International Law

While the final chapter of the Russia-Ukraine war has yet to be written, the prospects of any negotiations to achieve a just and lasting peace remain distant. But it is not too soon to consider how accountability, particularly criminal accountability, would fare if any such talks were held between Russia and Ukraine. Russian negotiators will, of course, push back on any proposal for accountability. Ukrainian officials should anticipate a range of Russian positions that would prove incompatible with international justice. The Russians likely will table immunity defenses and counterproposals for amnesties of various types in order to shield their officials and personnel from any criminal prosecutions. Two strategies on the role of justice in the negotiations seem plausible. The first strategy would be to focus the negotiations only on peace objectives – ending the fighting, withdrawal of Russian troops, territorial integrity, reparations, return of Ukrainian children, exchanges of prisoners of war – and not seek any justice objectives. This would simplify the process but also leave accountability off the table to fend for itself. The second strategy would be to seek justice objectives – notably prosecutions of perpetrators of atrocity crimes – but perhaps leverage one or more elements to incentivize agreement on the peace objectives. The Role of Justice and Accountability in a Negotiated Peace   The Ukrainian people and their allies and friends across the globe are desperately seeking justice for the victims of atrocity crimes, namely genocide, war crimes, crimes against humanity, and aggression on Ukrainian territory. The seventh point of Ukrainian President Volodymyr Zelenskyy’s 10-Point Peace Plan is “justice,” which includes establishing a Special Tribunal to prosecute the crime of aggression against Ukraine and creating an international compensation mechanism. Zelenskyy has staked out a firm position on holding all Russian perpetrators to account. During his address in Helsinki on June 2, 2023, U.S. Secretary of State Antony Blinken said that, “A just and lasting peace must address both accountability and reconciliation.” The issue of accountability has been a regular feature of various peace negotiations in recent decades. But no situation on the global landscape is identical to any other in the realm of peace and justice. The Russia-Ukraine war has characteristics that, when considered together, present an extraordinarily challenging scenario for negotiators to navigate: a blatantly unprovoked war of aggression launched and perpetuated by Russia, a permanent member of the U.N. Security Council, against Ukraine without any prospect, yet, of Moscow reversing its illegal cross-border interventions; the infliction of widespread atrocity crimes of a character not seen in Europe since the Balkans war in the early 1990s; the emerging crime of ecocide (or war crimes or crimes against humanity constituting attacks on the environment) significantly amplified with the destruction of the Kakhovka dam on the Dnipro River in June 2023, which caused loss of life and enormous environmental and property damage and human dislocation, not to mention other devastating assaults on the Ukrainian environment during the war; the rapid and intensive investigation of atrocity crimes by a wide range of courts, inter-governmental bodies, and civil society groups – all building a large body of evidence and demanding prosecution; the International Criminal Court (ICC) central role in investigating senior perpetrators alongside the work of domestic Ukrainian criminal courts that face the Herculean task of potentially prosecuting more than 108,000 registered war crimes; while Russian troops who remain on Ukrainian territory and commit atrocity crimes will be exposed to the risk of arrest, a large number of suspects who may be charged with committing such crimes in Ukraine are or ultimately will be residing in Russia and for all practical purposes shielded from arrest and transfer to the custody of Ukrainian courts, the ICC, or any other court of non-Russian jurisdiction in the near term and possibly indefinitely; and the still undecided means of prosecuting the crime of aggression against the highest political and military leaders absent ICC jurisdiction over that crime in the Ukraine situation. Some might speculate that Russian President Vladimir Putin would be discouraged from negotiating since he already is targeted with an international ICC arrest warrant. Additional arrest warrants almost certainly will be issued against Putin in the future, including from other courts. Surely, he would refuse any responsibility for Russian commission of atrocity crimes and reject any means to establish criminal culpability in the peace agreement. Common sense informs such thinking, but so too does the reality that issues of justice are ever present in a world that is highly sensitized to atrocity crimes and to the growing realization – buttressed by three decades of tribunal-building – that such heinous crimes can no longer be planned and committed by political and military leaders with impunity and devoid of any prospect of accountability. Many such leaders have been brought to justice despite earlier common presumptions that they would escape the reach of international law for the commission of atrocity crimes while in office. Further, top political leaders, including former heads of State, have been charged in recent years for other types of crimes, demonstrating that the overall reach of criminal law has expanded significantly for those who hold power or have relinquished it. If the day arrives when Ukraine begins peace negotiations with Russia, accountability should be factored into the strategy that Ukrainian and international negotiators formulate before and during such talks. These considerations are practical necessities given Russia’s likely negotiating position and the demands of the Ukrainian people for justice. There are two over-arching strategies for the fate of justice in such negotiations.  First Strategy: Negotiate Only Peace The First Strategy would have a dual character: to end the armed conflict on largely favorable terms for Ukraine and to pursue accountability that stands separate from the peace negotiations (just as accountability is currently being pursued absent any negotiations for peace). This relatively simple formula for the peace negotiations would leave criminal accountability completely off the peace table. There would be no negotiated agreement to accelerate, slow down, strengthen, or weaken the pursuit of justice. The negotiators would be focused exclusively on the aims of peace rather than justice objectives. The two-track approach in the First Strategy would not assume any cooperation by Russian authorities with Ukrainian objectives for accountability under Ukrainian or international criminal law. There would be no leverage employed during the peace talks to compel the Russians to cooperate with atrocity crimes investigations, enforce arrest warrants, or hold any Russians accountable in Russian national courts. The pursuit of justice would rely solely on the jurisdiction exercised by non-Russian courts as well as the actions and cooperation of the Ukrainian government and many other governments, the United Nations, the European Union and other multilateral institutions, and civil society organizations committed to assisting with investigations and prosecutions of atrocity crimes committed in Ukraine. Thus, the First Strategy would remove the thorny issue of justice from peace negotiations, which could derail the talks because of the personal exposure of Russian leaders to legal jeopardy. Those leaders have a predictable interest in avoiding the legal risk or any acceptance of such criminal liability. The justice track would be pursued simultaneously under its own steady steam, with investigators, prosecutors, and judges seeking to achieve what they can in both the short term, facing Russian non-cooperation, and the long term, when Russian intransigence likely will continue unless Russia one day reforms politically in a manner where at least some cooperation on accountability might be plausible. For example, the latter could arise if Putin loses power and is succeeded by a leadership group that views his surrender or the surrender of any members of his leadership cohort to the ICC as politically useful. After all, former Serbian President Slobodan Milosevic faced exactly that fate in 2001. Once he lost power government authorities surrendered the indicted fugitive to the International Criminal Tribunal for the former Yugoslavia to face justice in The Hague for atrocity crimes. Similarly, the Liberian government consented to the surrender of former President Charles Taylor to stand trial before the Special Court for Sierra Leone, where he was convicted in 2012 and is now serving a 50-year sentence in a British prison. Second Strategy: Leverage Justice for Peace Negotiators might follow a very different course and insist on the issue of accountability being addressed directly in the peace agreement, albeit in radically different ways. It will be difficult for the Ukrainian officials to dismiss accountability as they will be representing a victimized population determined to bring perpetrators of atrocity crimes to justice. But it will be equally difficult for the Russian negotiators to embrace any proposal of accountability for Russian actions which they might view as an admission of guilt, a dark prospect that many Russian citizens would likely resent and resist. The elements that follow explore how accountability strategies could be introduced into the negotiations between Ukraine and Russia. Political factors might, for now, eclipse immediate pursuit of some justice objectives and using justice as leverage would be at the discretion of Ukrainian negotiators during any talks. Each of the elements are designed with that flexibility in mind, employing one, two, or more of the elements depending on policy judgments. Comprehensive and credible justice, which will take years if not decades to achieve, may not rest on the same time schedule as achieving the end of the war and the benefits of peace, territorial integrity, and societal stability. Of course, delayed legal proceedings can undermine successful prosecutions as witnesses become unavailable or their memories fade, tangible evidence becomes increasingly difficult to collect, public interest and support shifts to other priorities, and indicted fugitives burrow ever deeper into safe havens to avoid arrest. The mantra of “justice delayed is justice denied” can ring very true, particularly when elderly defendants die before final verdicts are rendered. But the brutal Russia-Ukraine war demands a pragmatic realization of how to balance justice with peace by examining, in advance, options that could be plausibly raised at the negotiating table by either party. Element 1: Demand full accountability for Russian criminal conduct before criminal tribunals as well as State responsibility before the International Court of Justice under relevant treaties. Accountability essentially would become a peace objective in and of itself and a means for Russia to answer for its crimes. This would be the maximalist justice strategy, but one that would meet steep Russian disinterest and resistance. While full accountability could still be pursued under the First Strategy, its prospect under the Second Strategy and melding it to peace discussions is highly problematic. Element 2: Ask the U.N. Security Council to mandate deferral of certain ICC investigations or prosecutions for one year under Article 16 of the Rome Statute, which governs the ICC. The action would have to be an enforcement resolution under Chapter VII of the U.N. Charter to maintain international peace and security and avoid a veto by any permanent member of the Council: China, France, Russia, the U.K., and the United States. This procedure was pressed by a number of African countries in the past to limit the ICC’s early focus on African situations of atrocity crimes, but the Security Council never acted under its Article 16 authority. The tactic could prove controversial both domestically in Ukraine and among ICC States Parties, including those sitting on the Security Council. The deferral, unless renewed with a veto-free vote in the Security Council, would end after one year with full resumption of any delayed ICC investigations and prosecutions. Element 3: Consult with the ICC prosecutor to take the interests of victims into account in arriving at decisions to prosecute. Article 53(2)(c) of the Rome Statute empowers the ICC prosecutor to decide that there is “not a sufficient basis for a prosecution because…[it] is not in the interests of justice, taking into account all of the circumstances…”  This provision does not prevent or derail investigations. Rather, it allows the prosecutor considerable discretion to take the interests of victims into account when weighing what strategy can best achieve not only justice, but also peace, security, safety, and economic recovery for the victims. While it may appear counter-intuitive to the aims of international criminal justice, under the Rome Statute the ICC prosecutor can elevate non-judicial interests of victims in determining the efficacy of a prosecution. Element 4: Require a temporal limitation (such as signing the peace agreement) on Ukraine’s Article 12(3) declarations under the Rome Statute that have granted jurisdiction to the ICC for atrocity crimes in Ukraine since late 2013. The Article 12(3) declaration is available to States that have not joined the ICC, like Ukraine, to request the Court’s jurisdiction over its own territory for designated atrocity crime situations. If, to advance the negotiations, the declarations are time-limited, the ICC’s jurisdiction could be reactivated with a fresh Article 12(3) declaration if there is Russian noncompliance with the peace objectives, particularly with the commission of new atrocity crimes. Element 5: Suspend efforts to create the Special Tribunal for Ukraine on the Crime of Aggression provided there is Russian compliance with the peace objectives. While the need to prosecute the crime of aggression against Ukraine before an international tribunal remains essential for both Ukraine and the deterrence of aggression globally, the fact that leadership suspects likely will avoid arrest by remaining on safe haven territory, such as Russia, gives Ukraine some flexibility to delay the creation or operational start date of the Special Tribunal in return for compliance with peace objectives at the negotiating table. Element 6: Drop or modify charges of war crimes against prisoners-of-war who would be exchanged between the two countries. Article 119 of the 1949 Geneva Convention III, which both Russia and Ukraine have ratified, posits this possibility with discretionary language: “Prisoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall apply to prisoners of war already convicted for an indictable offence.”  Applying leniency in some manner for charged or convicted prisoners of war, whose names must be shared and who include Ukrainian soldiers held in Russian detention, could be explored to facilitate their return home, particularly at the conclusion of the war as negotiated by the parties. Element 7: Drop or modify Ukrainian criminal charges against individuals responsible for illegal abductions and transfers of Ukrainian children into Russian custody provided the children are first returned to their Ukrainian parents and guardians. This may prove to be a difficult procedure under Ukrainian law, but, like prisoners-of-war, the return of Ukrainian children would be so central to any peace negotiations that there may need to be an incentive of this character to ensure that it can be accomplished. Element 8: Minimize Ukrainian legal penalties for some of the Ukrainians who collaborated with Russian occupying forces, but only if there is a Russian demand for this type of leniency. Ukraine could offer, for example, to grant such treatment to suspected collaborators who engaged in minor acts of humanitarian cooperation to ensure the survival of the residents in their communities Element 9: Create a new “Accountability Commission” that would digitally record the admissions of responsibility for atrocity crimes by low-ranking soldiers who enjoy safe haven on their national territory and have not surrendered to the custody of foreign courts, but who wish to confess or promote truth. The Accountability Commission would be created with expert international oversight and operated in the spirit of transitional justice to enable victims to reach at least some degree of closure on holding perpetrators responsible for their crimes. Russia would have to agree to cooperate with this mechanism, including a guarantee not to retaliate against those who share information with the Commission. Element 10: Lift certain economic sanctions and unblock at least some frozen assets upon Russian fulfillment of justice objectives. These tools undoubtedly will be used in the negotiations to achieve peace objectives, including the rebuilding of Ukraine. But an important issue will be to what extent they could be used to pursue justice objectives as well. For example, lifting some sanctions might be tied to surrender of designated indicted war criminals. Various sanctions were imposed against Serbia by the United States and the European Union until indicted fugitives of the International Criminal Tribunal for the former Yugoslavia, including former leaders Radovan Karadzic and Ratko Mladic, were arrested on Serbian territory and surrendered to the Tribunal. Also, the seizure of certain frozen Russian assets, particularly if facilitated with Moscow’s consent under the peace agreement, could be used to finance investigations and litigation before national and international courts for years to come. None of these strategies on justice (however configured) would be easy to implement. Each would be controversial. Funding any mechanism of justice would remain difficult. But the strategies should be considered while the pathway to peace negotiations is paved. This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy.

(Editor’s note: This article is part of a joint symposium hosted by Just Security and Articles of War. The symposium addresses topics discussed at a workshop held at The George Washington University Law School concerning U.S. cooperation with the International Criminal Court’s Ukraine investigation. Laura Dickinson’s introductory post is available here.) A quarter century ago today the Rome Statute of the International Criminal Court (ICC) was completed following years of negotiations. I led the U.S. delegation in those talks. The Clinton Administration decided not to support the final text of the treaty on July 17, 1998, but after two more years of talks on supplemental documents, I signed the treaty on behalf of the United States on December 31, 2000. Despite the fact that 123 nations, including almost every American ally, have joined the ICC, the United States has not yet ratified the Rome Statute and thus has not become party to the ICC. That fact need not be the final chapter. The time has finally arrived to acknowledge some evolutionary developments and move towards American ratification of the treaty. There is longstanding American policy that while the United States remains a non-party State to the Rome Statute, the ICC has no jurisdiction over U.S. nationals for actions undertaken even on the territory of a State Party of the Rome Statute. The same standard would apply to any other non-party State (like Russia) and its nationals acting on State Party territory (or territory of a non-party State—like Ukraine—that has fallen under the jurisdiction of the ICC voluntarily or because of a UN Security Council mandate). I term this the “immunity interpretation,” which makes it difficult for the United States to fully embrace the ICC’s investigations of Russian suspects for atrocity crimes (war crimes, crimes against humanity, genocide) committed in Ukraine. The immunity interpretation reached its peak under the Trump Administration, with the threat and, in two cases, imposition of sanctions against key personnel of the ICC and foreigners.  President Joe Biden repealed the executive order authorizing such sanctions on April 2, 2021, though Secretary of State Antony J. Blinken stated, “We maintain our longstanding objection to the Court’s efforts to assert jurisdiction over personnel of non-States Parties such as the United States and Israel.” The immunity interpretation, however, is archaic, counter-productive, and largely rejected worldwide. I should know, as I presented the immunity interpretation before the 1999 annual meeting of the American Society of International Law. While the position articulated some logical premises, it also defied the core principle of criminal law, which is territorial jurisdiction. It ignored the decision-making authority of a sovereign government when entering a treaty regime, including to confer criminal jurisdiction to an international court. In December 2019, during a hearing on the Afghanistan situation before the ICC Appeals Chamber, I spoke as an amicus and publicly rejected the immunity interpretation, whatever its original merit, as an argument that has been overtaken by customary international law. I elaborated on the point in a May 2021 article. After three decades of rapid development in international criminal law and in tribunal-building and jurisprudence to enforce the law, it is implausible that a non-party State can invade a State Party, commit atrocity crimes that fall within the jurisdiction of the Rome Statute, and essentially enjoy immunity for doing so. To do so rewards the non-party State with impunity while rendering meaningless the State Party’s membership in the ICC. Professor Leila Sadat has persuasively countered the immunity interpretation by focusing on the conferral authority of governments in her forthcoming article in the Notre Dame Law Review. In Washington, D.C., I have attended meetings recently where retired senior officials of the U.S. Government, particularly having held legal positions, have reversed their own positions and believe the United States should abandon the archaic immunity interpretation. Granted, the Russian invasion of Ukraine has proven to be an inflection point on the issue. At some stage the hypocrisy of the matter must be acknowledged. It simply is implausible to keep arguing the immunity interpretation with a straight face when the criminal assault against Ukraine and its people is so blatant, so widespread, so deadly, so destructive, and so persistent and while the U.S. Congress and the Biden Administration have evolved to support efforts, such as the ICC investigations, to hold Russian officials accountable under international criminal law. The ICC cannot exercise jurisdiction over Ukraine for the crime of aggression because of the constraint built into Article 15bis(5) of the Rome Statute. This creature of the Kampala Amendments process in 2010, at the time strongly supported by the United States and some other major powers, reads, “In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.” Consider for a moment how surreal that sounds, particularly if one recites it to the mother of a young girl who died from the impact of a Russian missile fired from across the border in Russia and hitting a civilian neighborhood in Ukraine. There is a solution to the particular problem of the crime of aggression.  Official U.S. statements condemning the Russian aggression against Ukraine ring rather hollow when the Biden Administration fails to support the creation, through a procedure involving a UN General Assembly resolution and a treaty between the United Nations and Ukraine, of an international Special Tribunal for Ukraine on the Crime of Aggression that can deny head of state immunity. Instead, the United States has opted for “an internationalized national court” in the Ukrainian legal system some day for the crime of aggression—a weak option that invites head of state immunity and hardly deters massive and continuous acts of aggression by Russia against Ukraine. Recently, I attended a closed-door meeting in Washington with a senior government lawyer and, when asked, that official simply could not answer the question of why the Biden Administration would continue to uphold the longstanding and awkwardly hypocritical immunity interpretation, particularly in light of both the Russian actions against Ukraine and the Administration’s support for new laws that enable U.S. cooperation with the ICC to investigate Russian conduct. It also proves difficult to explain the ICC’s investigation, without any noticeable U.S. objection, of Myanmar officials, whose country is a non-party State, for atrocity crimes against the Rohingya who were persecuted and forcibly deported onto the territory of neighboring Bangladesh, a State Party, beginning in 2017. I firmly believe that whatever the merits of the immunity interpretation 25 years ago, it has been overtaken by the march of customary international law combining both state practice and opinio juris, by judicial decisions, by persuasive scholarly work, by a renewed recognition of fundamental principles of criminal law and of sovereign decision-making, and frankly by common sense. Related to the immunity interpretation is the debate playing out in Washington over the implementation of ICC cooperation legislation that President Biden signed into law on December 29, 2022. Administration officials have delivered tortured testimony before Senate committees in recent months when confronted by Senators over the failure of the Administration to follow through on cooperation efforts with the ICC that are mandated by U.S. law regarding the Court’s investigation of Russian atrocity crimes in Ukraine. In a recent Senate Appropriations defense subcommittee hearing, Senators Lindsay Graham (R-SC) and Dick Durbin (D-IL) pressed Secretary of Defense Lloyd Austin on the Pentagon’s resistance to the legal mandate. Austin said that he was concerned about the issue of reciprocity. Such views are old think and reflect the concern that someday the tables will be turned and the ICC will be investigating and prosecuting U.S. actions and that we would not want other governments to cooperate with the ICC in its investigative work. The cooperation train left the station decades ago. All of America’s allies, with the exception of Israel and Turkey, are States Parties to the Rome Statute and are obligated to cooperate with ICC investigations. But there is no comparison in modern times with what is transpiring in Ukraine. Ambassador-at-Large for Global Criminal Justice Beth Van Schaack answered Austin quite effectively when asked on the PBS NewsHour recently. She said, “I think there is virtually no equivalency or comparison to what Russia has done here to anything that might involve U.S. personnel or service members. We have a full-scale war of aggression being committed through the systematic and widespread commission of war crimes, crimes against humanity. There’s no comparison here. And so I do not see a concern that this would set any sort of a precedent that might redound badly to the United States.” Austin’s statement also reflects a presumption that should be challenged. During the Clinton Administration, my instructions as the U.S. chief negotiator of the Rome Statute were based on the intent of building an international criminal court which the United States one day would join. The instructions were not to negotiate for six years to build a court that the United States would never join. When I signed the Rome Statute, the intent was to signal that the United States would remain on deck with the treaty and work towards one day joining the Court, not to stand in permanent opposition to it. President Bill Clinton conceded in his signing statement that the treaty would not (during Clinton’s remaining three weeks in office) and should not be submitted by his successor to the Senate until “fundamental concerns are satisfied,” a primary one being to “observe and assess the functioning of the court.” That opportunity to “observe and assess” began on July 1, 2002, when the ICC became operational following ratification of the Rome Statute by 60 nations. We have had 21 years to “observe and assess” and while there are some imperfections in the workings of the ICC, as there are with every legal system, the ICC’s professionalism and track record merit Washington’s respect. In any event, U.S. policy towards the ICC today should not be premised on, structured, or implemented as if the United States intends to be a permanent non-party State. Such isolation was never the Clinton Administration’s position and never reflected my negotiating instructions. The immunity interpretation was not advanced by the United States in order to permanently keep the United States out of the ICC, but rather to explain its status and non-exposure to ICC jurisdiction until Washington ratified the treaty. Otherwise, why did we negotiate and sign the treaty? Rationalizations for permanent non-party status may attract the support of those seeking that outcome, but such thinking defies all that was negotiated into the Rome Statute and its supplemental documents to protect U.S. interests, including due process protections, complementarity, Security Council backstop under Article 16, precise definitions of the crimes, judicial oversight of the Prosecutor’s investigations, tough admissibility standards, high approval requirements for amendments, precise rules of procedure and evidence, comprehensive elements of crimes, and much more. If the United States were to become a State Party of the Rome Statute, the immunity interpretation would become irrelevant—a non-issue—for the United States even if Washington wished to argue its merits for Israel, Turkey, Pakistan, North Korea, China, Iran, Myanmar, Libya, Egypt, Russia, Belarus, India, Saudi Arabia, Indonesia, Cuba, and other non-party States. Those who express concerns about “reciprocity” unfortunately convey an intimidated attitude about the ICC. Rather than be on the defensive about the ICC, the U.S. Government and particularly the Pentagon should take the offensive and recognize how the ICC in fact advances critical U.S. values, particularly against an aggressor State like Russia. The United States can weigh in and influence gravity requirements at the ICC and how the Prosecutor can best utilize his discretion, not to mention placing an American judge on the bench and perhaps one day greeting an American chief prosecutor. Washington can use its diplomatic clout to advance ICC investigative and prosecutorial objectives globally and in ways that are compatible with U.S. foreign policy and global security needs. The ICC should become part of this nation’s lawfare strategy. In other words, Washington should weaponize the ICC for worthy objectives—such as justice in Ukraine and Darfur—that reflect critical American values rather than taking an anemic defensive posture towards the Court. The Pentagon should embrace the duty of the law and when necessary justify the conduct of warfare to Congress, to the public, and even to the courts during the adjudication of relevant cases. A skeptical fear of being accused of atrocity crimes is a long way from the reality of credibly being investigated or prosecuted for such international crimes. The world has changed, and any presumption of the right to commit atrocity crimes, or to be shielded from accountability, is quite antiquated. If the U.S. military dared to plan and implement genocide, crimes against humanity, or serious war crimes anywhere in the world, then such action would demand investigation and prosecution at home with enforcement of federal and military law. Article 18 of the Rome Statute, which as a negotiator I proposed and largely drafted, is intended to give a country like the United States the opportunity to seize the reins of justice and hold onto them without interference by the ICC. We should take that option seriously if the need arises, but which actually should not arise because U.S. armed forces and indeed our civilian leadership should never be engaged in the planning and commission of atrocity crimes and certainly not of the magnitude that could trigger ICC jurisdiction. One has to think counter-intuitively to enter the world of ICC paranoia, namely that the United States must never become a State Party because it should be at liberty to act with permanent impunity as a non-party State or that the United States should be free to plan and commit atrocity crimes without consequence even if it were to become a State Party, so the Rome Statute should somehow permit that outcome. What do we have to fear from the ICC? I would argue that scenarios of illegal American conduct overseas or at home should never come to pass, but if they did, then the response must be first and foremost the enforcement of U.S. law, be it federal criminal law or the Uniform Code of Military Justice, or both, and adherence to Congressional oversight. The United States could become a pillar of complementarity and leadership in the ICC if some in Washington were not so intimidated by fear of ICC scrutiny. Lawmakers still have work to do on complementarity. For many years, Senator Durbin has advanced legislation to fill the gaps in federal criminal law for genocide, war crimes, and crimes against humanity. If the gaps can be filled, then the United States can demonstrate its capacity to investigate and prosecute the atrocity crimes found in the Rome Statute and thus, if addressed properly, avoid ICC scrutiny. This is the same goal shared by our allies, which are almost all States Parties to the Rome Statute, and many have amended their criminal codes accordingly. Durbin has almost reached the finish line. Laws of essentially universal jurisdiction have been adopted for commission of genocide and war crimes. The next step should be the Crimes Against Humanity bill, which Durbin introduced on July 12 as an amendment to S. 2226 authorizing appropriations for fiscal year 2024 for the Department of Defense.  One should not expect a mirror image of Article 7 of the Rome Statute in the Durbin bill, but if adopted it will be the first opportunity to bring crimes against humanity into the federal criminal code. Administration and Congressional negotiators should be able to get it over the finish line this year given the impetus afforded by the Russia-Ukraine war, the recent enactment of the Justice for Victims of War Crimes Act, and the new legal authority for cooperation with ICC investigations in Ukraine. Senator Charles Grassley of Iowa (R-IA) stepped forward in 2022 to co-sponsor the Justice for Victims of War Crimes Act and thus build bi-partisan support for it. Even though at present the United States is not a State Party to the Rome Statute, the consequence of these legislative acts would be that any Russian soldier or government official involved in atrocity crimes in Ukraine and who steps foot in the United States, including Disney World with his family, would risk arrest and prosecution in federal criminal court for the crime of genocide, war crimes, or crimes against humanity. Even though President Vladimir Putin, Foreign Minister Sergey Lavrov, and Defense Minister Sergei Shoigu, if they dared to visit the United States, could claim head of state immunity as the most senior officials of the Russian Government and thus avoid sustained arrest, the fact that a federal criminal indictment and an arrest warrant could be issued would present legal jeopardy and public shaming none of them may wish to risk.  Of course, if the United States were a State Party to the Rome Statute, any ICC arrest warrant against such individuals should be honored if they were to visit this country. In so many discussions I have had about the ICC and U.S. policy over the years, particularly dialogues with foreign scholars, lawyers, think tankers, diplomats, and journalists, there arises the constant refrain that American invocations about international criminal justice fall on deaf ears overseas, particularly in the Global South, because of the foreign perception of double standards. The complaint centers on the United States negotiating treaties like the Rome Statute that it then does not ratify. In their view, the U.S. military sometimes acts illegally on a large-scale, such as the Anglo-American invasion of Iraq in 2003 and the use of torture in Afghanistan, foreign black sites, and Guantanamo during the so-called war on terror. These are very deep scars. While I was negotiating the Rome Statute, other negotiators often would press me in sidebar discussions about perceived American hypocrisy and the peculiar American failure to commit. They would remind me that they re-opened the Convention on the Law of the Sea at President Ronald Reagan’s insistence to revise the deep sea mining provisions. But once they met U.S. demands and ratified the treaty amendments, the United States never followed through with ratification of that critical treaty. And yet today our government relies heavily on the rights protected by that treaty, albeit claiming they are customary international law, to ensure U.S. commercial and military access on the seas. Our foreign friends are not pacified and are quite cynical. There is deep resentment that the United States intensively negotiates international treaties, signs many of them, and then often fails to follow through with ratification. The United States would begin to overcome the double-standards perception, which cripples our influence on so many fronts, including international criminal justice, if the U.S. Senate were to follow through on major treaties that the United States took the lead in negotiating and then often signed. These include the Convention on the Law of the Sea, Additional Protocols I and II of the 1949 Geneva Conventions, the Convention on the Rights of Persons with Disabilities, and, yes, the Rome Statute of the International Criminal Court. All but one of these treaties have been languishing for decades. For example, it has been 23 years since the United States signed the Rome Statute. Despite some flaws in its performance, the ICC has demonstrated its credibility, competence, fairness in protecting due process rights, reasoned jurisprudence, and a mixture of convictions and acquittals. It also is demonstrating every day its relevance in a highly dynamic and violent world. All of Europe and Latin America, most of Africa, the Caribbean and Central America, and a good number of Asian and Pacific nations are committed to a credible ICC. White House and Congressional support for ICC investigations in Ukraine is an encouraging signal of more open minds about the ICC in the Executive Branch and on Capitol Hill. The Biden Administration should take the following steps now to advance American engagement with the ICC and pave the way for U.S. ratification of the Rome Statute: The Crimes Against Humanity bill should be navigated towards adoption in the Senate and the House of Representatives as a bipartisan initiative to close an increasingly inexplicable gap in federal criminal law and better insulate the United States from ICC scrutiny. The White House should signal its intention to sign an acceptable bill into law. The Biden Administration should undertake a thorough review of the American Service Members Protection Act and determine what provisions, if any, should remain U.S. law as the government considers ratification of the Rome Statute. The Biden Administration should cease use of the immunity interpretation when discussing the Rome Statute, the ICC, and U.S. policy. There is no need to explicitly reject the immunity interpretation, but there is an imperative need now to stop defining U.S. policy as being anchored in it. A simple explanation would be that the immunity interpretation no longer guides U.S. policy. The State Department should send a letter to the United Nations, as depository of the Rome Statute, to withdraw the George W. Bush Administration’s letter of May 6, 2002, which states the intention of the United States not to become a party to the Rome Statute and to abandon any obligations as a signatory party. Those statements undermine U.S. foreign policy objectives and are embarrassing even to read in 2023. The letter remains a beacon of hopelessness for other countries seeking to understand the U.S. posture towards the ICC. Fortunately, the U.S. signature has never been removed from the Rome Statute but no longer should be soiled by such statements. A fresh State Department letter would send a powerful signal that the United States is shedding this symbol of weakness. The United States should take the lead in the U.N. Security Council to ensure that the fresh investigation by the ICC Prosecutor of the recent atrocity crimes in Darfur can be fully resourced and supported by the Council under the UN Charter Chapter VII enforcement authority of UN Security Council Resolution 1593 of March 31, 2005, which referred the Darfur situation of 18 years ago to the ICC and which the United States enabled at the time. This would demonstrate that the Biden Administration not only is interested in supporting ICC investigations of the atrocity crimes in Ukraine but also is backing other designated ICC investigations, notably in Darfur. Further, the State Department should indicate its clear support for the ICC investigation of atrocity crimes committed against the Rohingya and seek Congressional authorization for that assistance, similar to what has been obtained for investigation of the Ukraine situation. The National Security Council should chair an inter-agency task force to draft “declarations” to the Rome Statute that would address key U.S. interests, including adherence to the U.S. Constitution and to full complementarity within the U.S. judicial system. Senators undoubtedly would craft their own declarations, and those would be critical to consider, in part to ensure that none of them rise to the level of reservations, which are prohibited by the Rome Statute to all States Parties. But the initiative to draft declarations, which many nations have employed for the Rome Statute, would be a pragmatic and constructive means to mold acceptable terms for ratification of the Rome Statute. President Biden should use the occasion of his address before the UN General Assembly in September to express his intention to take the necessary steps with consultations and legislation on Capitol Hill so that the United States can ratify the Rome Statute with bipartisan support in the U.S. Senate. (He will need 67 out of 100 votes to achieve U.S. ratification.) Everyone knows this will take time (likely years) to achieve but the stated intention will boost American credibility and blunt the double standards criticism that constrains U.S. foreign policy aims. My hope is that it will not take another 25 years before the United States is part of the International Criminal Court. The fact that it took the United States 40 years to ratify the Convention on the Prevention and Punishment of the Crime of Genocide is a dishonorable precedent in American history and we should strive not to repeat it. Atrocity crimes are the scourge of our times and the United States should be proudly and confidently at the forefront of bringing the perpetrators of such heinous acts to justice. This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy.

The last Congress delivered a big win for atrocity accountability by passing the Justice for Victims of War Crimes Act, which President Joe Biden signed into law in January of this year. The law closed several critical loopholes in U.S. law on atrocity crimes, adding jurisdiction over war crimes committed abroad when the perpetrator is present in the United States, regardless of the nationality of the perpetrator or victim, and eliminating the statute of limitations for most war crimes (a significant practical barrier to enforcement). These changes brought U.S. law far closer to its obligations under international law, including the Geneva Conventions. While there has not previously been a U.S. prosecution using the war crimes statute, the numerous examples of individuals accused of war crimes ending up in the United States suggest that with due attention and resources, these changes can bolster the United States’ ability to deliver some measure of justice to more victims of atrocities. But even with progress on war crimes, current U.S. law still severely limits the role U.S. courts can play in holding perpetrators of atrocity crimes accountable because of a significant gap in the legal framework for crimes against humanity (which often occur outside of any war context). Crimes against humanity involve a specific set of grave human rights violations committed as part of a widespread or systematic attack against a civilian population (more on that below). If the United States is serious about fighting impunity for the repeated patterns of atrocities committed in Ukraine and many other situations around the world, it should close the crimes against humanity loophole in U.S. law as soon as possible. Momentum for Atrocity Accountability The political will to finally reform U.S. law on war crimes stemmed in large part from bipartisan efforts in both Congress and the executive branch to ensure working paths exist to pursue accountability for atrocities committed in Ukraine. In a September Senate Judiciary Committee hearing, DOJ and DHS officials testified that addressing gaps in U.S. law would expand the tools available to U.S. authorities, and expand access to justice for victims of atrocities, without which the United States would effectively be a “safe haven” for certain types of human rights violators. The hearing raised several other shortcomings of U.S. law on atrocities (including clarifying the extraterritorial applicability of the Alien Tort Statute, the subject of another proposed bill last session that did not advance). Though the hearing again demonstrated bipartisan interest in expanding U.S. jurisdiction over war crimes and crimes against humanity, only the war crimes fixes were achieved during that session, leaving the void for crimes against humanity intact and U.S. agencies and courts without adequate options to provide justice for victims of those crimes. Several experts, civil society coalitions, professional associations, and human rights advocates have repeatedly raised the problem (including a Working Group on Crimes Against Humanity within the American Bar Association chaired by Ambassador Scheffer). An initial bill was introduced by Senator Dick Durbin and colleagues in 2010 (past hearings here, here, here). Since then, cases pursued in some of the many national jurisdictions that already have crimes against humanity laws have provided compelling evidence of their utility: there have been multiple prosecutions of ISIS members in Germany for crimes committed against the Yezidis, cases filed by victims’ advocates in Argentina for crimes committed against the Rohingya and Uyghurs, and criminal cases against Syrian regime officials, all for crimes against humanity. In fact, crimes against humanity was the most common charge (66) found in Trial International’s 2022 report on universal jurisdiction cases, compared to 34 war crimes and 25 genocide charges. Despite their frequency and despite consistent U.S. policy supporting atrocity accountability and prosecutions abroad, the U.S. government does not have its own legal authority to criminally prosecute perpetrators of crimes against humanity, even when alleged perpetrators are in the United States. This leaves a unique category of atrocities vulnerable to impunity. The Crimes Against Humanity Gap in U.S. Law A patchwork of U.S. law currently gives federal authorities the tools to prosecute perpetrators of war crimes (bolstered by the legislative updates described above), genocide, and the specific crimes of recruitment/use of child soldiers and torture, which now all include jurisdiction when the offender is present in the United States (among other jurisdictional bases, coverage of which remains inconsistent among the statutes). Of those statutory tools, only the torture statute has so far been used to pursue criminal accountability in the United States (Ross Roggio, Michael Sang Correa, Charles “Chuckie” Taylor,  Jr., the only conviction so far, and Sulejman Mujagic, who was charged but extradited). Additional existing federal laws punish isolated crimes (such as individual acts of murder) in limited circumstances, but these laws often do not cover crimes committed abroad, even when perpetrators are found in the United States. Because of these limitations, prosecutors often resort to using immigration violations such as fraud and false statements (the utility of which is also limited by statutes of limitation) to prosecute and/or remove suspected international criminals from the United States. In many of these cases, involvement in crimes against humanity form the basis of the fraud allegations and evidence outlined in court. As one example, Liberian warlord Mohammed Jabbateh was convicted of immigration fraud and perjury in 2018 rather than for the most serious crimes that victim testimony demonstrated he and his fighters committed against civilians (murder, enslavement and sexual enslavement, torture, conscription of child soldiers, persecution, and other inhumane acts—all amounting to crimes against humanity) during Liberia’s first civil war. These efforts can physically remove perpetrators from U.S. soil, but they often do not result in appropriate penalties fitting the scale and criminality of atrocities. Prosecuting the conduct that constitutes atrocities as “common” crimes or through immigration violations, as a sort of workaround, does not adequately recognize and respond to the unique social harm and extent of victimization inflicted on communities through widespread, systematic atrocities, and may not elicit the perpetrator’s full culpability. And although some alleged perpetrators have been prosecuted for crimes against humanity or other crimes in their home countries after being deported, others have not and thus may escape justice altogether. Lastly, as Ambassador Scheffer has previously noted, the lack of crimes against humanity provisions in the U.S. legal framework also means that if Americans are allegedly involved in crimes against humanity, either as perpetrators or as victims, the United States’ inability to investigate and prosecute those atrocities at the appropriate level of gravity could mean that there will either be no accountability for those crimes, or that prosecutions will be pursued in other legal venues, such as in the national courts of other countries or international tribunals with jurisdiction, rather than U.S. courts. Crimes Against Humanity Laws Respond to Atrocity Situations that War Crimes Laws and Genocide Do Not As defined in Article 7 of the Rome Statute of the International Criminal Court (ICC), crimes against humanity include certain acts (such as killing, extermination, torture, sexual violence, and persecution) when committed as part of a widespread or systematic attack against the civilian population. Crimes against humanity can include attacks against civilians during war (and therefore may overlap in part with war crimes), but they also cover a distinct set of crimes that occur in “peacetime,” leaving many cases unaddressed by war crimes laws (see USCIRF’s Legislation Factsheet). Crimes against humanity also uniquely recognize the use of a State or organizational policy to attack civilians, which Ambassador Beth Van Schaack noted in written testimony makes crimes against humanity laws “critical” for promoting accountability for senior leaders, who “are often instrumental in the design and execution of the state or organizational policy through which mass atrocities are committed.” And crimes against humanity include many atrocities that do not fit the limited technical legal definition of genocide. Research by Professor Leila Sadat has found that many modern atrocities are solely prosecuted as crimes against humanity — 30% of ICC cases have included only crimes against humanity charges. Because elements of crimes against humanity also often manifest as indicators and precursor acts for other atrocities, occurring before the onset of armed conflicts or more developed plans to destroy entire populations (what Sadat has called an “atrocity cascade”), crimes against humanity laws are also important tools for atrocity prevention. War Crimes War crimes, in contrast, are limited to serious violations of international humanitarian law occurring in the context of an armed conflict (drawn from various international legal sources including the Hague Conventions, Geneva Conventions and their Additional Protocols). Even with recent legislative changes, the provisions of the U.S. Code on war crimes do not include all war crimes under international law, and some were also decriminalized through the Military Commissions Act of 2006. Rome Statute Article 8 contains an extensive illustrative list of war crimes, but it also demonstrates key challenges in their prosecution, which first requires a determination that violence has risen to the level of an “armed conflict,” and then whether the armed conflict is “international” or “non-international” in order to determine which exact rules apply as well as a potential nexus of the relevant conduct to the conflict. What’s more, as Ambassador Stephen Rapp previously noted, courts may deem crimes committed far from the “battlefield” not to be “war crimes,” even when they occur during an armed conflict. Those same challenges do not arise for crimes against humanity. Crimes against humanity charges can also cover unique conduct of comparable gravity to war crimes. The crime of forced marriage, for example, which often occurs within the context of armed conflicts, but is not well captured by enumerated war crimes, has been successfully prosecuted in international courts as a crime against humanity (most recently in the Ongwen case at the ICC). Additional examples include post-election violence (e.g., ICC investigations in Kenya and Cote D’Ivoire); violence against peaceful protestors (e.g., 2009 stadium massacre in Guinea); and mass killings, enforced disappearance, torture, and deportation outside of armed conflicts (e.g., extra-judicial killings as part of the Philippines so-called “war on drugs,” or torture committed against perceived political opponents in Venezuela, or post-coup crimes in Myanmar). Genocide The challenges in prosecuting atrocities as genocide have been clearly articulated by experts (ex. here, here, here, here, here), and research on past U.S. atrocity determinations. Those challenges include the difficulty obtaining sufficient evidence of the highly specific “intent to destroy” a population as well as the limited protected groups covered by the Genocide Convention. Whether an atrocity qualifies as a genocide is often the subject of much public debate, government deliberation, and even judicial deliberation, with questions over classification sometimes clouding the atrocity response. Importantly, it is very likely that acts falling short of the threshold or specific circumstances recognized as genocide within international law would constitute crimes against humanity. The crime of persecution, for example, has existed in international criminal law since the Nuremberg trials, and as part of the law of subsequent international tribunals including the ICC. Like the crime of genocide, the crime against humanity of persecution focuses on acts committed against particular groups based on perceived identity, with discriminatory intent (a lower threshold than the “specific intent to destroy” required for genocide), yet covers more recognized grounds (political, racial, national, ethnic, cultural, religious, gender or other grounds that are “universally recognized as impermissible under international law”) than the crime of genocide. Numerous past cases have exemplified the utility of crimes against humanity at capturing atrocities that were difficult to include within the limited definition of genocide, such as atrocities by the Khmer Rouge in Cambodia against particular political or social groups (not protected groups under the Genocide Convention); and the ICTR Media Case, where charges of persecution as a crimes against humanity allowed prosecutors to include broadcasts by Hutu extremists that helped direct the killing of Hutus politically-aligned with Tutsis. Present day examples include mass violence against political, social, or other groups not covered by the Genocide Convention or where evidence of genocidal intent is difficult to obtain (e.g., extensive crimes against the Uyghurs, which a UN’s report suggested “may constitute international crimes, in particular crimes against humanity”) and gender-based persecution (e.g., escalating attacks on rights of women and girls in Afghanistan), among others. Impact on Accountability for Crimes Against Humanity in Ukraine and Beyond The crimes against humanity loophole in U.S. law leaves the United States unprepared to deal with the slate of potential atrocities occurring in Ukraine and other situations, leaving the United States a safe harbor for perpetrators who come into U.S. jurisdiction. As exemplified above, there are many atrocity crimes not covered by war crimes or genocide statutes, for which having a crimes against humanity statute would be necessary to secure criminal accountability. One does not need to look hard for examples of these crimes occurring in ongoing atrocity situations today. In Ukraine, for example, the OSCE mission of experts’ reports have already concluded that some patterns of violence committed in Ukraine (“targeted killing, rape, abductions, or massive deportations of civilians”) qualified as widespread or systematic attacks against a civilian population likely to constitute crimes against humanity. In 2020, before the invasion, the previous ICC Prosecutor had already found a reasonable basis to believe that war crimes and crimes against humanity had been committed in Ukraine as part of earlier situations, including alleged crimes such as persecution on political grounds and enforced disappearances occurring “in the context of the period leading up to and during the (ongoing) occupation of Crimea.” With the war ongoing, we cannot say for sure that all international crimes committed related to the conflict will be best captured by criminal laws on war crimes alone. Is the systematic targeting of certain groups of Ukrainian civilians, for example, better captured by crimes against humanity charges? Would attacks and violence against activists or dissidents critical of the war or against other persecuted groups within Russia, for which different officials might be highly responsible, rise to the level of crimes against humanity?  Could the “filtration system” and systematic deportation of Ukrainians to Russia, or crimes committed against Ukrainians after their deportation ,best be captured by crimes against humanity? Department of Justice Director of Human Rights Enforcement Strategy and Policy and Counselor for War Crimes Accountability Eli Rosenbaum raised this last concern during the September 2022 hearing (see recording at 1:27:50), noting the possibility that potential ambiguities in other areas of international law make this “another instance in which it would be very helpful to have crimes against humanity on American law books at long last.” Critically, we do not know which perpetrators or victims of atrocities may end up in the United States and fall under U.S. jurisdiction, when perpetrators already in the country will be recognized by law enforcement or even victim communities, or for which specific crimes U.S. law enforcement authorities will be able to obtain sufficient evidence. Having statutes on genocide and war crimes but not crimes against humanity unnecessarily ties the hands of U.S. investigators and prosecutors when opportunities arise. Closing loopholes in the legal framework is therefore one way that the United States can stand up for justice in Ukraine and beyond. Conclusion There is no hierarchy of atrocity crimes. Genocide, war crimes, and crimes against humanity all describe and capture different forms of criminal conduct the international community has deemed unacceptable under any circumstances.  Crimes against humanity focuses on heinous crimes systematically targeting civilians on a massive scale, through abuses of power by States or other organizations. Just as the crime of genocide is an important repudiation of attempts to destroy communities, crimes against humanity also has important expressive value: it elicits truth about the scale of planning and preparation, recognizes unique harm and the targeting of protected groups, and includes acts that fall outside the technical bounds of genocide or war crimes, yet are atrocities nonetheless. Closing the loophole on crimes against humanity in U.S. law would combat the perception that the same universal international legal obligations do not apply to all countries equally, or that victims of some crimes are more deserving of justice than others. And when human rights activists and experts in Ukraine are advocating for Ukraine to shore up their own domestic law on atrocities, correcting a critical flaw in U.S. law only strengthens U.S. credibility and ability to lead. Such a legislative reform would make good on expressed commitments to pursue justice, as updating the war crimes statute did, and help ensure that perpetrators of any atrocities cannot find a safe haven in the United States. It would also give U.S. government lawyers the tools they need to effectuate investigations and deliver justice for victims, including when the U.S. government  has special if not unique access to witnesses, evidence, or the perpetrators themselves. The United States was instrumental in drafting definitions of crimes against humanity as part of the post-WWII Nuremberg and Tokyo tribunals, and as part of its leadership in negotiating the statutes of international ad hoc tribunals and the ICC Statute. During recent diplomatic discussions on a potential crimes against humanity treaty in 2021 and 2022, the United States delegation said the absence of a treaty addressing crimes against humanity was a “critical gap in the international legal framework” that the United States “strongly believe[d] should be addressed.” It is past time to live up to that commitment and fill the crimes against humanity gap in the United States’ own law. Disclaimer: The views expressed herein represent the opinions of the authors. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities.

As climate change makes some parts of the earth uninhabitable, a climate migration crisis looms that international law is not prepared to address.

[Editor’s Note: This article is part of a Just Security series, Prosecuting the Crime of Aggression Against Ukraine. All articles in the series can be found here.] The proposal for a Special Tribunal for the Crime of Aggression (STCoA), one with singular jurisdiction to investigate and prosecute individual leaders responsible for the Russian military’s aggression against Ukraine, has given rise to concern that such a tribunal would compete with the International Criminal Court (ICC) for resources, evidence, arrest warrants, and defendants. Another point of view is that the STCoA would strengthen the ICC’s own investigations and follow through with action on a core crime of the Rome Statute of the ICC — aggression — the one place where the ICC lacks jurisdiction over Russian actions in Ukraine. Establishment of the STCoA can and should advance the efficient and comprehensive application of international criminal justice in the months and years ahead. In this Just Security series, I and several colleagues explain the merits of creating the STCofA through a treaty entered into by the United Nations and the Government of Ukraine (“UN-Ukraine treaty”). The ICC cannot exercise jurisdiction for the crime of aggression against Ukraine due to an exemption for nationals of non-party States (such as Russia) in Article 15bis(5) of the Rome Statute. Thus, the task of investigating and prosecuting the crime of aggression inflicted upon Ukraine must be carried out in a newly-created international tribunal like the STCoA (the choice my colleagues and I and others advocate), the Ukrainian courts, or national courts in other countries exercising appropriate universal jurisdiction. Others will discuss the immunity of defendants that pose special obstacles to trying the crime of aggression in Ukrainian or other national courts. In this article, I explain why the STCoA we have proposed should be a vehicle of cooperation, rather than competition, with the ICC.  1. Sharing Defendants Like the ICC, the STCoA would narrow its investigations and prosecutions to the senior political and military leaders of the Russian Federation, and possibly some oligarchs, because the crime of aggression is strictly a leadership crime. At the STCoA, Russian President Vladimir Putin and his Kremlin cohort of senior military and political advisers could be investigated for planning and executing the invasions of Ukraine in 2014 and again in 2022 (possibly including Belarus leaders) with acts of aggression constituting manifest violations of the U.N. Charter. Before the ICC, the same leadership group would be investigated for the progeny crimes arising from aggression, namely large-scale commission of war crimes, the crimes against humanity committed as part of a widespread or systematic attack against the Ukrainian civilian population, and possibly incitement to commit genocide and forcible transfers of Ukrainian children to Russia. There is nothing incoherent about two international courts, the ICC and the STCoA, investigating the same individuals for the different crimes that fall within their respective subject matter jurisdictions. No Russian leader should escape the reach of international criminal law for any of the atrocity crimes (including aggression) committed against and in Ukraine. Why, for the sake of minimizing challenging litigation, should an army general be investigated for crimes against humanity in Bucha and yet escape investigation for his part in the high leadership group that planned before Feb. 24, 2022 the war of aggression against Ukraine? Why should a senior Russian official involved only in planning aggression against Ukraine essentially be immune from investigation and prosecution by a credible tribunal created under the auspices of the United Nations? Or what if he were deeply involved in both, but the evidentiary proof is insufficient to indict for war crimes committed during the conflict? It is simply implausible to bury in a black hole any accountability for the crime of aggression when the evidence of an egregious act of aggression has been so blatantly revealed in the recent history of Ukraine.  The worry, of course, is that the same individual cannot be in the custody of and on trial before these two tribunals at the same time. It’s true, no one can be two places at once, but this is not an unmanageable problem for national court systems across the globe. Indeed, prosecutions in different courts and across jurisdictions are common. Today, Harvey Weinstein stands trial before a Los Angeles court for rape and sexual assault following his conviction for these crimes against different individuals before a New York court in 2020. Charged individuals often stand trial multiple times, sequentially, before different domestic courts exercising their respective jurisdictions, or through extradition procedures between the courts of different countries. There is no reason that also cannot be the case in the practice of international criminal tribunals. The criminal procedure almost certainly will require many years to hold sequential trials before the ICC and the STCoA, but that is the reality of international jurisprudence. The Rome Statute’s double jeopardy provision, Article 20(3) (“Ne bis in idem”), presents a critical challenge. It requires that, “No person who has been tried by another court for conduct also proscribed under article 6, 7, 8 or 8bis shall be tried by the Court with respect to the same conduct unless” various stipulated flaws existed in the original trial. Article 8bis defines the crime of aggression before the ICC and likely would be replicated in the STCoA Statute. Interestingly, even though the ICC cannot prosecute the crime of aggression with respect to the Ukraine situation, Article 20(3) may require the ICC to consider the STCoA’s initial prosecution of the crime of aggression against an individual in determining whether the same defendant can be charged by the ICC for conduct that overlaps both the crime of aggression and any other of the Rome Statute crimes: genocide, crimes against humanity, and war crimes.  For example, if a Russian general is tried before the STCoA for the crime of aggression because he plotted with other Kremlin leaders the military invasion of Ukraine in early 2022, but the same conduct approving the aggression plan also included, within that plan, strategizing the large-scale commission of war crimes by Russian forces inside Ukraine following the initial act of aggression, then Article 20(3) might be read by at least some ICC judges to prevent prosecution of the general for planning the commission of war crimes in Ukraine, whether or not he was convicted or acquitted before the STCoA on the charge of aggression. However, if the Russian general was prosecuted by the STCoA for the crime of aggression and his conduct examined by the STCoA did not involve plotting war crimes as part of the plan of aggression, but rather his intent to commit war crimes arose weeks or months later in Ukraine independently of his original participation in the plan to invade Ukraine, then Article 20(3) should be no impediment to ICC prosecution of him for war crimes.  Further, Article 20(2) of the Rome Statute explicitly states, “No person shall be tried by another court for a crime . . . for which that person has already been convicted or acquitted by the Court.” Thus, any verdict rendered by the ICC prior to a STCoA trial of the same person would reserve to the STCoA a subsequent prosecution of the crime of aggression since that person would not have been prosecuted by the ICC in the Ukraine situation for the crime of aggression. This would presumably encourage cooperation between the two courts for the ICC to prosecute first any person of interest to both courts.  Obtaining custody of indicted fugitives, most likely residing in Russia, should be strengthened with the existence of two arrest warrants, one for aggression and the second for other atrocity crimes. At some point, military or political leaders or oligarchs who are stigmatized and weakened with two incriminating arrest warrants issued by these international criminal tribunals may begin to lose favor domestically and pressures will mount to pitch them abroad to face the trials awaiting them in The Hague (as was the case with Slobodan Milošević and Charles Taylor). This will be particularly true if nations continue to enforce at least some sanctions against Russia after the war ends and refuse to lift them until the indicted fugitives are surrendered to either tribunal in The Hague. 2. Cooperation Overall, the most critical issue is whether the two courts can negotiate a cooperative relationship agreement where competing investigations, arrest warrants, seizure operations, and custody of leadership suspects likely in Russia can be organized and trials scheduled first before one court and then before the second court. While a special agreement on cooperation doubtless would be required between the ICC and the STCoA, an important treaty that could greatly facilitate the process already exists.  Since the STCoA would be a U.N.-backed criminal tribunal under the UN-Ukraine treaty, there would be a plausible argument that the Relationship Agreement between the International Criminal Court and the United Nations (“Relationship Agreement”) should apply to the relationship between the STCoA and the ICC. Indeed, the UN-Ukraine treaty could explicitly stipulate this and apply Articles 15-20 (“Cooperation and judicial assistance”) of the Relationship Agreement to the STCoA. This would help establish a working partnership between the ICC and STCoA.  The Relationship Agreement actually works to the advantage of the ICC and thus should help dispel concerns about a competing STCoA. The United Nations, and by extension the STCoA, is required to cooperate with the ICC and “to provide to the Court such information or documents as the Court may request pursuant to Article 86, paragraph 6, of the [Rome] Statute.” In turn, that provision reads: “The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.” The reverse flow of evidence — from the ICC to the STCoA — would not be required unless negotiated between the two parties.  Article 18 of the Relationship Agreement would require the STCoA to undertake very close cooperation with the ICC prosecutor and to enter “into such arrangements or, as appropriate, agreements as may be necessary, to facilitate such cooperation” particularly when the ICC prosecutor exercises “duties and powers with respect to investigation and seeks the cooperation of the United Nations in accordance with” the Rome Statute’s Article 54 (“Duties and powers of the Prosecutor with respect to investigations”).  Given the near certainty that investigations of top Russian officials for crimes in both tribunals will entail retrieval and use of classified information provided from a variety of sources (such as communications intercepts obtained by the STCoA and any mole identified within the Kremlin), the ICC and the STCoA can be guided by Articles 18(3) and 18(4) of the Relationship Agreement, which read as follows: Article 18(3): The United Nations and the [ICC] Prosecutor may agree that the United Nations provide documents or information to the Prosecutor on condition of confidentiality and solely for the purpose of generating new evidence and that such documents or information shall not be disclosed to other organs of the Court or to third parties, at any stage of the proceedings or thereafter, without the consent of the United Nations.  Article 18(4): The [ICC] Prosecutor and the United Nations or its programmes, funds and offices concerned may enter into such arrangements as may be necessary to facilitate their cooperation for the implementation of this article, in particular in order to ensure the confidentiality of information, the protection of any person, including former or current United Nations personnel, and the security or proper conduct of any operation or activity of the United Nations. It will be essential that whoever is selected as the STCoA prosecutor have the recognized intent, experience, and demeanor to forge a respectful and cordial working relationship with ICC prosecutor Karim Kahn, who earlier this year began a nine-year term. The STCoA prosecutor also should confirm, in advance, the binding requirements of the Relationship Agreement and any other cooperative arrangement or agreement forged between the two courts and the STCoA’s obligation to comply with them. The last thing proponents of justice want is two strong-willed prosecutors bickering over procedures of cooperation. But that is quite easily avoided. Invoking the Relationship Agreement and any further agreement negotiated and entered into between the STCoA and the ICC should provide for a solid and mutually beneficial working relationship between the two institutions. 3. Funding There is understandable concern about how the STCoA would be funded and whether such funding would be at the expense of the financial requirements of the ICC. The ICC is an assessed body, and thus its 2022 budget of Euro 154,855,000 will be paid with the assessments charged to States Parties of the Rome Statute. The ICC Prosecutor also has sought voluntary contributions, including for the Ukraine investigation. However, it would be unjust for the ICC to seek a disproportionate amount of voluntary contributions for Ukraine at the expense of the many investigations underway of other situations under its jurisdiction. Anyway, there is a limit to what governments would voluntarily contribute to the ICC, either for Ukraine or other situations, because States Parties view assessments as covering their obligations to the ICC in each year’s budget that is negotiated and approved by the ICC Assembly of State Parties, without having to supplement those assessments with voluntary contributions. Prosecutor Kahn may seek a higher authorized budget for his office, and thus require higher assessments from States Parties for next year, to cover the extraordinary expenses of the Ukraine investigation. He would be right to be concerned that the governments that authorize funding for the STCoA may balk at the appeal for higher ICC assessments to cover the Ukraine investigation. There are at least three ways to approach this dilemma. First, the STCoA should be viewed as a de facto extension of the ICC for purposes of investigating and prosecuting the crime of aggression in general, a core crime already embedded in the Rome Statute and that is a central purpose of the ICC. The STCoA would establish the first road map for such investigations and prosecutions of the crime of aggression and that process would benefit the long-term goals of the ICC, particularly if the two courts can cooperate pursuant to the Relationship Agreement and any other specific arrangements or agreements between them. Thus, voluntary funding for the STCoA should be viewed as a down payment on the skills and experience needed by and benefiting the ICC in the long run to litigate the crime of aggression under the Court’s jurisdiction. The STCoA’s track record also can inspire amendment of the Rome Statute to broaden the ICC’s jurisdiction on the crime of aggression in situations like Ukraine.  Second, while it would be ideal for the STCoA’s annual budget to be covered by the regular UN budget (and hence the annual assessments charged to all U.N. Member States), that is a highly unlikely scenario. Requiring U.N. funding, like the International Criminal Tribunals for the former Yugoslavia and Rwanda enjoyed as U.N. Security Council Chapter VII subsidiary organs, would only act as an accelerant for a firestorm of opposition by Russia and China and their friends in the U.N. General Assembly to an initiative to create the STCoA, much less pay for it. Further, the Administrative and Budget Committee (Fifth Committee) of the U.N. General Assembly normally acts on consensus to approve all budgetary matters. That consensus likely would never be achieved for a U.N. allocation of assessed funds to the STCoA or even for any subvention from U.N. funds to cover shortfalls in STCoA voluntary funding (which were approved in the past for the Extraordinary Chambers in the Courts of Cambodia and the Special Court for Sierra Leone). Proponents of the STCoA would also never want to place its annual budget on such unsure footing.  These realities point toward a voluntarily-funded STCoA. Organization for Economic Co-operation and Development (OECD) countries that have taken strong stands opposing the Russian aggression against Ukraine should be willing to contribute significant voluntary funding for the establishment and operation of the STCoA. These nations include the United Kingdom, Canada, the United States, the Baltic States, the Netherlands, South Korea, Poland, Germany, France, Japan, Australia, and the Scandinavian countries. The European Union also might be a willing contributor. Taiwan, in a show of solidarity with the governments opposing aggression against Ukraine, also could contribute to the effort.   Special fundraising diplomacy by experts from the United Nations and the Government of Ukraine will be necessary to corral the essential funding, but there are ample precedents. Similar endeavors were required for years to raise the voluntary public funds to cover the annual budgets of the Extraordinary Chambers in the Courts of Cambodia, the Special Court for Sierra Leone, and the Special Tribunal for Lebanon — all tribunals established by treaty between the United Nations and the respective government. (For full disclosure: I was the U.N. Secretary-General’s Special Expert on U.N. Assistance to the Khmer Rouge Trials (2012-2018)). While a nation’s assessments to the ICC often came up in discussions about raising additional funds for these tribunals, government officials understand the distinction between the two and why a multilateral effort to raise voluntary funds for investigation and prosecution of situations of atrocity crimes not falling within the jurisdiction of the ICC is an objective worthy of the government’s support, however small the contribution. Third, I recently co-authored a soon-to-be-released report for the U.S. Holocaust Memorial Museum that examines use of the social bond market for meeting some of the budget requirements of the ICC and organizations dedicated to meeting the needs of victims of atrocity crimes. An earlier Just Security article, presaged some of the factors covered in the report. There may be good reason to explore floating a social bond to cover the annual operating expenses of the STCoA (as well as a different social bond to cover some of the ICC’s annual budget). Social investors would be identified to spur their interest in the STCoA social bond while governments with AAA, AA, or A sovereign credit ratings in the market could be approached to guarantee the bond and attract further commitments from the social investors.  Each year the proceeds of the social bond would be invested by expert managers in a manner that would secure, with investment earnings, part if not all of the operating expenses of the STCoA as well as a discounted interest rate that would be owed annually to the social investors. Enough funds would remain in the investment account to repay the principal to the social investors at the end of the social bond’s term unless the bond principal is rolled over for continued payment of the operating expenses of the STCoA and payment of the discounted interest rate to the social investors each year. The social investors could be a range of institutions, such as pension funds and insurance companies, and wealthy individuals (including among the Ukrainian diaspora). The guarantors of the social bond could include, in addition to some key governments, regional organizations, and even high net worth individuals (again, including among the Ukrainian diaspora). Given the broad international opposition to the Russian aggression against Ukraine, there should be little difficulty in identifying qualified and interested social investors as well as a pool of possible guarantors. Since the social investor pool for the STCoA most likely would not include governments, there would be no pressure on those governments to decide between providing appropriated funds to support their assessments to the ICC and social investor commitments to the STCoA. Any government that would qualify as an A-category guarantor of the social bond would, if it guaranteed the social bond, carry a contingent liability for the amount it agrees to cover in the guarantee. However, given the relatively conservative manner in which the social bond’s proceeds would be managed each year, a call on the guarantee would be highly unlikely. If the guarantee from A-category sovereign credit governments proves too difficult to arrange, the Government of Ukraine could put up some collateral from State assets to underpin its own guarantee of the social bond. Thus, on the three issues of sharing defendants, cooperating together in pursuit of international criminal justice, and managing funding requirements, the co-existence of the ICC and the STCoA is not only possible, but imperative for the future of Ukraine and its right to achieve accountability for the full range of atrocity crimes, including aggression, committed against it in recent years. 

[Editor’s Note: This article is part of a Just Security series, Prosecuting the Crime of Aggression Against Ukraine. All articles in the series can be found here.] The prospect of creating the Special Tribunal for the Crime of Aggression (STCoA) is not as daunting as it may seem. The United Nations has essentially done this before when it negotiated and established of the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). Granted, neither of these tribunals had authority to prosecute the crime of aggression, which would be the sole crime of the STCoA. The SCSL was empowered to prosecute war crimes and crimes against humanity, and the ECCC had jurisdiction over war crimes, crimes against humanity, and genocide. Each tribunal also could prosecute select domestic laws relative to the atrocity situation under investigation. Nevertheless, the tribunals owed their legal existence to an international treaty entered into between the U.N. and the respective government, namely the Sierra Leone Government in the case of the SCSL and the Cambodian Government in the case of the ECCC. This involved (1) drafting a constitutional statute of the tribunal that was enacted into domestic law by the national government, and (2) drafting the U.N. treaty that would incorporate the statute. The judges of each tribunal drafted their respective rules of procedure and evidence. Once established, the STCoA would enjoy support from both the United Nations, acting through the Secretary-General and the General Assembly, and the Government of Ukraine. That legitimacy can prove extremely important in bringing political and military leaders to justice under international and Ukrainian criminal law for the crime of aggression, and for influencing how the International Court of Justice (ICJ) might someday rule on the state responsibility of Russia, and perhaps Belarus, for a war of aggression against Ukraine. The ICJ relied on the International Criminal Tribunal for the former Yugoslavia’s (ICTY) convictions of genocide at Srebrenica to determine Serbia’s violations of the Genocide Convention by failing to prevent genocide at Srebrenica or to transfer Ratko Mladic, a top indictee charged with genocide and complicity in genocide at Srebrenica, to ICTY custody to stand trial. The findings of a special U.N.-backed criminal tribunal regarding the crime of aggression against Ukraine would likely carry similar weight in prospective ICJ deliberations. The detailed provisions of the STCoA statute can readily draw from counterpart language and ideas in the SCSL and ECCC statutes, and from the Rome Statute of the International Criminal Court (ICC), the statutes of the ICTY, the International Criminal Tribunal for Rwanda (ICTR), and the Special Tribunal for Lebanon (STL). The negotiating exercise between U.N. lawyers and Ukrainian officials should be manageable and concluded within a matter of weeks.  This series has already addressed the urgent need and cogent rationale for the STCoA and some of its defining features such as jurisdiction and structure. Here, I raise some additional considerations, including information sharing, victim participation, and outreach efforts. I provided a detailed discussion on these points during the Yale Club roundtable on June 22, 2022. Features of the Tribunal 1. Sharing of Classified Information Because the crime of aggression is a “leadership crime” and the relevant decisions are made at the highest levels of government, military, and sometimes business, it is essential that the STCoA statute include provisions that permit it access to and use of, if only as lead evidence, classified information delivered to the prosecutor by various governments, with conditions. The Rome Statute (Articles 54(3)(e) and 72), the ICC Rules of Procedure and Evidence (Rule 82), and the ICTY Rules of Procedure and Evidence (Rule 70) can serve as useful models. 2. Witness Protection The STCoA will differ in some respects from other international tribunals with regard to witness protection. Those who have witnessed political and military leaders plan and execute the crime of aggression will have been personally close to the high-level decision making process at the time and may need tailored protection. There should be innovative thinking after the STCoA is established as to how it can provide adequate protection for these witnesses, including until long after trials have concluded. For example, this could be a supportive government undertaking covert operations to extract the witness and close family members from Russian territory, establishing secret sanctuary residence outside of Russia, and providing financial support for the duration of their lives. Rule 29 of the ECCC’s Internal Rules can provide guidance on protective measures. The witness protection provisions of the STCoA’s statute should be drafted in a way to incentivize witnesses to come forward and contribute valuable information for either incriminating or exculpatory purposes. 3. Outreach The STCoA very likely will be widely covered by the media, so there will be less need for the tribunal itself to spread word about its proceedings among the general public. However, given the nature of the STCoA’s work and the Russian Government’s use of propaganda, it is reasonable to anticipate that disinformation and misinformation will become a major issue for the STCoA. The STCoA statute need not address details, but outreach within Russia about the work of the STCoA will be necessary. Following its establishment, the STCoA should develop a sophisticated strategy, one that is particularly geared towards social media that penetrates Russian society. The tribunal also should have a portal on its website so that individuals with relevant information can contact the prosecution office. 4. Standing Defense Unit Most of the defendants for the crime of aggression would be very high-level individuals and retain top defense lawyers to represent them. However, a defense unit can deal with uncooperative defendants or obtain counsel for a defendant who cannot afford legal representation. 5. Victim Participation There may be limited utility for a provision in the STCoA’s statute on victim participation mirroring that found in the ICC Rules or the ECCC Internal Rules because the atrocity crimes within their subject-matter jurisdiction victimize individual human beings, while the crime of aggression primarily victimizes States. Yet, at another level, victims – civilians and soldiers on both sides —  survive atrocity crimes and the whole war. It could be impracticable to have all such victims participate, while at the same time, their voices must be heard. Groups and associations representing the victims could play a constructive role, and no doubt any STCoA prosecutor would want to work with those groups to give voice to the suffering that has been inflicted. Russia’s decision to wage an aggressive war has an enormous impact on the lives of individuals and their participation could be an essential part of the proceedings, which might otherwise run the risk of becoming abstract and overly legalistic. A simple format for victim participation should be the goal. Perhaps the STCoA, which we envision to be located in The Hague, could hold some of its trials in Ukraine and enable the Ukrainian public, so many of whom are direct victims of the military conflict, an opportunity to personally witness the trials. On that front, more than 240,000 Cambodians attended the ECCC trial proceedings in Phnom Penh and that experience could serve as a model. Options outside of the STCoA also could be pursued. Victims likely will have the opportunity to participate in ICC proceedings on atrocity crimes committed in Ukraine and those crimes are the progeny of the crime of aggression. Ukraine also could establish a Truth and Reconciliation Commission running parallel to the STCoA, giving victims wide latitude for providing testimony and benefiting from the truth-seeking practices of such a body. 6. Pre-Tribunal Evidence It is imperative that the STCoA’s statute have provisions on evidence collected prior to its establishment, which could be similar to Article 19 of the STL Statute. 7. Trials in absentia  Given the likelihood that Russia’s political and military leaders, including Vladimir Putin, may seclude themselves on Russian territory and be shielded there for the rest of their lives, the issue of trials in absentia is important to consider. The Ukrainian criminal procedure code permits trials in absentia. The STL is the only international tribunal that has allowed such trials (Article 22 of the STL Statute). Negotiators for other international tribunals rejected the idea on fair trial grounds. Rule 61 of the ICTY Rules of Procedure and Evidence could serve as a model as it is anticipated that some of the accused may be beyond the STCoA’s reach. There could be a procedure by which the prosecutor could at least present the evidence publicly without the accused person being present, followed by a trial if and when the individual were eventually arrested and brought to The Hague. 8. Reparations and Seizure and Freezing of Property The STCoA would not be the forum in which to address the overall prospect of Russian reparations for the damages inflicted on Ukraine during the war of aggression, which currently are estimated at nearly $350 billion. Reparations will fall within Russia’s state responsibility and likely will be relevant for the ICJ and other civil proceedings, as well as political negotiations with the Russian Government. Some of the defendants before the STCoA may be among the richest of the Russian oligarchy who backed Putin’s war and will have personal assets worth pursuing as penalties. The STCoA should have the option of seizing the assets of convicted persons, similar to what Article 77 of the Rome Statute permits. Conclusion Timing is everything. States must not perpetually draw out this historic task. Evidence can be impaired during a delayed process of decision making on tribunal design. The deterrent value of the tribunal can have a very short shelf life. The memories of witnesses fade with time and documents have a way of disappearing. The STCoA has a vital role to play for the people of Ukraine and for the peoples of other nations who should never be subjected to the death, injury, and destruction that accompany the crime of aggression.

On the occasion of the International Day of the Victims of Enforced Disappearances, David Scheffer, International Francqui Professor (Spring 2022) at KU Leuven, reviews Jeremy Sarkin’s latest book ‘The Conflict in Syria and the Failure of International Law to Protect People Globally: Mass Atrocities, Enforced Disappearances and Arbitrary Detentions‘ (Routledge). There is a persistent sense of failure in world affairs today. The aspirations of modernity—to make progress in the well-being of both humankind and Planet Earth—are under constant attack and point towards regression rather than progression.  Climate change threatens to change everything in the decades ahead, and not for the better. The availability of clean energy sources, sufficient food and fresh water supplies, and livable habitats has become so problematic that governments and international institutions responsible for the public welfare are not offering much hope. At any moment, another viral outbreak as disruptive if not more catastrophic than COVID-19 can upend any illusions about economic recovery and prosperity across the globe. Add to these existential crises the endless challenge of highly destructive wars (Ukraine), mass atrocities, and natural calamities (often tied to climate change) and caring for the millions of victims who, as a result, are thrust upon the international community or whose very existence is unknown, and the future looks bleak. One can hope for scientific breakthroughs, political enlightenment, and economic booms to reverse this dire course of events, but honestly addressing the causes of our global predicament is essential work in the meantime. That is exactly what Jeremy Julian Sarkin does in his new book entitled, The Conflict in Syria and the Failure of International Law to Protect People Globally: Mass Atrocities, Enforced Disappearances and Arbitrary Detentions (Routledge, 2022). Sarkin has written a manifesto condemning the current state of international law and the failure of the post-World War II and post-Cold War systems of governance to stem the tide of atrocities generating multitudes of victims for whom tangible assistance—to enable them to survive physically or to be identified and rescued from oblivion—is pathetically scant. He zeroes in on two categories of crimes—enforced disappearances and arbitrary detentions—and one situation—the Syrian conflict since 2011—where these crimes have been dominant and barely addressed. Sarkin, who is a professor at NOVA University of Lisbon in Portugal and a Research Fellow in the Department of Criminology at the University of the Free State Bloemfontein, South Africa, is a prolific author and highly regarded scholar among his peers. He served for six years on the United Nations Working Group on Enforced or Involuntary Disappearances and is a New York and South African lawyer. This book clearly reflects his frustration, building during at least the last two decades, about, in his view, the distorted origins and unenforceable tenets of the international legal order in the face of atrocity crimes (genocide, war crimes, crimes against humanity) and in how quite literally to pay any meaningful attention to the victims of these crimes, who number in the tens of millions. Sarkin argues for a victim-centric legal framework and a victim-centric purpose underlying U.N. reactions to atrocities and calamities imperiling the lives of civilians. Since the beginning of the modern era of tribunal-building in the early 1990’s, there has been a very sharp focus on investigating and achieving accountability for the atrocity crimes for a relatively small number of major perpetrators, either acting in the field or as political or military leaders strategising and executing plans for atrocity crimes. This is an exercise much sought by victims who seek justice against such individuals for the horrendous crimes committed against largely civilian populations. Whenever I met with victims as the U.S. Ambassador at Large for War Crimes Issues (1997-2001) or as the U.N. Secretary-General’s Special Expert on U.N. Assistance to the Khmer Rouge Trials (2012-2018), they had one consistent demand: bring the perpetrators to justice. The victims also needed much real-time assistance, but they wanted to see justice done in a courtroom somewhere. Thus during the last three decades international, hybrid, and domestic courts  have been designed to meet this fundamental demand for justice against the perpetrators of atrocity crimes. The outcry from the Ukrainian victim population (in the tens of millions) about the Russian aggression against Ukraine since 2014 and since 24 February 2022 seeks investigation and prosecution of perpetrators operating in the field and in command centers in Russia by international tribunals, foreign national courts exercising universal jurisdiction, and Ukrainian courts. So legal accountability and the building of new or access to existing courts remains a priority of the victims. But in Sarkin’s view, accountability for the commission of atrocity crimes should not distract from the priorities of the victims, how to minimise the violence and calamities that give rise to tens of millions of victims, and how to aid them in the aftermath of crimes. “[W]hile justice is important, there should be greater assistance to individual victims.” (229) Sarkin compares the focus on accountability to major shortcomings in meeting the full corpus of victim needs, including the needs of disappeared victims and those arbitrarily detained. Much of this centers, Sarkin argues, on the failure of outdated and Western-centric international law to focus properly on the rights of victims and the United Nations’ failure to provide protection for survivor populations. Sarkin finds weaknesses in international human rights law (IHRL), international humanitarian law (IHL), and international criminal law: “International law, in general, is weakened—especially when it comes to dealing with conflict and human rights abuses—by issues of state consent, by a system of states ratifying treaties, by having hard and soft law rules that are often not complied with or enforced as well as many others. Also, IHL deals with civilians as a whole and does not deal with a variety of different groups of people, such as those who are the most vulnerable, as IHRL does. This is not to argue that IHRL always does that very well.  In fact, there are lots of gaps and problems. Even more problematically there are very few enforcement options, and, if those mechanisms do take up such cases, they are very few and far between.  There are a lot of issues that IHL does not cover or does not deal with sufficiently, such as women’s issues, for example….” (35) Further, the United Nations, in Sarkin’s view, “remains very weak on providing human rights protection. Where violations occur, the UN prides itself on investigating matters and making recommendations. However, most UN-sanctioned efforts of fact-finding, reporting, recommending and reproaching states where massive violations are occurring—under the auspices of various mandate holders, missions, and ad hoc mechanisms and Special Procedures—have seen noncompliance by states, including the Syrian regime….Ensuring Syria’s compliance and commitment to its international human rights obligations through soft law has achieved little to no success.” (45) One of the major soft law initiatives has been the Responsibility to Protect (R2P) principle enshrined in the non-binding World Summit Outcome Document of the U.N. General Assembly on 24 October 2005 (G.A. Res. 60/1, pars. 138-139, U.N. Doc. A/RES/60/1 (Oct. 24, 2005). The heavily-negotiated text calls on states to protect their own populations from the atrocity crimes of genocide, crimes against humanity (including ethnic cleansing), and war crimes. It calls upon the international community, through the United Nations, to act to protect populations from atrocity crimes, including through collective action with Security Council approval under Chapter VII of the U.N. Charter if peaceful means prove inadequate and the national authorities fail to protect their own people from atrocity crimes. Sarkin condemns the rare application of the full force of R2P during more than 16 years of near-total Security Council gridlock, massive atrocities since 2005, and the principle’s narrow relevance only in the face of atrocity crimes, while it remains irrelevant in the event of aggression, massive human rights violations, and natural calamities or emergencies where the lives of countless innocent civilians are at risk. In short, “international law and the UN have not been sufficiently focused or able to provide protection to people in peril around the world.” (143) Sarkin uses the Syrian conflict, with its enormous range and magnitude of atrocity crimes and human rights violations, particularly enforced disappearances and arbitrary detentions, as his template for analysis of systemic flaws in the international system. He published his book prior to the Russian/Ukraine war of 2022, but one can apply his analysis with equal relevance to the failure of R2P to be activated to authorise the military intervention that would have been required to confront the Russian military invasion to prevent the atrocity crimes that have dominated the aggressive action and inflicted horrendous injury, death, and destruction on the Ukrainian people and their towns and cities. The obvious reason—the certainty of a Russian veto, perhaps joined by China—exemplifies the extreme weakness of R2P as a guiding principle in world affairs. Sarkin proposes the creation of a “new mechanism to conduct searches for disappeared and detained people in Syria and find information for their families.” (208) The mechanism could be established by the United Nations, a regional process, or by states, (211) and financed by states voluntarily with a trust fund. (213) He further describes the proposed new mechanism as having a humanitarian mandate but also a multi-faceted mandate that includes truth and accountability, with perhaps some overlap with other processes, (214) and “a process to collect and centrally collate all of the information from all organisations, the government and other sources.” (216) Bearing in mind his criticism of R2P, Sarkin argues, “New methods need to be found to achieve interventions, maybe outside the umbrella of the UN.” (223) One method within the United Nations would be a standing intervention force of full-time U.N. employees. (224) He argues for restructuring the United Nations by eliminating the General Assembly and replacing it with a bicameral system of a legislative chamber and a chamber to create international law. More resources should be provided to U.N. human rights processes “so that they are able to act to stop the human rights problems that exist around the world. Treaty bodies and special procedures need to be far better resourced and made more independent.” (226) These are ambitious proposals, most of which would confront political firestorms by powerful nations and a stubborn U.N. bureaucracy. But Sarkin puts his case on the table forthrightly and with significant evidence and his views are worthy of serious consideration in both the policy and academic worlds.