Last week, Senator Dick Durbin (D-IL), Chairman of the Senate Judiciary Committee, proposed amending the U.S. War Crimes Act, the federal law that provides for the prosecution of war criminals in U.S. courts. The new legislation would allow the prosecution of any persons found in the United States for war crimes wherever their crimes had been committed. Senator Lindsey Graham (R-SC) said he is working with Sen. Durbin to pass the legislation. This is obviously of particular importance now in light of the very serious international crimes being committed by Russian forces in Ukraine.
I strongly support this effort. In 1996, Congress passed the War Crimes Act, after receiving testimony from the executive branch. As the Principal Deputy Legal Adviser of the U.S. State Department, I testified before Congress on behalf of the Administration in support of providing U.S. criminal jurisdiction over any persons found in the United States, regardless of their nationality, who had committed serious war crimes anywhere in the world.
I testified that this jurisdictional scope was important for several reasons. First, making such acts subject to prosecution was essential to counteracting and deterring them, and the United States could not rely for this entirely on international criminal tribunals, which typically have limited jurisdiction. Second, the jurisdictional scope was needed to ensure the ability of the United States to fulfill our obligations under the 1949 Geneva Conventions, which require parties to take action against any war criminals found within their jurisdiction. Third, such a law would serve as a diplomatic tool for the United States in urging other countries to take action against war criminals found in their jurisdiction, which would reduce the ability of such persons to hide elsewhere. And fourth, the law would help avoid the possibility that the United States might find itself a legal haven for war criminals, which would substantially harm our standing in the world and degrade our ability to stop such crimes and bring their perpetrators to justice.
Congress did act at that time to expand U.S. criminal jurisdiction over war crimes in some respects, but unfortunately was not prepared to give U.S. courts jurisdiction over any war criminal found in the United States, as we had proposed. The situation in Ukraine, where serious international crimes are being committed on a very large scale, gives Congress the opportunity to overcome that reluctance and expand the War Crimes Act in this respect. Of course, this should not be limited to Ukraine. The possibility of similar crimes elsewhere is obvious, and their prosecution should not be subject to a race to pass ad hoc legislation on each occasion. Amendment of our laws to expand the general jurisdiction of U.S. courts would clearly help to enhance our ability to take action to stop and remedy the serious crimes now being perpetrated in Ukraine. It will also help the United States call on other states to live up to their obligations under the Geneva Conventions as well, and bring such war criminals who are found in their territory to justice.