In the year since Russia invaded Ukraine, Ukrainian authorities say they have documented more than 66,000 war crimes committed by Russian forces. As early as last March, the United States had determined that Russia had committed war crimes in Ukraine. But in a speech at the Munich Security Conference on February 18, Vice President Kamala Harris said the U.S. has now concluded that Russia has also committed crimes against humanity in Ukraine. Russia has denied targeting civilians.
In an interview with VOA’s Ukrainian Service, Beth Van Schaack, State Department ambassador-at-large for global criminal justice, discusses the latest U.S. determination and says it is important to lay the groundwork for Russian accountability.
This interview has been edited for brevity and clarity.
VOA: On February 18, Vice President Kamala Harris announced that the United States has determined that Russia committed crimes against humanity in Ukraine. How does this change U.S. policy toward Russia and toward prosecuting those crimes?
Van Schaack: This determination is important because it signals that we have looked at all the evidence — open source, classified, human rights reports — and determined that Russia is in fact launching a widespread and systematic attack against the Ukrainian civilian. And so, this will be in part to point attention to the egregiousness of Russia’s actions, but also to help lay the groundwork for accountability in the future. It’s extremely important to call things what they are. And I think that’s what Vice President Harris was doing at the Munich Security Conference.
VOA: The U.S. has formally determined that Russia is guilty of execution-style killings, torture, rape and forced deportations. Secretary Blinken noted that ‘Putin has been trying from Day One to erase Ukraine’s identity.’ Does not that correspond to the definition of genocide offered by the U.N. Convention?
Van Schaack: So, those are the four crimes against humanity that this determination focused on. Now, that finding does not preclude a finding of additional crimes against humanity or eventually of genocide, as well.
VOA: Ukrainian and international law experts accuse Russia of creating a system of genocide that leads straight to Putin. A year into the full-scale war, would you say that these war crimes were, in fact, one of main methods of the war conducted by Russia in Ukraine?
Van Schaack: Yes. This is a war of aggression that has been committed by Russia, but it’s been a war of aggression that has been committed through war crimes literally everywhere that Russia’s forces have been deployed. These began as attacks that appear to be deliberate or indiscriminate or disproportionate against elements of the civilian infrastructure. And then, once investigators, journalists and advocates could get on the ground and could visit those areas when Russian troops withdrew or retreated, then they saw violence of a different order. This was interpersonal violence, acts of torture, sexual violence. The Conflict Observatory at Yale University recently released a new report. They could verify that 6,000 children have been taken from their families, from their guardians, from Ukraine and have been moved into Russia forcibly, or in some cases, have been held in Russia even after they’d been sent there. And they’re not in touch with their families and not being allowed to be in touch with their families. This is also potentially a third indicia of genocide.
VOA: Will the U.S. use its leverage with the Red Cross or the United Nations and other international organizations to create a mechanism to track those cases and to ensure access to the children who were deported to Russia?
Van Schaack: It’s extremely important to have a full list of children taken to Russia, and particularly if they’ve been separated from parents or guardians. Those children also should be given the means to be in touch with their family members and to ensure that those communications happen and that they happen successfully. This is the work of advocates. And also, as you mentioned the International Committee of the Red Cross, they have to have access to any areas in which children are being detained or held in order to be able to ensure that they are being treated properly and that they have contact with family members back home.
VOA: After your meeting with Ukrainian Prosecutor General of Ukraine Andriy Kostin in Washington, you noted that the U.S. was considering various options with partners regarding the issue of a special tribunal to investigate and prosecute Russia for the crime of aggression. Where does the U.S. stand on this issue?
Van Schaack: A core group of states has formed in Europe that are interested in pursuing the different ideas for an aggression tribunal. The United States participated in the last meeting of that core group that happened in the Czech Republic. We’re still looking at the various options, and I think the international community is still exploring which is the best modality. One of the models that’s being considered is some sort of a hybrid tribunal that would ultimately be a Ukrainian court, but [with] a lot of international assistance, including potentially judges, prosecutors, defense council, staff who could be attached to that tribunal to bring international expertise and legitimacy.
VOA: Some international experts, including your predecessor, Ambassador David Scheffer, say that only a fully international tribunal can overcome the problem of head-of-state immunity. What is the U.S. government’s position regarding this proposal?
Van Schaack: It is true that certainly President Putin and maybe some of his closest ministers generally do enjoy head-of-state immunity before the courts of other nations essentially. So, if Ukraine were to attempt to prosecute President Putin while he’s a sitting head of state, he would have a viable head-of-state immunity defense. Generally [with] international tribunals, there is jurisprudence that says they don’t necessarily need to recognize head-of-state immunity. Either way, chances are if custody is ever obtained, it means that Putin is no longer a head of state. In which case, he would not be in a position to assert that defense anywhere he might be prosecuted.
What we’re seeing now is that the international community has never been more united around the imperative of justice. We had it back during World War II … and we’re seeing that same level of attention and focus. This is an intergenerational challenge, but I think the world has articulated its commitment here that we cannot let these crimes go unpunished.
Source: voa news