In the midst of ongoing atrocities perpetrated by Russia during its illegal invasion of Ukraine, the Senate Judiciary Committee held a public hearing on legislation to expand the jurisdiction of the existing U.S. war crimes statute and a separate bill that would allow the Justice Department to prosecute individuals for crimes against humanity.
In his opening remarks, Sen. Dick Durbin (D-IL), the chair of the committee, described these legislative proposals as upholding the legacy of the Nuremberg trials and emphasized that “a number of shameful loopholes in [our] laws continue to enable war criminals and perpetrators of crimes against humanity to find safe haven in the United States.” The Justice for Victims of War Crimes Act — introduced on a highly bipartisan basis — would close a loophole in the existing war crimes statute to ensure that foreign war criminals in the United States can be prosecuted by the Justice Department, including if they are discovered years after their crimes. Durbin further expressed his hope that the Senate would also pass an independent bipartisan statute on crimes against humanity.
Here, in brief, are eleven takeaways from the prepared statements and testimony delivered at the hearing.
1. Department of Defense’s Views on Compliance with Geneva Conventions
“The Department of Defense would like to see this expansion because it fulfills our obligations under the Geneva Conventions.”
Those were the words spoken by Sen. Chuck Grassley (R-IA), the ranking member of the committee, in his opening remarks with reference specifically to the legislation that would update the War Crimes Act of 1996. The Act currently authorizes war crimes prosecutions only if the alleged perpetrator or victim is a U.S. national or member of the U.S. armed forces. Yet the four Geneva Conventions of 1949 require States Parties (which includes the United States and all members of the United Nations) to enact domestic legislation providing for the prosecution of all individuals who have engaged in grave breaches of international humanitarian law. The proposed Justice for Victims of War Crimes Act would bring the United States into compliance with the Geneva Conventions by providing for jurisdiction based on territorial presence. It does not, however, seek to provide universal jurisdiction, which a growing number of countries, perhaps most notably Germany, have implemented to prosecute war criminals regardless of their nationality, where they committed their crimes, or whether they stepped foot in the state exercising jurisdiction. The proposed legislation would also remove temporal constraints and permit prosecutions of war crimes “at any time without limitation,” which is particularly important given the complexity of cases involving war crimes.
2. Unspoken Gap in War Crimes Act and Proposed Legislation: “Superior Responsibility”
Durbin asked Eli Rosenbaum, Director of Human Rights Enforcement Strategy and Policy at the Department of Justice, whether Russian President Vladimir Putin could be prosecuted under the Justice for Victims of War Crimes Act, but Rosenbaum refused to “speculate” on individual cases. Unspoken in this exchange is the failure of the proposed war crimes legislation to include command or superior responsibility liability. Under this longstanding principle of international law, commanders and civilian superiors have a duty to prevent their subordinates from committing war crimes and punish them if they do. This form of liability is recognized in the Department of Defense Law of War Manual and was also embraced by the Supreme Court in In Re Yamashita (1946). Given the focus on Putin’s and the Kremlin high command’s role in the war crimes being committed in Ukraine, it may be an ideal time to expand the definition of liability in relevant statutes to include command and superior responsibility.
[Editor’s note: Readers may be interested in Beth Van Schaack’s article, “Title 18’s Blind Spot: Superior Responsibility,” June 3, 2014]
3. Executive Branch Support for Crimes Against Humanity Statute
In his prepared statement, Rosenbaum identified the limitations of not having a crimes against humanity statute, unlike many countries in Europe:
“This leaves a particularly large gap in our ability to pursue justice and to deter the commission of atrocities. Crimes against humanity laws, which have been adopted by many other nations, among them Canada, the United Kingdom, South Africa, France, and Australia, allow for prosecutions of certain criminal acts when committed as part of an attack directed against a civilian population even if they occur outside the context of an armed conflict. Unlike genocide, crimes against humanity offenses (such as enslavement) do not require proof of specific intent to destroy a particular group, and prosecutors thereby gain more flexibility to hold perpetrators of mass atrocities accountable for their actions. And unlike war crimes, crimes against humanity do not have to be committed in an armed conflict. Crimes against humanity could be committed, for example, in Ukraine after the conclusion of the armed conflict, carried out by Russian perpetrators or local collaborators who continue to target civilian populations for various acts of violence, retribution, detention, or other crimes.”
Andre Watson, Assistant Director of Investigations at the Department of Homeland Security similarly highlighted the need for a criminal statute addressing crimes against humanity. Watson focused on the criminal case against Mohammed Jabbateh, led by U.S. Immigration and Customs Enforcement Homeland Security Investigations. Jabbateh personally committed or ordered rebel fighters under his command to commit crimes against humanity during the first Liberian civil war, but nevertheless could not be charged for those crimes due to the lack of a substantive statute. Additionally, because Jabbateh was neither a U.S. citizen nor a member of the U.S. armed forces, he could not be charged under the War Crimes Act. Instead, Jabbateh was found guilty of immigration fraud and perjury, for which he was sentenced to thirty years in prison. Watson requested that Congress enact more robust statutes that would allow for more meaningful accountability in these types of cases.
The support of the executive branch for domestic legislation outlawing crimes against humanity is significant on its own, and it is particularly noteworthy that the Department of Justice and Department of Homeland Security expounded in great detail the benefits of such a statute.
4. Retroactivity: Scope of Legislation to Address Russian Atrocities Since January 2022 (or even earlier)
After Sen. John Cornyn (R-TX) asked whether the Justice for Victims of War Crimes Act would apply only prospectively in light of the Ex Post Facto Clause of the Constitution, Rosenbaum said that “an argument can be made” that retrospective application would not offend the Constitution with respect to “crimes that are universally condemned.” In response, Cornyn indicated that this was an argument that would need to be decided by the “tribunal,” or court. Michel Paradis, a senior attorney at the Department of Defense representing Guantanamo detainees, has previously argued that “[a]n ex post facto challenge to the retroactive removal of the War Crime Act’s nationality loophole would not be a hard case to win.” On the other hand, Edgar Chen, who served at the Department of Justice in the same section as Rosenbaum, disagreed about the applicability of the Ex Post Facto Clause here. “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).” Regardless of where one comes down on this debate, it is notable that Cornyn seems to leave some room for the idea that the Justice for Victims of War Crimes Act does not on its face preclude retroactive application and that the legislation would leave the federal courts as the ultimate arbiter of this issue.
5. The Open Question of U.S. Support for the International Criminal Court, in Practice
Starting out his questioning, Sen. Sheldon Whitehouse (D-RI) asked Rosenbaum and Watson what exactly the United States is doing to support the International Criminal Court (ICC), posing it as a question for the record and ensuring the two witnesses understood the scope of his request for follow-up information.
Executive branch officials have stated that the United States not only welcomes but “is supporting” the ICC Prosecutor’s investigation in Ukraine. Whitehouse’s question for the record gets at what exactly is actually being done.
6. Prosecutions of Any Russian War Crimes Committed Against U.S. Nationals
Although he had previously refused to speculate as to whether the Justice for Victims of War Crimes Act would permit the prosecution of Putin, Rosenbaum indicated that the Department of Justice may currently have jurisdiction to prosecute the case of Brent Renaud, an American journalist who was killed by Russian forces. The War Crimes Statute, after all, does not require proof that the perpetrator of a war crime knew Renaud was an American or a journalist, only that he was targeted as a civilian. Indeed, Rosenbaum emphasized the Russian forces should be made aware that anyone who they unlawfully kill could be a U.S. citizen or dual U.S. national, which would place them in the Department of Justice’s crosshairs.
7. Revising U.S. Law in Support of the International Criminal Court
Sen. Lindsey Graham (R-SC) reported on a meeting with national security adviser Jake Sullivan in which the administration was “openly supportive” of a change in federal law that would allow the ICC to come to the United States and access certain information that would be “pivotal” in any case brought against Russian war criminals. Graham expressed his hope that Congress could move forward on this in December and further proposed a “robust lane of assistance to the ICC to start prosecutions early next year against Russian war criminals and let the Russian military know that you follow Putin’s orders at your own peril.” While Graham expressed some skepticism that international criminal prosecutions actually had a deterrent effect, he nevertheless suggested that increased support for the ICC could allow Congress to make a significant contribution to the outcome of the war.
Notably, a combination of three federal statutes restrict the contribution of funds to the general work of the ICC, though certain forms of support, such as intelligence sharing and detailing personnel, remain available as outlined in a 2010 opinion by the Department of Justice. In April 2022, both Democrats and Republicans in Congress signaled that they would potentially approve a policy shift toward greater support for the ICC. For example, Graham introduced a Senate resolution, which passed unanimously, supporting “any investigation,” including by the ICC, into Russian war crimes in Ukraine. Whether and how the stated support in Congress will translate into administration practice remains to be seen as the question by Whitehouse demonstrates.
[Editor’s note: Readers may be interested in Ryan Goodman’s article, “Top Cover: Congressional Republicans Pave Way for US Policy Shift on Int’l Criminal Court,” Just Security, April 13, 2022]
8. Updating the Alien Tort Statute/Torture Victim Protection Act
Sen. Jon Ossoff (D-GA) asked Rosenbaum about how the Alien Tort Statute was situated with respect to non-Americans who wished to bring suit in courts in the United States against those who committed war crimes abroad; after Rosenbaum deferred, Ossoff suggested that the Alien Tort Statute should be considered in the context of the proposed legislation here. As Ossoff pointed out, the Supreme Court has narrowed the scope of the Alien Tort Statute in recent years, most recently in Nestlé v. Doe, where it held that because most of the relevant conduct occurred abroad, applying the Alien Tort Statute would be impermissibly extraterritorial. Durbin and Sen. Sherrod Brown (D-OH) introduced the Alien Tort Statute Clarification Act earlier this year to confirm that the statute does apply extraterritorially.
9. Need for Other Congressional Fixes to Facilitate War Crimes Prosecutions
After Ossoff asked whether there were impediments to the Justice Department using information that is available to the U.S. government through sensitive collection for purposes of holding war criminals accountable, Rosenbaum discussed the need to eliminate the distinction between international and non-international armed conflicts in the current War Crimes Act. He explained that the statute currently requires prosecutors to establish whether the armed conflict was an international armed conflict or a non-international armed conflict. “One of the complications there is the information that we need to make that showing can be classified [or] involve delicate questions of foreign affairs.” Rosenbaum said that eliminating this statutory distinction would allow the executive branch to avoid this complication and enhance the United States’ ability to prosecute war crimes whether they were committed by a non-state actor like the Islamic State or by a state like Russia.
10. Gap in U.S. Jurisdiction to Extradite War Criminals and Torturers to United States
Ossoff asked Rosenbaum what issues Congress should consider with respect to extradition in the context of individuals who are outside of the United States but committed atrocities overseas. In response, Rosenbaum said, “I don’t know that the bill as I’ve seen it would enhance that authority.” He further emphasized that the torture statute is “lacking that ability” and has a “gaping hole” in this regard. He explained that if someone tortured an American overseas, that person could not be indicted because the offender was neither a U.S. citizen nor present in the United States. “If we can’t charge them, we can’t seek their extradition,” Rosenbaum explained.
11. Unspoken: An International Treaty on Crimes Against Humanity
Potential domestic legislation on crimes against humanity was discussed at several points in the hearing, but nothing was said with respect to longtime efforts to craft an international treaty on crimes against humanity. Just Security has previously highlighted the growing support for negotiating and adopting a new global treaty.