(Ця стаття також доступна українською мовою тут.)

Last week, the House Foreign Affairs Subcommittee on Europe, Energy, the Environment, and Cyber held a congressional hearing entitled, “Early Signs of War Crimes and Human Rights Abuses Committed by the Russian Military During the Full-Scale Invasion of Ukraine.”

The Subcommittee heard from a panel of war crimes experts who focused on the horrors of widespread and indiscriminate shelling of civilians, deployment of cluster munitions, dumb bombs, and other targeting issues. But buried within the testimony of witness Christo Grozev, Bellingcat’s lead Russia investigator and executive director, was a sentence alluding to evidence of alleged torture committed against civilians:

We have also received private videos and photographs, as well as direct witness reports, parts of which we have been able to also verify, that may likely constitute war crimes. These include photographs of bodies of civilians with clearly visible signs of torture and mutilation, which were geolocated and timestamped to areas and times where troops from the so-called Spetsnaz units of Chechnya’s leader Ramzan Kadyrov had been located just hours earlier (time stamp 26:10).

Unlike so many other images of destruction posted online, this evidence, Grozev testified, had not been uploaded to social media by witnesses due to fear of reprisals. He made these images privately available to members of the congressional committee, and they have since been made public on the committee’s website.

In addition to the allegations of torture set forth in last week’s hearing by Bellingcat, last year, the United Nations documented systematic abuse of prisoners, including torture, at the Izolyatsia prison in the Donetsk region, which is controlled by Russian-backed separatists. Deputy UN High Commissioner for Human Rights Nada al-Nashif, addressing the UN Human Rights Council last July stated:

We are gravely concerned that egregious violations of torture and ill-treatment documented in the ‘Izoliatsiia’ facility in Donetsk, as well as in other places of detention in territory controlled by the self-proclaimed ‘republics’, continue on a daily basis, and are carried out systematically.

In terms of accountability mechanisms to address such violations, another witness, Georgetown Professor of Government Anthony Clark Arend testified about the reach of both the International Criminal Court as well as countries such as Germany, Spain, and the Netherlands potentially exercising universal jurisdiction. He suggested that the United States could also exercise its own domestic jurisdiction, most likely under the war crimes statute, codified at 18 U.S.C. 2441 which punishes violations of the Geneva Conventions. That law, however, requires that either the perpetrator or the victim be an American national. In other words, Russians committing the most egregious war crimes against Ukrainians are currently beyond that law’s jurisdiction.

Under the United States torture statute, 18 U.S.C. 2430A, however, no such nexus to nationality is required as all that is needed for the United States to exercise jurisdiction against an alleged torturer is that the perpetrator be a U.S. national or else someone “present in the United States.” As long as the perpetrator is located in the United States, the Justice Department can prosecute them, irrespective of whether or not they, or the victim is an American national. But they must be found in U.S. territory first.

With Congress seeking to do more to hold Russia accountable for the horrific human rights violations unfolding every day in Ukraine, clarifying and strengthening the jurisdiction of both the torture and war crimes statutes involves a simple statutory fix to ensure that the United States will be able to bring perpetrators of egregious human rights abuses to justice. Indeed, this reform is long overdue and includes amendments previously encouraged by the Department of Defense and Department of State.

Reform 1: Expand the Jurisdictional Reach of the War Crimes Statute

As Professor Arend testified, the war crimes statute should be amended to include “present-in” jurisdiction so that any war crimes suspect located in the United States can be prosecuted. This would harmonize the reach of the law to be consistent with the existing jurisdictional scope of domestic U.S. laws against torture, genocide, and the use of child soldiers. In fact, the Department of Defense, in commenting on the original war crimes legislation in 1996 explicitly urged that the:

jurisdictional provisions should be broadened from the current focus on the nationality of the victims of the war crime. Specifically, we suggest adding two additional jurisdictional bases: (1) where the perpetrator of a war crime is a United States national (including a member of the Armed Forces); and (2) where the perpetrator is found in the United States, without regard to the nationality of the perpetrator or the victim (emphasis added).

The rationale that the Department’s General Counsel gave for “present-in” jurisdiction was because it “is required in order to be in compliance with our international obligations.” The State Department also supported “present-in” jurisdiction for war crimes. Like the DoD General Counsel, the State Department’s Principal Deputy Legal Adviser told Congress that doing so “would ensure the ability of the United States to fulfill our obligations under the 1949 Geneva Conventions and other international agreements” and would “ensure that the United States cannot be a safe haven for those who have committed violations of the laws of war.”

That said, the Justice Department can – and should — investigate whether the Russian military’s killing and maiming American journalists and other U.S. civilians in Ukraine was intentional or reckless and, hence, a war crime within the existing jurisdiction of the statute. To be clear, it is not necessary to prove that the attackers knew the victims were Americans or journalists, only whether the attackers targeted them as civilians.

Reform 2: Expand the Jurisdictional Reach of the Torture Statute

The second jurisdictional update would be to expand the torture statute so that it can be triggered if the victim is an American national. This would allow an investigation and prosecution for torture to proceed without depending on the perpetrator first being present in the United States. For example, in the putative case of a non-US abuser who has tortured American citizens abroad – it is unclear that they could be extradited to the United States since the suspect would neither be a U.S. national, nor present in the United States at the time. Clarifying that jurisdiction exists if there is a U.S. victim would prevent any confusion. As has been the case with other crimes, authorities have been able to extradite wanted suspects, often waiting years for an offender to make a travel mistake and visit a country with an extradition treaty (the U.S. does not have an extradition treaty with Russia or Ukraine.)

With more Americans joining the war as combatants or helping deliver humanitarian relief, it is easy to contemplate their being captured and tortured. Torture as has been documented, is already part of the rights abuse landscape in the broader Ukrainian conflict.

Such changes to the war crimes or torture statutes would not violate the prohibitions against ex post facto criminalization. Such amendments do not declare unlawful what had been lawful before. They merely define U.S. domestic jurisdiction over crimes that are universally unlawful and already prohibited by the two statutes (both define the respective offence to include “whoever” outside the United States commits the relevant acts).

The Justice Department could, under current authorities, investigate and prosecute the torture of any American national in Ukraine as torture is explicitly prohibited under the war crimes statute and an armed conflict exists.  If an American national is detained in Russia however, and tortured by Russian authorities, jurisdiction would not apply unless the perpetrator arrives in the United States.

Other gaps can certainly be filled in the federal criminal human rights accountability landscape, as former U.S. War Crimes Ambassador David Scheffer argued in calling on Congress to enact crimes against humanity legislation in Just Security last fall. Senate Judiciary Committee Chairman Dick Durbin has long been a champion, but if that legislation cannot move this Congress, the simpler harmonization of jurisdiction for war crimes and torture can and should be enacted – not only to bring justice for Ukrainian war crimes victims, but also to ensure that the United States has the ability to prosecute those who would commit torture against American nationals in Ukraine and elsewhere.

Will the United States ever have the opportunity to exercise that jurisdiction for crimes committed in Ukraine? For decades now, the stated policy of the United States has been to prevent and deter the entry of human rights violators into this country. Following the Second World War, the Displaced Persons Act of 1948 was enacted to address the need to handle millions of refugees uprooted by the conflict but specifically barred those who assisted in the persecution of civilians from qualifying to receive a visa to come to the United States. Still, hundreds if not thousands of alleged perpetrators were able to circumvent vetting and lie their way into the country claiming to be legitimate refugees.

The problem was so great that the U.S. Department of Justice’s Office of Special Investigations (OSI) was established in 1979 to remove those who assisted in Nazi-sponsored acts of persecution. OSI has taken legal action against over 130 participants in Nazi-sponsored persecution and also compiled a database of nearly 70,000 suspected Axis persecutors to a “watchlist” to deny visas or turn away suspects at ports of entry.  Well into this century, the policy has evolved into one of “no safe haven” for post-World War II, modern-day human rights violators as well, with the Department of Homeland Security carrying out law enforcement operations against hundreds of suspected perpetrators:

Since 2003, ICE has arrested more than 415 individuals for human rights-related violations of the law under various criminal and/or immigration statutes. During that same period, ICE obtained deportation orders against and physically removed more than 990 known or suspected human rights violators from the United States. Additionally, ICE has facilitated the departure of an additional 152 such individuals from the United States.

Congress could also fund and require the DOJ, State Department and DHS to create a similar database of suspected Russian military personnel who are responsible for war crimes in Ukraine.

While no safe haven relies largely on enforcement of immigration laws including those making inadmissible to the United States those who committed genocide, torture, and extrajudicial killing, today, OSI’s successor organization, the DOJ’s Human Rights and Special Prosecutions Section has jurisdiction to prosecute the torture, war crimes, genocide, and child soldiers laws (although they have never brought a substantive case for genocide, war crimes, or use of child soldiers and have only prosecuted approximately four torture cases in history).

Like in the World War II cases and modern-day conflicts, it may simply be a matter of time before those on the battlefield in Ukraine find their way to the United States. After the pandemic, immigration will eventually increase and as we’ve seen before, perpetrators will disguise themselves among the masses of refugees fleeing war. Some will come and should be prosecuted once in the United States. Others may not come for fear of prosecution. In either case, if the law is clear that war criminals and torturers from the Ukraine war face such criminal sanctions, the no safe haven policy will be maintained –a win for U.S. policy. Under any circumstance, the United States should have the ability to prosecute them with the full panoply of tools Congress has provided.


Photo credit: US Attorney General Merrick Garland (L) speaks with Senate Judiciary Committee Chairman Senator Dick Durbin (D-Ill) before a Senate Judiciary Committee hearing on “Oversight of the United States Department of Justice,” Oct. 27, 2021. (Tom Brenner/Pool/AFP via Getty Images)