Russia

When the new Russia emerged from the wreckage of the Soviet Union in 1991, it was widely expected to embark on a democratic transition. In the then dominant Western narrative, it had no alternative if it hoped to thrive as a major power in the twenty-first century. Liberal democracy had prevailed in the titanic ideological struggle of the twentieth century, vanquishing communism as a viable form of political organization in the Cold War less than fifty years after it had crushed fascism in the Second World War. Russian president Boris Yeltsin and his lieutenants seemingly shared that perspective, vowing to build a strong, democratic Russia. Today, the dream of a democratic future has evaporated. The country’s autocratic past has reasserted itself under current president Vladimir Putin. Legislatures and courts from the national to the local level have been stripped of whatever political autonomy they once might have had. The media have largely been turned into mouthpieces for Kremlin propaganda. Civil society has been eviscerated. Opposition leaders have been forced into exile or imprisoned, their organizations ruthlessly gutted. Elections are neither free nor fair. What went wrong? Correcting the Historical Narrative Before proceeding, it is necessary to dispel one widespread myth about Russia’s democratic journey. Putin did not reverse the democratic experiment; he only quickened the pace of the authoritarian revival. The reversal began under his predecessor, even though Yeltsin was initially hailed in the West as a great democratic reformer. In retrospect, the high point of Russia’s democratization effort was reached in the last years of the Soviet Union. It was Soviet leader Mikhail Gorbachev who introduced “real politics” into Russia by stripping the Communist Party of its monopoly on legitimate political activity. He ended censorship for all practical purposes. He introduced competitive elections. To this day, the elections of the late Soviet period—to the Soviet Congress of People’s Deputies in 1989, the Russian Congress of People’s Deputies in 1990, and the Russian presidency in 1991—remain the freest and fairest in Russian history. They are also the ones that garnered the greatest enthusiasm, as Russians hoped to create a government that was truly accountable to the people. Gorbachev’s reforms, however, led to the collapse of the country, largely because he could not master the political forces of reaction and radicalism he had unleashed.  Yeltsin did not pick up where Gorbachev left off and do him one better, as the contemporary Western narrative claimed. Rather, he presided over the crumbling of the central state apparatus, as a bitter struggle erupted over the division of power and property in a country suddenly freed from the political and economic shackles of the Soviet totalitarian system. During the process, vast segments of the government were privatized for personal gain. Yeltsin defeated the legislature in a power struggle and then instituted a constitutional reform that created a powerful presidency that Putin would subsequently exploit to hasten Russia down the autocratic path. In short, the chaos of the Yeltsin period created a simulacrum of freedom but precluded laying the foundation of a well-ordered democratic polity. Putin restored order but in an antidemocratic fashion. Democracy Averted Why, then, did democracy fail to take root in post-Soviet Russia? The answer lies in Russia’s structure and the character of its would-be democratic leaders. Structurally, in the first post-Soviet decade Russian society lacked the building blocks of a true democracy. The atomized population of the Soviet period was slow to consolidate into classes and socioeconomic groups with well-defined interests that could be articulated in the political realm. The political elite was largely drawn from the second and third echelon of the old Soviet elite, with no principled commitment to democracy. The Soviet professional classes—teachers, doctors, lawyers, engineers—that yearned for a more open society were ravaged by Yeltsin’s radical economic reforms. As a result, politics was dominated by so-called Kremlin clans, political-economic coalitions centered on leading political figures that controlled major financial and industrial resources, media assets, and security forces. They struggled over the division of power and property with little concern for democratic niceties. As the Russian economy began to recover in the 2000s, professional classes grew in size. But their democratic potential was impaired by the lack of well-protected property rights that would have provided the independent base of wealth and power needed to challenge the state. To the contrary, the majority of the population remains directly or indirectly dependent on the state for their well-being—they work for the government or state-owned enterprises or nominally private enterprises that serve the state, they live in one-company towns that rely on government orders for survival, or they are dependent on state transfers to maintain their standard of living. The structural impediments to democratic development were reinforced by the inadequacies of would-be democratic leaders. From the moment the new Russia emerged, internecine, often petty, struggles have prevented them from uniting for electoral purposes. By the early 2000s, this behavior had prevented their parties from gaining enough votes to cross the threshold for representation in the Duma or to win regional or municipal elections. Their electoral appeal was further diminished by their inability to connect with broad segments of the population, for which, as intellectuals, they often had little more than disdain. They spoke of lofty ideals, but rarely of how they could help people deal with their practical needs. Arguments that socioeconomic difficulties were a consequence of limited democracy and inadequate reforms fell on deaf ears, as an increasing majority of the people came to associate the profound systemic crisis of the 1990s with the democratic reforms urged by the West. The Navalny Threat Alexey Navalny is that rare opposition figure who could break out of this mold and connect democratic longings with popular discontent. He did this by exposing the deep corruption of high-ranking state officials—he denounced the ruling party as a “party of crooks and thieves.”   That resonated with a broad segment of society by providing it with a credible explanation of its plight. Blessed with extraordinary organizational and media skills, he created a country-wide political network and proved particularly adept at attracting young people. He used those skills to organize country-wide protests at a scale not seen since the first years of post-Soviet Russia. He also introduced the idea of “smart voting”—providing support for the opposition candidate, regardless of party affiliation, mostly likely to defeat a Kremlin favorite —that enabled opposition figures to win seats in regional legislatures, including in Moscow itself. Navalny may have posed no immediate threat, but he created a scalable model that could eventually challenge the Kremlin’s domination of the political system. That is why Putin moved against him; following a failed assassination attempt, Navalny was given a long sentence in a penal colony, and the war in Ukraine provided the pretext for dispersing Navalny’s grassroots political organization. Navalny’s fate underscores the vast coercive powers of the Russian state, which is one final reason why Russia’s democratic transition failed. There are a few signs that those powers are about to atrophy, but for the moment, Russian democracy appears to be a distant dream.         

Since its emergence as an independent state in 1991, Ukraine has made little progress in consolidating democratic rule. A powerful oligarchy has dominated the country’s politics and economy. Corruption has been rife, property rights circumscribed, media independence restricted, and rule of law impaired. Popular uprisings against corrupt leaders in 2004 and 2013–2014 raised hopes of significant reforms that faded as oligarchic rule reasserted itself. To be sure, Ukraine performs much better on all these measures than Russia does. Nevertheless, Freedom House has consistently rated Ukraine as “partly free” (while rating Russia as “not free”). Russia’s massive invasion last February changed Ukraine’s image in the West overnight; it became seen as the brave defender of its, and the West’s, freedom against a Russian authoritarian and imperialist onslaught. In June, the European Union accorded Ukraine candidate status, although it was generally recognized it would take years for it to qualify for membership. But the problems that have plagued Ukraine’s democratic trajectory have not disappeared, and they will attract greater attention whenever the war dies down. Wartime conditions always put pressure on democratic rights, as the exigencies of national security and, in Ukraine’s case, survival take precedence over other concerns. That is true for any country. Americans have to think back no further than to the Patriot Act passed in the wake of the 9/11 terrorist attacks that gave the government enhanced surveillance rights domestically. The stakes are immeasurably higher in a country like Ukraine, where democracy is far from consolidated. Martial law is clearly justifiable in the face of Russia’s invasion, but the temptation to abuse it for purposes that go beyond evicting the invader is great. The challenges facing Ukraine are complicated by its demography, pattern of settlement, and deep historical ties to Russia. Some twelve million ethnic Russians and many more Russian speakers are Ukrainian citizens, with high concentrations in the south and east of the country, where the fighting is most intense. Voters in those regions were the base of the political support for the pre-war pro-Russian opposition parties, which claimed dozens of seats in the national parliament, not to speak of regional legislative and executive bodies. Before the invasion, polls revealed substantial support for close political and economic ties with Russia, even after its seizure of Crimea and instigation of rebellion in the Donbas. That support was one reason why the Kremlin erroneously expected its troops to be welcomed with flowers on its march into Kyiv. At the same time, Russian influence was entrenched in government, business, and cultural circles. The Russian special services, it was widely believed, had penetrated key national security agencies including the military and intelligence services. The Ukrainian Orthodox Church (UOC), which was part of the larger Russian Orthodox Church based in Moscow, was the largest church in Ukraine, substantially larger than the autocephalous Orthodox Church of Ukraine (OCU). Ukrainian oligarchs and their Russian counterparts cut corrupt deals, especially in the energy sector. It is imperative for Kyiv to shut down Moscow’s influence operations and intelligence assets; the challenge is to do so without encroaching too heavily on political and civil rights or alienating ethnic Russian and Russian-speaking citizens. Three matters illustrate the conundrum: the media, political parties, and church affairs. Since Ukraine regained its independence in 1991, the media have been free but not independent. They could express a wide variety of opinions, but they were generally controlled by oligarchs, who used them to advance their own political and economic agendas. Among them was Viktor Medvedchuk, a leading political figure reputedly with close ties to Russian president Vladimir Putin. His media had long presented views that aligned with the Kremlin’s. In February 2021—a year before Russia’s invasion—the National Security and Defense Council shut down three of his TV stations on the grounds that they threatened Ukraine’s national security interests. The Council did not go through the courts, which is the standard procedure, out of concern that it would take too long. That move, many Western observers contended, sent a worrying sign to other media. And indeed, political pressure on media critical of the government has increa in the months after Russia’s invasion. President Volodymyr Zelenskyy consolidated all TV platforms in Ukraine into one state channel in July. Then, last December, the parliament passed a law osed, especiallyn media regulation that the European Federation of Journalists claimed contradicted European press freedom standards as the independence of the state regulator could not be guaranteed. As concerns about media freedom mounted, Zelenskyy’s government banned the activities of eleven Ukrainian political parties because of alleged links to Russia for as long as Ukraine was under martial law. Most of them were small, but the Opposition Platform for Life held 44 of the 450 seats in the national parliament. Not coincidently, this party is associated with Medvedchuk. The oligarch is, to be sure, an unsavory figure, but the party represented views on minority rights, Ukraine’s neutrality, and commercial ties with Russia that were popular with voters in Ukraine’s south and east, at least until Russia invaded. The invasion alone was probably sufficient to preclude the survival of any “pro-Russian” party in Ukraine’s south and east, as popular sentiment shifted dramatically almost overnight. By May of last year, less than 5 percent of the population held positive views of Russia; support for joining NATO had soared to record highs. More than half identified Ukrainian as their native language.  In this light, the ban did not so much change the political situation as confirm the reality on the ground. That said, Kyiv still needs to find a way to bring the people of the south and east back into the political process, now that the previous political network has been demolished. That will be critical to cementing the loyalty of those regions to Ukraine as a whole. The church issue has proved to be the most delicate. After the invasion, the UOC declared independence from the Russian Orthodox Church, and many priests stopped mentioning Russian Patriarch Kirill in their public prayers. Yet many clergymen have provided intelligence, propaganda, and other support for the invaders. Some have collaborated with the Russian occupiers, and many fled to Russia as Russian forces withdrew from Kharkiv and Kherson last fall. Those actions cast suspicion on the church as a whole. In response, Kyiv has launched investigations of UOC churches and monasteries across the country. It is considering a draft law that would ban “religious organizations affiliated with centers of influence in the Russian Federation.” Kyiv is rightfully concerned about the activities of some clergy affiliated with the UOC, but it should tread carefully. The UOC has shown considerable resilience in the face of this pressure. Only 10 percent of the UOC parishes have shifted their affiliation to the OCU since the invasion. A crackdown on the UOC as an institution will likely meet stiff resistance from its congregants and raise alarms about religious freedoms. Finding the right balance between striking out against Russian influence and respecting fundamental freedoms will test the Ukrainian government for the duration of the war and likely beyond. But it is critical that it find that balance. Winning the war—bringing it to an end on acceptable terms—is rightfully the immediate focus, and that calls for a concerted struggle against pernicious Russian influence operations. But winning the peace, consolidating democracy in post-conflict Ukraine and anchoring the country in the West, is the greater victory.  Kyiv needs to take care that it does not jeopardize the latter with the steps it is now taking to combat Russian influence.

The Russia-Ukraine war has implications for the Middle East, Europe, and Asia and of course for U.S. foreign policy. In this speech I addressed them briefly.

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.

Ukraine has withstood and repelled the mighty Russian military through Western support, Russian blundering, and its own resourcefulness. However, the circumstances could be changing.