Expanding U.S. Prosecutorial Power Over International War Crimes
Picture of a sunrise at the United States Capitol building, provided by the Office of Congressman Robert Garcia via his House website
By: Grace Lin, Staff Editor
Passed following an address by Ukraine’s leader and signed into the law in January 2023, the Justice for Victims of War Crimes Act authorizes the U.S. Justice Department to prosecute foreign nationals in the United States who are suspected of war crimes, even if the victims were not Americans, or the crimes were committed abroad. This blog post covers the legislation’s changes from its predecessor before discussing its significance in expanding U.S. prosecutorial power over international war crimes.
On January 5, 2023, U.S. President Joe Biden signed into law the Justice for Victims of War Crimes Act, after it was introduced three months into the Russian invasion of Ukraine. This law expands the scope of federal prosecution power for international war crimes by authorizing the U.S. Department of Justice to prosecute suspected war criminals who are in the United States, regardless of the nationality of the victim or the perpetrator, or where the crime was committed. The unanimous and speedy Congressional approval of the bill came one day after Ukrainian President Volodymyr Zelenskyy’s joint address to the Congress, where he condemned the atrocities committed by President Vladimir Putin’s Russia and appealed for bipartisan support for his country.
History of U.S. Prosecution Over War Crimes
This law marks an important expansion of the U.S. prosecutorial power over international war crimes. Its predecessor, the War Crimes Act (18 U.S.C. § 2441), was signed into law in 1996 by President Bill Clinton and allowed the prosecution of war crime offenses committed anywhere, whether inside or outside of the United States if the victim or offender was a U.S. national or service member. This meant that war crimes committed outside of the United States against non-U.S. citizens were not justiciable in the United States, even if the perpetrators were residing in the country. Under the former law, Russian troops in Ukraine, committing war crimes against Ukrainians, would have been able to evade prosecution for their crimes abroad, even if they were to enter the United States. This limited jurisdiction effectively rendered the 1996 law a “dead letter” law, as there was not a single prosecution based on the statute in the 26 years since its enactment.
Instead, the United States has only been able to resort to its immigration and counterterrorism laws to bring forward charges against those suspected of war crimes. Notably, the man known as the “General Dragon Master,” accused of committing atrocities during the Second Liberian Civil War, was only charged with using a fraudulently-obtained immigration document instead of being held accountable for his war crimes. Similarly, a federal judge was only able to sentence a commander of the Dos Erres Massacre Squad under charges of naturalization fraud rather than the atrocities he committed. The loopholes embedded in the 1996 War Crimes Act have essentially allowed these individuals to treat the United States as a safe haven where they can live and travel without the threat of domestic prosecution.
Changes and Developments Under the New War Crimes Act
The new law closes the legal loophole under the former War Crimes Act by broadening federal jurisdiction over alleged war criminals regardless of their nationality or the location of the offenses, as long as they are located within U.S. territory. This would allow the United States to prosecute war crimes committed in Ukraine if the perpetrators were to enter the country and sufficient evidence is gathered to support an indictment. The expanded jurisdiction may be particularly poignant in the possible scenarios in modern warfare where non-Americans belonging to military groups or contractors may be based in the United States while orchestrating, directing or aiding in the commission of war crimes overseas.
Additionally, the legislation removes any statute of limitations for all war crimes, which ensures prolonged access for victims of war crimes to bring their claims. Under the former statute, war crimes were subject to the general criminal statute of limitations of five years, except when the crime resulted in death. However, the Act does not have retroactive application, meaning that it will not cover any war crimes that were committed prior to its adoption.
Lastly, the new law includes a requirement that the Attorney General, or the Deputy Attorney General, provide a written certification that the prosecution by the United States “is in the public interest and necessary to secure substantial justice.” Despite the certification requirement being a new addition, it would likely not add a greater burden on prosecution, especially for cases with strong inter-governmental consensus on the need for accountability against perpetrators, such as the case for Russian perpetrators in Ukraine.
In addition to granting increased prosecutorial power to the United States for international crimes, the legislation also allows the United States to comply with the international legal code and satisfy its obligations set out under the 1949 Geneva Conventions, which require parties to take action against any war criminals found within their jurisdiction. It also better aligns U.S. jurisdiction and complements existing domestic laws on genocide, torture, and the recruitment of child soldiers, which have all encompassed alleged perpetrators in U.S. territory regardless of their nationality. Moreover, it sends a message of timely deterrence to the Russian forces in Ukraine, as well as urging other jurisdictions and nations to follow suit and bring international war criminals to justice.
Recommendations for the Future
Despite the progress in preserving international justice that may be achieved under the new act, human rights organizations and commentators continue to advocate for more legislative gap-closing on crimes against humanity. The initial proposal of the act, as put forth by Senate Richard Durbin (D-IL), encompassed adding crimes against humanity to the criminal code; expanding the Torture Victim Protection Act to include civil causes of action of genocide, war crimes, and crimes against humanity; and amending the Immigration and Nationality Act to make war crimes and crimes against humanity grounds for inadmissibility. None of these proposed elements, which would mitigate the current legislative gap criminalizing crimes against humanity, made it to the final act.
Critics also say that the U.S. government could provide more support to accountability and enforcement efforts undertaken by other jurisdictions and international courts, in particular the International Criminal Court (ICC), which has already begun an investigation in Ukraine. Though Congress and the Biden administration have vocalized their support for ICC’s investigation, the United States has long sustained jurisdictional objections against the court. Removing such legislative obstacles would not only more effectively buttress the ICC and its operations, but also demonstrate consistency and credibility within the United States’ stance in prosecuting international war crimes and promoting international justice.
For now, the bipartisan passage of the Justice for Victims of War Crimes Act signals the United States’ determination to expand its prosecutorial power and closes the impunity gap for international war crimes in face of the ongoing Russian aggression in Ukraine. While we will have to wait and see the legislation’s effectiveness in action, it nevertheless demonstrates to the world that the United States will no longer be a sanctuary for war criminals, and aims to ensure access to justice and accountability for war crimes beyond those atrocities in Ukraine.
Grace Lin is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from Columbia University in 2021.