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May 24, 2023

Ukraine War Crimes Investigations and Prosecutions

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Ukrainian Prosecutor General Andriy Kostin stated that his office has registered approximately 80,000 incidents of potential war crimes.

Ukrainian Prosecutor General Andriy Kostin stated that his office has registered approximately 80,000 incidents of potential war crimes.

More than a year into the Russian invasion of Ukraine, reports of atrocities being committed by Russian forces, including the killing of unarmed civilians and bombing of hospitals and schools, continue to dominate the news.

Ukrainian Prosecutor General Andriy Kostin, at a recent hearing of the House Foreign Affairs Committee, stated that his office has registered approximately 80,000 incidents of potential war crimes, and 31 Russians to date have been convicted of war crimes in Ukrainian courts.

The International Criminal Court (ICC) is also investigating potential war crimes and crimes against humanity committed in Ukraine. The ICC recently issued an arrest warrant charging President Putin and another Russian Federation official with war crimes in response to the forcible transfer of Ukrainian children to Russian territory. Given the scope of ongoing activities, both Ukraine’s justice system and the ICC face continuing challenges with resources and evidence collection.

Recognizing this need, Congress amended key provisions in U.S. law to expand authority to share information with, and provide assistance to, the ICC for Ukraine-related investigations as a part of the  FY 2023 Consolidated Appropriations Act enacted in December 2022. However, recent reports indicate that the Administration has not yet utilized the full extent of this authority, primarily due to objections by the Department of Defense. In response, ABA President Deborah Enix-Ross sent a letter to President Biden on April 6th urging the Administration to release to the ICC all relevant evidence in its possession that might advance the ICC’s investigation of potential atrocity crimes in Ukraine.  

The Administration’s failure to engage fully with the ICC on this issue has been a matter of bipartisan concern in Congress. During a Senate Judiciary Committee hearing on April 19th regarding accountability for atrocity crimes in Ukraine, both Chairman Dick Durbin (D-IL) and Ranking Member Lindsey Graham (R-SC) expressed dismay that the Administration has not sufficiently exercised its authority under the law to share intelligence and other evidence that could be provided by the Department of Defense. The ABA submitted a statement for the hearing reiterating support for the U.S. to provide additional evidence and assistance to the ICC and recommending several other actions necessary to ensure accountability for perpetrators of atrocity crimes. The ABA’s recommendations include supporting the enactment of legislation to incorporate crimes against humanity into the U.S. criminal code.

In her testimony during the hearing, Deputy Attorney General Lisa Monaco echoed the need to address this gap in U.S. law, stating that “[m]embers of Russia’s forces have committed crimes against humanity as defined under international law; however, the United States does not currently have a statute defining crimes against humanity under U.S. law that would enable us to bring our own investigations and prosecutions for these horrific acts.” She urged committee members to expand the tools available to the Department of Justice by granting federal courts jurisdiction over crimes against humanity.

Congress recently took a similar step with regard to war crimes by passing the Justice for Victims of War Crimes Act. This ABA-supported bipartisan bill updated the war crimes statute to enable prosecution of war criminals in the United States regardless of the nationality of the perpetrator or victim. Enactment of a crimes against humanity statute would further help ensure that perpetrators of atrocity crimes cannot find safe haven in the United States.

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