Closing the Impunity Gap for War Crimes

By Elise Baker

Flash Back: War criminals in action during Liberia senseless brutal civil war Hassan Amini /
Credit: AP

In March 2022, U.S. authorities arrested Laye Sekou Camara. A resident of Pennsylvania since 2011, Camara previously was a leading member of Liberians United for Reconciliation and Democracy (LURD), an armed group responsible for more than 18,000 violations of human rights and international humanitarian law in Liberia’s civil wars, including shelling, massacres, and summary executions of civilians. However, rather than facing war crimes charges for his actions in Liberia, Camara instead was charged with immigration fraud for denying prior involvement with armed groups on his visa and green card applications.

The failure to charge Camara with war crimes was due to a legal loophole in the U.S. war crimes statute. Until last week, U.S. courts could only prosecute war crimes if either the victim or the perpetrator was a U.S. national or a member of the U.S. armed forces. Thus, despite calling the United States home for more than ten years, Camara—a non-U.S. national accused of war crimes against non-U.S. national victims—was immune from war crimes charges. And Camara was not the only alleged war criminal escaping justice in the United States. Federal prosecutors have never brought war crimes charges against any suspect, in part due to the strict nationality requirement.

Last week, President Joe Biden closed this loophole by signing into law a bill with bipartisan congressional support, the Justice for Victims of War Crimes Act. The act amends the war crimes provision in the federal criminal code to ensure that U.S. courts can prosecute perpetrators of war crimes who are present in the United States, regardless of the perpetrator or victim’s nationality or where the crime took place.

This amendment was long pushed for by human rights advocates as well as government officials, as it closes an impunity gap for war crimes, brings U.S. war crimes legislation in line with Geneva Convention obligations, and better aligns U.S. jurisdiction over war crimes with that for torture, genocide, and recruitment of child soldiers.

Although the amendment increases the prospect of U.S. prosecutions for war crimes, it will not result in a deluge of war crimes trials. In what follows, this article outlines the requirements that must be met for a war crimes prosecution to proceed in U.S. courts, explains the new changes in relation to the previous law, and offers recommendations for how to further increase accountability prospects for atrocity crimes within the U.S. judicial system.

Jurisdictional Requirements

Under the newly amended war crimes statute, U.S. courts have jurisdiction over war crimes in any of the following cases: (1) the offense was committed in whole or in part within the United States; (2) the victim or perpetrator is (a) a U.S. national, (b) an alien lawfully admitted for permanent residence, or (c) a member of the U.S. armed forces; or (3) the offender is present in the United States, regardless of the victim or perpetrator’s nationality or where the act was committed. The jurisdictional grants provided under (1), 2(b), and (3) are new and may increase the prospect of justice in U.S. courts.

It is possible to imagine a scenario where the first jurisdictional amendment could come into play. As technology advances and warfare changes, non-U.S. national members of an armed group or private military contractor could be based in the United States and orchestrating, directing, or aiding in the commission of war crimes overseas. This could be sufficient to establish the commission of war crimes in whole or in part within the United States, which is now sufficient to establish jurisdiction in U.S. courts. This jurisdictional basis also exists for genocide and the use or recruitment of child soldiers.

Second, the jurisdictional grant for war crimes committed by or against U.S. permanent residents would apply to cases where U.S. permanent residents have fallen victim to crimes abroad. The amended act is ambiguous as to when permanent residence must be established, whether it is a stricter requirement that residency be established at the time the act occurred, or a looser requirement allowing for residency to be established at the time charges are brought, which may open the door for additional victims to seek justice. Other laws such as an exception to the Foreign Sovereign Immunities Act, which allows for civil claims against foreign nations for torture and extrajudicial killing, among other violations, explicitly state that a victim’s status as a U.S. national, member of the armed forces, or employee or contractor of the U.S. government must be established “at the time the act … occurred.” That language is missing from the war crimes statute, and it is a rule of statutory construction that courts must “refrain from reading a phrase into [a] statute when Congress has left it out.” Thus, the absence of this stricter language in the Justice for Victims of War Crimes Act may indicate an intent to allow for establishment of nationality later on, when charges are brought.

Further, as discussed below, there is clear legislative intent that the third jurisdictional amendment—presence of a suspect—can be established at the time charges are brought, even though the statute is not explicit on this point. If the relevant time for a suspect’s presence is the time of charging, it is conceivable that the relevant time for a victim’s (or perpetrator’s) permanent residence is also the time of charging. If permanent residency can be established at the time charges are brought, the amendment has opened the door to war crimes cases where the victims are refugees from Ukraine, Syria, and other conflicts who have been permanently resettled in the United States.

Third, U.S. courts now have jurisdiction over war crimes committed by anyone who is later present in the United States, known as “present-in” jurisdiction. This expansion will ensure that suspects such as Camara cannot take advantage of the United States as a safe haven to start a new life and escape accountability for their crimes. It will even allow for the prosecution of any war crimes suspect temporarily in the United States on holiday, business, or visiting family.

The motivation for adding “present-in” jurisdiction came from mounting evidence of Russian war crimes in Ukraine and Congress’ desire to demonstrate support for Ukraine during President Volodymyr Zelenskyy’s visit to Washington in December. But the effect of this jurisdictional amendment will extend beyond Russia’s war in Ukraine. European courts have tried suspects of atrocities committed in Iran, Liberia, Rwanda, and Syria, among other countries, all on the basis of the perpetrator’s presence in the European country. The addition of “present-in” jurisdiction better aligns the U.S. war crimes statute with that of European countries, as well as with U.S. laws criminalizing torture, genocide, and the use or recruitment of child soldiers. The Department of Defense and State Department have also advocated for “present-in” jurisdiction since before the war crimes statute was passed in 1996, because that jurisdictional basis is required to comply with U.S. obligations under the Geneva Conventions, which require signatories to search for and prosecute suspects of war crimes, regardless of their nationality.

Time in Which War Crimes Committed

Although the Justice for Victims of War Crimes Act does not specify any restrictions for when the offense must have been committed, the Constitution likely imposes some limitations. Article I, Section 9, Clause 3 of the Constitution provides: “No Bill of Attainder or ex post facto Law shall be passed.” Michel Paradis has made a detailed case of why retroactive application of the new jurisdictional amendments for war crimes would violate the ex post facto clause: because it would “inflict[] punishments, where the party was not, by law, liable to any punishment” at the time the acts was committed.

Under Paradis’ interpretation of the ex post facto clause, the broader jurisdictional grant for war crimes—applying to war crimes committed in whole or in part in the United States, by or against US permanent residents, or by suspects later found present in the United States—would only apply to offenses committed on or after the Justice for Victims of War Crimes Act’s enactment on Jan. 5, 2023. U.S. courts would still have jurisdiction over war crimes committed by or against U.S. nationals or servicemembers, when the offenses occurred on or after Aug. 21, 1996, when the war crimes statute was first enacted. However, any war crimes committed in the first 10-plus months of Russia’s war in Ukraine, which do not involve U.S. nationals or servicemembers as victims or perpetrators, would remain outside the jurisdiction of the U.S. judicial system.

Others have argued that the ex post facto clause may not bar the retroactive application of the jurisdictional amendment, because the new amendment does not “declare unlawful what had been lawful before” but instead re-defines U.S. jurisdiction over crimes already prohibited by statute. If that interpretation is correct, the Justice for Victims of War Crimes Act amounts to jurisdictional expansion, and U.S. authorities could prosecute any suspect accused of war crimes after Aug. 21, 1996. If prosecutors ever bring charges that apply the jurisdictional grant retroactively, the defense likely would bring a constitutional challenge, leaving courts to determine its temporal applicability.

Time in Which Prosecution Must be Brought

Under the prior war crimes statute, war crimes were subject to the general criminal five-year statute of limitations, unless the crime resulted in death, in which case no statute of limitations applied. The new Justice for Victims of War Crimes Act waives the statute of limitations for all war crimes, regardless of consequence (similar to Congress’ waiver of the statute of limitations for genocide in 2009). The Constitution’s ex post facto clause comes into play in determining the applicability of the new statute of limitations. The U.S. Supreme Court has held that extending a statute of limitations after the period has expired violates the ex post facto clause. However, circuit courts have held that extending a statute of limitations before the period has expired does not violate the ex post facto clause. Therefore, the amendment likely can lengthen the statute of limitations for war crimes where the statute of limitations had not expired by Jan. 5, 2023, which would be those committed on or after Jan. 6, 2018.

In summary, under the amended law, there is no statute of limitations for war crimes committed on or after Jan. 6, 2018, or for war crimes committed between Aug. 21, 1996, and Jan. 5, 2018, by or against a U.S. national or servicemember, where death resulted. Any war crime committed between Aug. 21, 1996, and Jan. 5, 2018, by or against a U.S. national or servicemember, where death did not result, remains subject to the five-year statute of limitations and therefore remains time-barred if not yet initiated.

Certification Requirement

The Justice for Victims of War Crimes Act also adds a new certification requirement for war crimes charges, which is absent from the original war crimes statute. The Act provides that no prosecution for war crimes shall proceed except on non-delegable “written certification of the Attorney General, the Deputy Attorney General, or an Assistant Attorney General … that a prosecution by the United States is in the public interest and necessary to secure substantial justice.” The Act further specifies that certification is not subject to judicial review.

For cases in which the only jurisdictional basis is the perpetrator’s presence in the United States, a stricter certification requirement applies. In those cases, the written certification “shall be made by the Attorney General or the Deputy Attorney General, which function may not be delegated.” In weighing public interest and necessity in securing substantial justice, officials are instructed to consider whether the suspect can be removed to another jurisdiction for prosecution, and whether a U.S. prosecution poses “potential adverse consequences for nationals, servicemembers, or employees of the United States.” The law also allows for the Secretary of Defense and Secretary of State to weigh in on the potential benefits or consequences of prosecutions based only on “present-in” jurisdiction.

As a statutorily mandated prerequisite to bringing war crimes charges, the certification requirement is new. It was reportedly added to address concerns that U.S. prosecutions of foreign acts could lead to foreign relations issues (and it is similar to a certification requirement for prosecuting murders of U.S. nationals abroad). However, this new statutory requirement may not substantially change already existing practice for pursuing war crimes cases. Since 1997, Department of Justice guidelines have required the Assistant Attorney General of the Criminal division to provide prior, express approval of any war crimes charges.

There are likely cases where foreign relations concerns have helped prevent the initiation of war crimes charges. For example, consider the case of Gotabaya Rajapaksa, a U.S. citizen who served as Sri Lanka’s Secretary of Defense and led the military in the final years of its civil war, ordering executions of political leaders and dissidents, as well as bombings of civilian populations. Despite strong evidence of his war crimes, repeated calls for a criminal investigation and charges, and a clear jurisdictional basis for prosecution under the 1996 War Crimes Act, Rajapaksa has not been publicly charged.

It is possible that the new certification requirement will reduce the number of war crimes cases that could otherwise be brought, if, for example, the Attorney General, Secretary of Defense, or Secretary of State are particularly opposed to charges that other officials are inclined to bring. However, given that no war crimes prosecutions were initiated under the previous law, which lacked a certification requirement, it seems likely that prosecutors already took a cautious approach to levying war crimes charges, and the new requirements may not add a noticeably greater burden. Further, the certification requirement should not pose an issue for cases where there is strong inter-governmental consensus on the need to take action against perpetrators, as is the case for Russian perpetrators in Ukraine.

Implications and Recommendations for the Future

While the Justice for Victims of War Crimes Act brought long-advocated-for improvements to U.S. war crimes legislation, war crimes trials in U.S. courts will still be rare. For example, the following steps must occur before there can be a U.S. prosecution of a Russian war crimes in Ukraine: (1) A Russian soldier or official accused of committing war crimes (on or after Jan. 5, 2023) must end up in the United States; (2) U.S. authorities must identify this individual and the accusations against them and secure sufficient evidence to bring charges against them; (3) the Attorney General or Deputy Attorney General must certify that a U.S. prosecution is in the public interest and necessary to secure substantial justice, without strong opposition from the Secretary of Defense and Secretary of State; and (4) only then can charges be brought, after which, to secure a conviction, prosecutors must establish the suspect’s liability for war crimes beyond a reasonable doubt.

Legislative amendments to the war crimes statute are clearly not a panacea. Much more must be done to improve the prospects that perpetrators of atrocity crimes will be held accountable in U.S. courts and elsewhere. First, additional legislation and legislative amendments are necessary to improve the legal tools to advance human rights and international justice. The United States still has no legislation criminalizing crimes against humanity, a core international crime that featured prominently in the Nuremburg Trials. The United States also lacks jurisdiction to prosecute acts of torture or genocide committed against U.S. nationals outside of the United States. Although some acts amounting to crimes against humanity, torture, and genocide could also be prosecuted as war crimes, that is not always the case. Further, to set an accurate historical record and ensure victims can achieve a sense of justice through the criminal justice system, it is important that charges reflect the full scope of crimes that were committed. Enacting a crimes against humanity bill and expanding jurisdiction for torture and genocide would strengthen legislative tools for prosecuting atrocity crimes in U.S. courts.

Second, accountability for atrocity crimes must be a higher priority within the U.S. government. Greater budgetary resources must be dedicated to the Human Rights Violators & War Crimes Center, the only government entity solely dedicated to investigating atrocity crimes and suspects located within the United States. In addition, there must be greater political will for pursuing war crimes charges and ensuring that suspects within the reach of U.S. courts do not escape justice. The recent focus on accountability for Russia’s atrocity crimes by Congress and other branches of government is very much welcomed. But to truly have an impact, this increased focus must be sustained, and it must extend beyond the Russia-Ukraine war.

Third, the United States can do more to support accountability efforts in foreign and international courts. U.S. authorities and intelligence agencies could share information on potential suspects of atrocity crimes with European countries and other jurisdictions where suspects may end up, hoping to evade detection. Even without joining the International Criminal Court, the United States could share information and evidence with the Court and support its investigations and prosecutions in other ways, increasing its prospect of success. U.S. Ambassador-at-Large for Global Criminal Justice Beth Van Schaack has indicated these efforts are underway. These efforts should likewise be sustained and expanded beyond the Russia-Ukraine war.

Congress’ strong bipartisan passage of the Justice for Victims of War Crimes Act last month is the latest indication of how Russia’s war in Ukraine has dramatically increased U.S. appetite for accountability for atrocity crimes. Advocates should celebrate this win and use this momentum to secure additional support for international justice efforts.

Source: Just Security

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