invoked in other contexts.

JL: You sound remarkably optimistic that there's a moment where we can really make progress in all these areas.

BVS: Yes, I am optimistic. The rising tide around justice for Ukraine is raising a lot of other points, but I want the international community not to remain singularly focused on Ukraine because there are so many other areas around the world that are crying out for justice – Yemen, Syria, all of these places. I hear this as I travel the world because I'm the Ambassador-at-Large for Global Criminal Justice.

We hear some grumbling that this attention on Ukraine is at the expense of other areas. I hope that as the international community continues to invest in justice in Ukraine, they also remain cognisant of these other areas of the world that are crying out for justice – The Gambia, for example, which has recently completed a very successful truth commission process. Their truth commission released a whole set of valuable recommendations and so now the challenge is implementation. With the pandemic over, it is time to revisit and re-energise that effort so that they can have a domestic process that focuses on crimes committed in the previous regime.

JL: Is there scope for prevention as well through this, through mechanisms like the responsibility to protect?

BVS: Secretary Clinton specifically broadened the remit of our office to focus on the whole range of transitional justice mechanisms that states can use as they emerge from situations of armed conflict or repression. In this regard, we work in partnership with our Human Rights Bureau, the US Agency for International Development and our Conflict and Stabilisation Operations Office, which acts as a secretariat for much of the preventative work further upstream. We're synched into that system, a whole of government system, focused upon the imperative of prevention.

This is an abridged version of the interview. It can be viewed in full here