Senate can help Ukraine by confirming Beth Van Schaack now

Lithuania has asked the International Criminal Court (ICC) to investigate alleged crimes against humanity and war crimes committed by Russian and Belarussian officials, as hundreds of thousands of Ukrainian refugees flee the country en masse following Russia’s unlawful attack on Ukraine. An unprecedented 38 other countries joined, including the UK, France, and Germany as well as others bordering Ukraine including Poland, Romania and the Slovak Republic. Lithuania’s prime minister, Ingrida Simonyte, told the Washington Post: “What Putin is doing is just a murder and nothing else, and I hope he will be [prosecuted] in The Hague.”

The U.S. Senate should join Lithuania’s fearless efforts seeking justice for Ukraine by confirming — without delay — President Biden’s nomination of Dr. Beth Van Schaack as the first woman U.S. Ambassador at Large for Global Criminal Justice.

Lithuania, which shares its eastern border with Belarus, responded to the call from ICC Prosecutor Karim Kahn for a member State to refer the situation in Ukraine so he could immediately launch an investigation. The Prosecutor’s office has examined alleged war crimes and crimes against humanity in Crimea and eastern Ukraine since 2014 at Ukraine’s invitation, but an official investigation cannot start without ICC judges’ approval. Ukraine is not a member of the ICC, so Lithuania’s referral allows Kahn to move forward now in the face of a rapidly escalating war without that extra step. The Prosecutor has announced that “our work in the collection of evidence has now commenced” and that he would be investigating genocide as well. 

Van Schaack’s confirmation would build upon the overwhelming support of Ukraine’s allies for the prosecutor’s investigation by sending a clear signal to the world that the U.S. is ready to reclaim its historic leadership role in supporting justice for atrocity crimes, including at the ICC, even though the U.S. is not an ICC member. 

As Van Schaack noted in her testimony before the U.S. Senate Foreign Relations Committee on Jan. 12, “[t]he United States was present at the founding of the field of international justice” — and she pledged to build upon this “proud Nuremberg legacy within contemporary U.S. foreign policy.”

With Van Schaack in office, the U.S. can provide pragmatic, targeted support to the ICC prosecutor on specific cases that align with U.S. interests, seeking accountability for massive crimes such as those currently happening in Ukraine. For example, the U.S. can support the prosecutor’s office as it seeks to preserve evidence of crimes being documented by courageous individuals on the ground in the face of devastating expansion of the conflict and reports of war crimes, including Russia’s use of illegal, indiscriminate weapons and killing of civilians. As it has done in the past, the U.S. can further facilitate the prosecutor’s work through diplomacy, surrender of ICC fugitives to the court, and sharing of expertise, among other things. Further, because the ICC does not have jurisdiction over aggression by Russia, which is not a member of the ICC, she will be able to consider proposals to set up a dedicated international tribunal, as the U.S. has done in the past for other parts of the world including the former Yugoslavia, Rwanda and Cambodia. 

There is clear bipartisan agreement in Congress on the need for accountability for atrocity crimes, and Van Schaack is exactly the person the U.S. government needs to coordinate its efforts towards that goal. 

As noted by four past U.S. ambassadors for global criminal justice, Van Schaack possesses — abundantly — the wisdom and expertise to lead and facilitate all efforts towards making sure there is no impunity for the horrific situation in Ukraine and in other atrocity situations around the world. She is an accomplished international law professor at Stanford Law and former deputy ambassador in the U.S. State Department’s Office of Global Criminal Justice. She has been a member of the U.S. Department of State’s Advisory Council on International Law, served on the United States inter-agency delegation to the International Criminal Court Review Conference, and worked with the prosecutor’s office at the Yugoslav tribunal in The Hague.

In his State of the Union address, President Biden called on everyone in the chamber to “send an unmistakable signal to Ukraine and to the world… and show that, yes, we the United States of America stand with the Ukrainian people.” The U.S. Senate can and should do so now by confirming Dr. Van Schaack as our next Global Criminal Justice Ambassador.

Hannah R. Garry of the University of Southern California Gould School of Law is a scholar and teacher of international criminal law and the founding director of the USC International Human Rights Clinic. She has practiced for nearly 20 years, including before the International Criminal Court, the Yugoslav Tribunal, the Rwanda Tribunal, the Cambodia Tribunal and the Special Tribunal for Lebanon. She is currently a U.S. Fulbright Scholar in Oslo.