Introductory Remarks by Greg Shaffer

Welcome everyone. I am Greg Shaffer, and I am at Georgetown University Law Center. I will chair this panel on the impact of Trump’s election on the war in Ukraine. President Trump has been in office for just short of three months. This panel builds from what ASIL has done with respect to Ukraine, including the trip that we took there in December of 2023, on the 75th anniversary of both the Universal Declaration of Human Rights and the Genocide Convention, and the follow-up symposium we organized with Just Security. Much has taken place since that trip, including since the start of the year. Given the power of the United States militarily and financially, a change in administration in this country has immense implications not only for people in this country, but for people around the world.

This panel is going to address the ways in which the election and return to power of President Trump has impacted the war in Ukraine, the potential for a ceasefire and broader peace, the implications for Ukraine and its sovereignty, Russian accountability for its war of aggression, and international law and institutions more generally.

The United States has been responsible for the most important arms shipments to support Ukraine’s defense as well as other needed financial aid. The United States has been central for NATO policy toward the war, the coordination of sanctions against Russia, and discussions over what to do about the frozen assets of Russia. This panel will explore a series of questions regarding the war, prospects for peace, and the implications for Ukraine and international law under the second Trump administration.

We start with a short trailer of the documentary that was produced when ASIL went to Ukraine to set the stage for the panel discussion. The full, finally edited film will be shown on Thursday, April 17, at 10:30 a.m., in Columbia rooms three and four. If you have not seen it, I urge you to do so. It has been very well received internationally. In fact, it won the prize for the Best Documentary Short Film at the Berlin Film Festival. We are going to see a two-minute trailer of the film now. Then we will turn to the panel that will address where we are today.

That was in December 2023. This panel is going to address where we are now. I am pleased to introduce our four panelists.

Harold Hongju Koh is Sterling Professor of International Law and former Dean of Yale Law School, served as U.S. State Department Legal Adviser and Assistant Secretary of State for Democracy, Human Rights, and Labor. He has been advising Ukraine’s Ministry of Foreign Affairs on international law matters since 2016.

Meg deGuzman is Professor of Law and Codirector of the Institute for International Law and Public Policy at Temple University Beasley School of Law. She also serves as a judge of the United Nations International Residual Mechanism for Criminal Tribunals where she currently sits on the trial Chamber of The Prosecutor v. Félicien Kabuga.

Michael Kelly got held up at a Detroit Airport, so he cannot be with us. Patrick Pearsall kindly agreed to step in at the last moment. Patrick directs the International Reparations and International Law Project at Columbia Law School. He teaches on the subject and has co-edited a book on International Claims Commissions. He was appointed by President Zelenskyy on a task force to think through civil reparations.

Svitlana Starosvit has been with us at ASIL as an International Law Fellow for ASIL’s Lviv Initiative. She is a recent graduate of Harvard Law School’s SJD program. She previously worked for the Ministry of Foreign Affairs of Ukraine, counseling on legal strategies for holding Russia accountable before international courts in the aftermath of its aggression, going back to 2014. She also served in the Ministry of Justice of Ukraine, working on issues of international human rights and humanitarian law.

All of our panelists were with us in Lviv for the joint symposium between ASIL and the Ukrainian Association of International Law. I am going to start with a series of questions for Harold.

Harold, in your view, how have the first three months of Trump’s presidency affected the following: the conduct of the war in Ukraine and the prospects for peace there; the role of the United States and NATO to maintain peace on the European continent; and the broader international legal order as we know it, including the roles of international law and international institutions created after World War II and the end of the Cold War? How does the way in which a ceasefire takes place and the fighting ultimately ceases through some sort of deal augur for peace in Ukraine and Europe, and for the broader international legal order?

Remarks by Harold Hongju Koh

The short answer is that Trump has changed our calculations as international lawyers who care about standing tall for the rule of law in Ukraine, but he has not changed our commitments. I do not think we should assume that anything that we hope to see emerge in Ukraine should change because of Trump’s re-appearance.

Remember, Trump had a twenty-four-hour plan. It is long past twenty-four hours now. He offered a very crude idea. I think he thought that they would do some sort of standstill of fighting; that the United States would threaten to cut off aid; that Zelenskyy would just knuckle under; that the Ukrainians would withdraw from the Kursk Offensive; and he would talk to the North Koreans and they would get out of Russia. He probably thought that from all of that, he would win the Nobel Peace Prize.

That did not happen. On the war front, there have been some horrific recent developments, the Palm Sunday strikes in Sumy, which Trump actually said he considered to be horrible. His special envoy Keith Kellogg said that Putin’s actions crossed any line of decency.

What is also pretty clear is that even though Trump allocates the blame for not getting to peace among Zelenskyy, Putin, and Biden, in fact, his administration is not really getting very far with the ceasefire talks. he latest reports are that Marco Rubio, secretary of state, is losing patience, because, no surprise, the Russians simply want to talk about talks. The only idea they have is a ceasefire or peace at any cost.

Meanwhile—and I think this is very important—in one of the very low moments of my life as an international lawyer, on the third anniversary of Russia’s full-scale invasion of Ukraine, we had, in swift succession, the United States voting at the UN against condemnation of the Russian aggression, President Trump and Vice President Vance bullying President Zelenskyy in the Oval Office to try to get him to sign a minerals deal, and then shortly after that, Secretary of Defense Pete Hegseth threatening to pause intel-sharing arms shipments and cyber support.

But what has actually happened since then is that the very next day, President Zelenskyy went to Europe and an alternative plan emerged. Not peace at any price, but peace with certain guarantees: a durable peace process led by the Europeans. That is a real plan: for a ceasefire followed by a truce, followed by a pact, followed by the introduction of a European peacekeeping force, followed by a plan toward reconstruction, reparations, compensation, and accountability. The challenge right now is to morph Trump’s amorphous plan into the European plan and persuade him that this was his idea.

Essentially, it is a kind of Edinburgh Festival approach to international law. Trump thinks that what he is doing is the main show. But in fact, it may well turn out to be the fringe.

Greg Shaffer

Thanks, Harold. Many maintain that the endgame of the war has really been playing out between Moscow and the United States alone, leaving out Ukraine, leaving out our European allies.

What are the implications for current negotiating procedures and dynamics? Are we witnessing with Ukraine a sort of so-called transactional “America First” approach to the world? How do you view Europe’s responses to date and their prospects and the implications for Ukraine?

Harold Hongju Koh

As we all see watching Trump, he has a very short attention span. In recent weeks, his attention has been devoted to disrupting the world economic order. He has had less time to disrupt the world political order. He has certainly made a series of threatening statements about using force in Panama, possibly against Greenland, and committing U.S. troops involuntarily in Gaza. But all of these claims are starting to fade away as the Europeans and those actually invested in the region assert themselves. But the three key ideas that we, as international lawyers, can promote, as a product of this panel, is: First, nothing about Ukraine without Ukraine. Ukraine has to be at the table. The idea that the United States and Moscow are going to resolve this, and the people whose independence and sustainable future is at stake are not going to participate in the negotiations with those who have been providing them the bulk of their support is ludicrous. Second, there should be no lift of sanctions and unfreezing without accountability, civil and criminal. The truth of it is that most of the frozen assets are held by Europeans, not by the United States. They have indicated no intention to lift those sanctions any time soon. They have already started the flow of $51 billion of interest on their frozen assets to Ukraine to support civilian reconstruction. Third, continuing the path of Ukraine into NATO. Russia has not fired a shot inside of NATO. Putin’s security guarantees in any negotiations are worthless, as we all know. The only thing that is going to provide those security guarantees is for Ukraine to be inside of NATO.

Now interestingly, the Biden administration left behind what they called the “four Ms”: money, munitions, mobilization, and momentum. The truth is, they gave a lot of munitions. The Ukrainians have been fighting with them, and therefore, they have not stopped fighting. The money, a big chunk of it, flowed. Trump has tried to pause it. That is probably unconstitutional and illegal under the Impoundment Control Act. A fair amount of that money is going to get there anyway. Ukraine’s military manpower is obviously still fighting. The momentum is now being sustained by a different group: Europeans led by Keir Starmer, Emmanuel Macron, Friedrich Mertz, and Mark Rutte of NATO. In their effort, they should be supported by global civil society, including the American Society of International law.

Greg Shaffer

Turning to accountability, Meg, how do you view the shift in administration in terms of the prospects for holding Russia and Russians accountable for Russia’s aggression, its war crimes, and the immense damage that it has inflicted in Ukraine?

Given the developments that we are witnessing in the United States today, do you believe that Russia and its leadership will ever face accountability, and, in particular, criminal accountability for the violence wrought on Ukraine, a neighboring state in violation of the central norms of the UN Charter.

Remarks by Meg deGuzman

Thank you, Greg, and thanks to the organizers for putting this panel together. I am speaking today in my individual capacity, not as a judge of the International Residual Mechanism.

I want to start by saying that it was an immense privilege to travel to Lviv with the ASIL delegation.

One of the things that was very clear from that trip—as well as from a subsequent trip that I took to Poland to assist in training Ukrainian prosecutors and judges on crimes related to the environment—is the impressive capacity of the national system to pursue accountability for international crimes, even in the midst of war. In an incredibly short time after the full-scale invasion, Ukraine built up the capacity that has enabled it to open investigations into about 150,000 cases of war crimes and to begin building those cases.

I am optimistic that there will be some accountability, especially through the national system.

In terms of the effect of the Trump administration, there has been some withdrawal of support and funding for those efforts. I do not want to minimize the negative effect of freezing millions of dollars in support, but it is also very clear that the commitment, expertise, and capacity of Ukrainian prosecutors and the judiciary remain incredibly strong.

I will also touch briefly on some other accountability mechanisms. The International Criminal Court (ICC) has opened investigations and issued six arrest warrants pending, including one for President Putin. Under the Biden administration, the United States provided some degree of support for the ICC’s efforts. With the change in administration, however, we are now seeing active opposition to the Court in particular. As I am sure most people in the room know, the United States has imposed sanctions on ICC Prosecutor Karim Khan. The language of those sanctions is quite broad: they apply to Karim Khan and to “any foreign person or organization determined to have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute protected persons defined as US nationals or our allies who have not consented to the ICC’s jurisdiction.”

We are now in a posture of not only just withdrawing support for the ICC’s efforts in Ukraine, but actively opposing against. It is early to know exactly what the effects will be. There were similar sanctions during the first Trump administration that were reversed by the Biden administration, and those caused substantial difficulties for the ICC’s operations. This time, though, the Court is better prepared, so I think the effects may be somewhat mitigated.

There is also a special tribunal for the crime of aggression being developed under the auspices of the Council of Europe. Recently, three key documents were adopted by thirty-eight states, including Ukraine, the Council of Europe, the EU, but also states from other parts of the world, including a draft statute for the tribunal. This is a major development that has taken place even as the U.S. government is actively fighting against international law and accountability efforts. While the documents have not yet been made public, it appears that the tribunal will not conduct in absentia trials and there may be immunity for senior leaders. There are limits to what it may be able accomplish. Still, it is important to emphasize that support for accountability—including for the crime of aggression—remains strong.

Finally, I will mention the role of third party states exercising universal jurisdiction. These efforts have been increasing, particularly in countries like France and Germany. They are using universal jurisdiction more actively, including in regards to crimes committed in Ukraine. I expect this trend will continue and expand.

Overall, while support from the U.S, government has declined—and the loss is significant—there are multiple avenues where accountability efforts continue.

Greg Shaffer

Thank you. Has Europe stepped up financially in terms of support where the United States has stepped away?

Meg deGuzman

To some degree, yes. More than financially, however, it has stepped by reinforcing its commitment to accountability. For example, many states have expressed strong continued support for the ICC—and disapproval of the U.S. sanctions. Europe has also led efforts to establish an aggression tribunal as I mentioned.

Greg Shaffer

Patrick, moving to accountability for the civil damages that Russia has caused, how has international law responded to the necessity to repair an international wrongful act? What is the core responsibility of states? What is the status of the current work on civil accountability? And are these mechanisms, if they are properly stood up, sufficient to accomplish this obligation of state responsibility? If not, what more needs to be done?

Remarks by Patrick Pearsall

Thanks, Greg. I wanted to amplify Meg’s optimism. We do have a good story to tell on the work of international law to repair the international wrong acts by Russia, at least on the civil compensation side.

Oscar Schachter once wrote in a 1977 article about the invisible college of international law. He posited that international law was reasonably diffuse, and that those who practiced international law were kind of an invisible college that was all moving in a certain kind of direction.

We are in a much different place than we were in 1977. The Ukrainian government, in the infancy of the war, just within a matter of a few weeks, activated that invisible college and posed the question to international lawyers, many in this room, how will Russia be held accountable for the economic harms that it is visiting upon Ukraine.

Where an international wrong has been committed, that wrong must be repaired. That is Article 31 of the International Law Commission Draft Articles on State Responsibility. That reparation should be accomplished through compensation if restitution is not available, that is Article 34.

The starting point of this good news story is international law. In this world of a lot of noise, we can take a breath and feel some comfort that international law had an answer. Now the question is how to operationalize that answer. We called together a bunch of scholars and started thinking through what mechanism is best to accomplish this requirement under international law.

We landed on a compensation commission. That is a mechanism that is not unique to this moment. This is a mechanism that is quite ancient. Homer first talks about compensation for war damage and he puts this image on Achilles shield. The greatest warrior in, at that point, the ancient world, but perhaps ever, is shielded by international law, by the reparations. Grotius picked up on that, obviously.

Grotius said, in order to win the future security of combatants—I am paraphrasing—reparation is due for the harm. He understood that in order to win the peace, you have to repair.

The Jay Treaty picked this up and established mixed claims commissions between the United States and the UK, and so on. There have been dozens of examples where states have ended their dispute with a reparations moment.

Now we are at a moment where at least one combatant is unwilling to participate in that process.

All of the processes that I have just described had two willing parties. Think about the UNCC and Iraq’s commitment to repair Kuwait. Here, we are in a unique world of a recalcitrant party and a party that is being injured even at this exact second that I am speaking.

What do we do? We decided to put this question to the UN and put a resolution forward to the UN General Assembly. That was reasonably controversial. I am sure there are many different views in this room as to whether that was a good idea.

The resolution passed. Ninety-four states voted in favor of a UN General Assembly resolution, bypassing the Security Council calling for a Damages Registry to be established to register the damage that was occurring on a daily basis in Ukraine.

That is underway now. The Damages Registry has stood up. It sits in The Hague. I encourage you all to visit the Secretariat. There are dozens of lawyers working on this. It has a website. It is called RD4U, which is Registry of Damage for Ukraine, not a Star Wars character. They are registering claims now. There have been thousands of claims registered.

What that will eventually turn into, how it will be adjudicated, where the funding will come from, these are open questions. But these are questions that are being picked up right now by forty-three to forty-five, depending on which way you count, member states who are working on a multilateral instrument that will establish tricky questions about jurisdiction, tricky questions about funding, rules of procedure.

These are cutting-edge issues. There are no easy answers here. But they are moving forward. They are moving forward with a multilateral instrument. The good news story here is we have a mechanism. We have an international thing that is at least quantifying the trillions of dollars in costs and harm that has occurred.

In many ways, those harms are immeasurable. But it is a tool, an international tool, that at least vindicates that basic principle of international law that reparations are due. The open question, which is the purpose of the panel, is what role the United States will now play. The United States played a very significant role in moving this forward in the previous administration.

What this administration will do is really an open question. We have not seen yet the kinds of things that Meg and Harold talked about in this space. The question of how it will be funded, Harold rightfully noted that the majority of the monies that are frozen and blocked sit in Brussels, not in the United States.

In many ways, this is a European question. The RD4U sits in the Council of Europe under the auspices of Europe. But the question of how Ukraine will be compensated, how this money will be used in any ceasefire, or ultimately durable peace agreement, are all open questions. And what role the United States will play with regard to that mechanism is open as well. Thanks, Greg.

Greg Shaffer

Thank you, Patrick. Svitlana, let us turn to you. What is the view from Ukraine of the political shift in the United States and its implications for the country? Our other panelists have listed many impacts of the return of power of the Trump administration on the war, on the prospects for peace, and on Russian accountability. But how do Ukrainians feel about these questions? Are they unified? Are there divisions in their reactions? Ukrainians, clearly, are such a resilient people, considering everything that they have gone through, as we discovered when we were there. But is there a limit to that resilience when support from the United States is called into question and it begins to fade?

Remarks by Svitlana Starosvit

Thank you, Greg. I would like to start by extending warm greetings from Ukraine: from Kyiv and Olga Butkevych, the president of the Ukrainian Association of International Law, the dear friend of ASIL, who helped ASIL to convene the summit “Stand Tall for the Rule of Law,” which happened almost two years ago and from our friends and colleagues in Lviv who hosted the Summit. They all are sending their warm greetings and say that it is time to reconvene. There are many issues to discuss after the recent political shifts.

Coming back to your question, Greg, Ukraine is tired, for sure, but its spirit remains unbroken. The spirit, which lawyers on this panel experienced almost two years ago, is still there.

The Ukrainian society remains resilient because it knows what it is fighting for. It is fighting for its survival. It is fighting for its right to remain an independent, sovereign nation. It is also the fight for the defense of basic democratic values. I know that the framing of Ukraine’s resistance as a fight for democracy has been extensively criticized. We can and should disagree on what democracy means and what values it has to represent. But what has to be acknowledged is that Ukraine does not want to live in a society that is in constant fear of government punishment for its political activism. It is a very basic need for Ukraine, which is a politically active society.

The fading of support is unfortunate, but my overall sense is that the attitude in Ukraine to the current political shifts is pragmatic. Our path to independence and freedom has never been straightforward. It is too easy to forget these days that the aggression started in 2014. Back then, there were lots of uncertainties. Russia wanted to make many “people’s” republics in Ukraine’s regions. They did not achieve this goal because the people resisted. There was no military support. The attitude in the world was different to Russia’s 2014 aggression against Ukraine; there was no reaction from the international community which Ukraine hoped for. But, nevertheless, we knew what we were standing against. We resisted consolidation of power in one center inside the country two times, at least, over the course of Ukraine’s most recent history of independence. It was just unfair that the external power could still come, backed by force, and say: “No, this is the way you should organize things politically, culturally, and ideologically in your country.” There should be some elementary justice.

In 2022, again, the Ukrainian people had made a choice to resist rather than to surrender. It was not a very easy choice to make. Again, they did not know how the world would react. “Kyiv will fall in 72 hours.” These were the headlines of all major Western newspapers.

That said, help is critical, especially from the United States. Russia doubled down on its strategic goal to force Ukraine knuckle under. As long as Russia keeps advancing, military aid is absolutely critical. Ukraine needs to be able to defend itself. Every time the world stands idly by as the Ukrainian people are fighting for its very survival, Russia feels empowered to continue. Every act of support matters. Economic support, provision of weapons, diplomatic pressure, and academic discussions reinforce Ukraine’s defense. Every act of inaction reinforces Russia.

The overall concern after Trump stepped into power in Ukraine is the return to familiar points of Kremlin’s narrative portraying Ukrainian resilience as futile, leading to the “logical” conclusion: the war must end.

Nobody wants to end this war more than Ukrainians do. The war must end. But it must end because Russia’s aggression must end, not because Ukraine has to finally realize that it faces what seems like an insurmountable adversary it cannot defeat.

We know that we face a way more powerful opponent, but it is certainly not unstoppable. And it certainly does not mean that the only option is: “well, surrender.” There should be a rule of law in world affairs. Not to mention that the reality is that Russia failed to break Ukraine. Russia failed to defeat Ukraine. Now it counts on the international apathy as part of its strategy, in combination with the continued military advances.

For this reason, it is very important to keep attention to what is going on in Ukraine, to have a Ukraine-centric discussion about peace and its various prospects. Achieving peace is a long-term process, but the right place to start is to reject Russia’s narratives. One can agree or disagree with Ukraine’s perspective. But the main focus should be how to enable Ukraine to withstand and roll back Russia’s aggression, not how to force Ukraine into any kind of concessions that will not end the war in the long-term perspective.

What the Ukrainian people are tired of, they are tired of the persistent threat from Russia. The war should end and must not begin again. This is one of the key messages I keep hearing from my colleagues, from my relatives, friends, from all corners of Ukraine.

It has been a long war. It began eleven years ago, although the last three years were absolutely brutal. What does it mean? It means that for many people in Ukraine, and this is sometimes lost in current discussions, for hundreds of thousands of people this war came twice. There are many people who lost everything eleven years ago when Russia occupied certain regions of Ukraine and the same people lost everything again, three years ago when Russia decided to invade the whole country. There are many people who lost their homes twice, who lost their jobs twice; they had to rebuild everything from scratch. Many people lost their relatives and loved ones back then and now. For the majority of Ukrainians, the idea that this will happen again is simply unbearable. The question is: how many times do people have to rebuild their lives over, and over, and over again?

There should be a strategic discussion of how to make this happen, how to ensure this war ends without chances for Russia to come back. It is on our borders. We are absolutely conscious of that. At the same time, Ukraine is gone for Russia. It is gone mentally, ideologically, politically, culturally. In every possible way, Ukraine is gone for Russia.

Russia should not just be allowed to keep using threats and brutal force to change the will of people and to curtail their will to resist and the ability to do politics without checking in with Moscow.

Greg Shaffer

Thank you. Any responses?

Harold Hongju Koh

On a grand scale, when the inauguration was about to happen, there was a lot of speculation that there would be a great power alliance to destroy international law: that you would have Trump, and Putin, and Xi Jinping all collaborating to actively destroy the institutions of international law, and that this meant doom for Ukraine. But already you are seeing tensions between Trump and Putin. After they refused to make any sort of agreement about the ceasefire, Trump said, “I am very angry with Putin.” Xi Jinping has just imposed 84 percent counter-tariffs against Trump. Trump himself is engaging all over the American domestic landscape with very dubious claims of power and being sued.

There have now been well over fifty judicial orders declaring various actions of his illegal and unconstitutional. The fact of the matter is that domestic and international law are much more resilient and much bigger than these individuals, and can outlast them. The Trump officials may try to withdraw from institutions and treaties, but they cannot withdraw from customary international law. They cannot withdraw from peremptory norms.

At the end of the day, naked aggression and war crimes do not become more tolerable because their abuse has been so prolonged, or because we have leaders who do not care about the rule of law. That is what the society is for. What matters is that we care about it. It is up to us to sustain it, even if we happen to have elected or unelected officials who do not.

Greg Shaffer

Let me say a few words to wrap up. First, thank you all for coming. I know that many of you in the audience are doing important work on these issues. This panel brings to mind a saying, which has meant a lot to me—that even in the darkest of times where there is a pessimism of the intellect, what is very important is to maintain the optimism of the will. At times, people say, we are moving back to an interwar period, which led to such great catastrophes. They compare where we are today with then. But what has been pointed out by this panel is the ongoing resilience of institutions. What is different from the interwar period is that we have had important developments with the creation and expansion of international institutions and international law which helps to hold the acts of Russia accountable. There is an institutional stickiness to these developments that can persevere and that provides hope.

It is important to see that history has a long arc. The fact that President Duterte now has been arrested and is being held accountable, that is significant. The accountability of Russia for its crimes too will be a question for the future. We need to be thinking about these processes over time. Sociologists have developed an important concept, that of historical memory. Everything that we are doing now is central for constructing and retaining the historical memory of what has taken place in Ukraine, of Russia’s war of aggression and the violence it has inflicted. The documentation of the crimes of Russia’s aggression continues to take place.

Thanks to all of you in this community standing up for the rule of law. Thank you for being part of this. Let us conclude by thanking our panelists.