Merrick Garland: Americans have a “personal stake” in rule of law

Americans should have a stake in the success of democracy abroad, U.S. Attorney General Merrick Garland told a gathering of lawyers in Denver on Monday, noting that the U.S. Justice Department is cooperating with the International Criminal Court and supporting Ukrainian prosecutors carrying out war crime investigations.

Congress recently allowed for new U.S. 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.

“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.

Garland spoke mainly about the Department of Justice’s focus on war crimes arising from Russia’s invasion of Ukraine in February 2021 — which he said he couldn’t have anticipated would define his tenure when President Joe Biden nominated him a month earlier.

“War criminals will find no refuge in America,” he said.

Appointed by President Bill Clinton, Garland served on the federal D.C. Circuit Court of Appeals from 1997 until his nomination as attorney general. He also oversaw the investigation and prosecution of the Oklahoma City bombing.

President Barack Obama nominated Garland to the Supreme Court in 2016 to replace the late Justice Antonin Scalia. But the Republican majority in the Senate at the time decided not to give Garland a confirmation hearing, and the seat eventually went to Justice Neil Gorsuch instead after Donald Trump took office.

In his speech, Garland outlined a few changes since the beginning of the war in Ukraine that have expanded the Department of Justice’s ability to indict and prosecute war criminals. One law change gave jurisdiction to the Justice Department over people within the U.S. from any country who are suspected of war crimes. Before Congress passed the Justice for Victims of War Crimes Act, the federal government had jurisdiction only if the offense was committed in the U.S. or if the victim or perpetrator is a U.S. national or servicemember, according to the New York Times.

Garland urged the bar association to support the recently established Victim-Witness Coordination Centre in Ukraine — created by the country’s prosecutor general, Andriy Kostin — which is meant to address the needs people displaced and harmed by the Russian occupation. 

He said ABA attorneys could play a critical role in lending help to heavy workloads, including documenting harms suffered, securing reparations and filing claims for damages with a recently created registry.

“The new center would greatly benefit from help from non-governmental organizations,” he said.

He also appointed a prosecutor to serve at the International Centre for the Prosecution of the Crime of Aggression Against Ukraine, which opened last month in The Hague to support nations building cases against senior Russian leaders. The center 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.

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 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 choked up as he spoke about members of his family, including his grandparents and mother-in-law, who fled to the U.S. to escape anti-Semitic persecution in Nazi-era Europe. The rule of law is instrumental in seeking justice for victims, he said.

Other relatives were killed by the Nazis, he said. 

“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.”

He added: “As Americans, we have a personal stake in this work, and the success of democracy and the rule of law at home and abroad.”

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