US Justice Department collaborates with ICC in Ukraine war crime investigations

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The US Justice Department is cooperating with the International Criminal Court and supporting Ukrainian prosecutors carrying out war crime investigations, Attorney General Merrick Garland said Monday as he reaffirmed his department’s aid more than a year after the Russian invasion.

Congress recently allowed for new US flexibility in assisting the court with investigations into foreign nationals related to Ukraine, and the Justice Department will be a key part of the United States’ cooperation, Garland said.

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“We are not waiting for the hostilities to end before pursuing justice and accountability. We are working closely with our international partners to gather evidence and build cases so that we are ready when the time comes to hold the perpetrators accountable,” he said in a speech to the American Bar Association in Denver.

He appointed a prosecutor to serve at a center opened last month in The Hague to support nations building cases against senior Russian leaders for the crime of aggression. International Center for the Prosecution of the Crime of Aggression will not issue indictments or arrest warrants for suspects but will instead support investigations already underway in Ukraine, Estonia, Latvia, Lithuania and Poland.

The ICC does not have jurisdiction to prosecute aggression in Ukraine because Russia and Ukraine have not ratified the Rome Statute that founded the court, though Ukraine’s prosecutor general has said they plan to join.

The United States also is not an ICC member state. Since the Treaty of Rome, which established the court, took effect, successive US administrations beginning during Bill Clinton’s presidency have taken a largely hands off approach toward the ICC due to concerns it might open investigations and prosecute American soldiers or senior officials.

Although it is not a member of the court, the US has cooperated with the ICC in the past on war crimes issues, notably during the Obama administration when Washington contributed evidence to the investigation into atrocities allegedly committed by the Lord’s Resistance Army in Uganda and surrounding states in east Africa.

However, American antipathy toward the tribunal reached new heights during the Trump administration when it imposed sanctions on the former ICC chief prosecutor and several aides for pursuing investigations into alleged war crimes committed by US troops in Afghanistan and Iraq and Israeli servicemembers in the West Bank and Gaza.

The Biden administration rescinded those sanctions shortly after taking office and its decision to actively assist the court with Ukraine investigations marks another step toward cooperation with the ICC.

The Justice Department is giving wide-ranging assistance to Ukraine, from training on prosecuting environmental crimes to help developing a secure electronic case-management system for more than 90,000 suspected atrocity crimes. Garland also touted the $500 million seized assets and over three dozen indictments the department has handed down to enforce sanctions.

“Ukraine must do three things simultaneously: it must fight a war; it must investigate war crimes; and it must ensure that a just society comes out on the other side of the war,” he said. The Justice Department is “honored to stand with them.”

Garland also encouraged more private lawyers to volunteer to help Ukrainian victims. He recalled how his grandmother and his wife’s family were able to flee Europe as refugees to the United States and avoid the Holocaust. Other relatives were killed by the Nazis.

“We do not know if anyone involved in their deaths were held accountable,” Garland said. “The families of the victims of the current atrocities in Ukraine deserve to know what happened to their loved ones. They deserve justice.”

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