Despite passage of the War Crimes Act (WCA) in 1996 and amendment in 1997, the United States criminal code does not—outside narrowly defined circumstances—allow the government to prosecute war criminals in federal courts. But widespread accusations of war crimes committed by Russian soldiers in Ukraine has spurred a bipartisan effort in Congress to breathe new life into this “dead letter” statute. If passed, the Justice for Victims of War Crimes Act of 2022—a recently introduced amendment to the WCA—would bring the United States more in-line with its duties under the Geneva Convention and more in-step with allies abroad.
The new bill would also create an important mechanism for holding corporations accountable for aiding and abetting war crimes. For this reason, CAL urges Congress to swiftly enact the proposed amendment.
In this blog post, we provide a brief overview of international treaties and domestic laws governing international armed conflict. Next, we look at the War Crimes Act of 1996 and its shortcomings. We then look at the recently introduced Justice for Victims of War Crimes Act and examine the bill’s potential as a vehicle for holding corporations accountable for their involvement in war crimes.
The Existing Law & US Obligations
International humanitarian law (IHL) is a set of internationally recognized standards designed to minimize the brutality of armed conflict. Modern IHL largely took shape in the first half of the twentieth century in two phases. First, conventions at The Hague and elsewhere formulated rules governing the means and methods of warfare. For example, the Hague Conventions prohibit the use of projectiles “the sole object of which is the diffusion of asphyxiating or deleterious gases.” Second, the International Committee of the Red Cross sponsored four treaties in Geneva which codified protections for people uniquely affected by or vulnerable to war. Each of these four treaties aims to protect a specific class of persons: the First Geneva Convention seeks to protect wounded or sick combatants and personnel attending to them; the Second Geneva Convention extends protections under the First Convention to maritime warfare; the Third Geneva Convention governs the treatment of prisoners of war; and the Fourth Geneva Convention protects civilians. In 1977, two protocols were adopted as a response to the changing nature of warfare.
Each of the four Geneva Conventions impose a mandatory duty on signatories to “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and [to] bring such persons, regardless of their nationality, before its own courts” (emphasis added). In other words, signatories accept an affirmative obligation to both search for suspected war criminals and try the alleged criminals in their country’s courts. As a ratifier of all four Geneva Conventions and a signatory to the 1977 Protocols, the United States has a treaty-based duty to enact legislation for purposes of prosecuting war crimes in American courts.
To fulfill that duty, Congress enacted the WCA – but the law falls far short of the mandate pronounced by the 1949 Conventions. The WCA criminalizes a range of war crimes, including the“grave breaches” defined by the Geneva Conventions and crimes under certain articles of the Hague Convention, but applies only where either the perpetrator or the victim of a war crime is a US national or a US service member. This jurisdictional restriction materially lessens the efficacy of the statute—the United States will bring war criminals to justice only when the alleged crime is sufficiently linked to American interests—and renders the WCA out of step with the obligation to bring persons before the court “regardless of nationality.”
On its face, the law seems to create corporate liability for war crimes, but this theory has never been tested – presumably because of the law’s staggeringly narrow applicability. We are hopeful that expanding jurisdiction under the WCA will allow US prosecutors to bring corporations that aid and abet war crimes to justice.
The Proposed Amendment: Justice for Victims of War Crimes Act of 2022
Proposed Amendment, Section 2(b): There is jurisdiction over an offense… if— (1) the offense occurs in whole or in part within the United States; or (2) regardless of where the offense occurs— (A) the victim or offender is— (i) a national of the United States or an alien lawfully admitted for permanent residence; or (ii) a member of the Armed Forces of the United States, regardless of nationality; or (B) the offender is present in the United States, regardless of the nationality of the victim or offender…
The Justice for Victims of War Crimes Act of 2022 (Justice for Victims Act) was introduced by Senators Durbin (D-IL), Grassley (R-IA), Graham (R-SC), and Leahy (D-VT) on May 18, 2022. This bipartisan, bicameral bill is intended to “broaden the scope of individuals subject to prosecution for war crimes.” The bill does this by expanding jurisdiction under the statute to include instances where “the offender is present in the United States, regardless of the nationality of the victim or offender” (emphasis added). The bill also makes clear that the US Government can prosecute a suspected war criminal “at any time,” eliminating concern that a statute of limitation will bar a case. In a press release, Senator Durbin claimed the bill is intended to address “an egregious gap in our laws to ensure that war criminals who come to the United States can be prosecuted for their crimes.”
Apart from coming closer to satisfying US obligations under the Geneva Conventions, broadening the statute’s jurisdictional reach has other benefits: deterring would-be war criminals, functioning as a “diplomatic tool” in urging other countries to seek out war criminals within their borders, and avoiding the possibility that the US becomes a safe haven for war criminals looking to escape justice.
The Potential for Corporate Accountability Under the Existing WCA & the Proposed Bill
Just as the Justice for Victims Act would expand the US Government’s power to prosecute natural persons “present in the United States,” so too the bill would expand its prosecutorial power over corporations. The proposed bill retains the WCA’s use of the words “whoever” and “person,” terms that generally refer to both legal and natural persons. Assuming the bill, if enacted, would give Attorneys General authority to prosecute corporations, the question arises: what does it mean for a foreign corporation to be “present in” the United States? In other words, what kinds of connections must exist between the corporation and the United States before the corporation is considered present?
In 2009, a federal district court observed that the case law on this issue is “surprisingly sparse and poorly developed.” That same court went on to identify four instances where a court may have jurisdiction over a foreign corporation under US criminal code:
A corporation has established certain “minimum contacts” with the United States;
Conduct abroad causes an injury within the United States;
An agent of the foreign corporation has done enough business in the United States to justify jurisdiction; or
At least one overt act occurred in the United States.
For example, pillaging is a war crime covered by the WCA. If a foreign corporation pillages natural resources during an armed conflict in a foreign jurisdiction, and then sells those resources in the United States, this might trigger criminal liability under the WCA. Given the thin case law, it is difficult to predict where a court will land in any given jurisdictional dispute. The upshot of legal advocacy in underdeveloped areas of the law, however, is that there is room for advocates to make good case law.
Recommendations for Strengthening the Proposed Bill
The Justice for Victims Act is undoubtedly an improvement over the WCA, principally because of its expanded jurisdictional reach. That said, the bill could be further strengthened to better prosecute alleged war criminals and to provide a more reliable statutory basis for holding corporations accountable. Two recommendations for strengthening the bill—and for improving the likelihood that corporations might be held criminally liable in the United States for war crimes committed elsewhere—are detailed below.
(These recommendations are far from exhaustive. Dr. Beth Van Schaack, the U.S. Ambassador-at-Large for Global Criminal Justice, suggests several other recommendations in her comprehensive analysis, Animating the U.S. War Crimes Act.)
Liability for Superior Responsibility
Superior responsibility is a legal doctrine which holds an employer or principal liable for the wrongful acts of an employee or agent committed within the scope of the employment. This doctrine is widely used throughout US law, is ingrained in IHL and customary international law, and is included in the criminal codes of several US allies. But for all its sensibility, neither the WCA nor the Justice for Victims Act explicitly include superior responsibility as a theory of liability. By amending the WCA to expressly include superior responsibility, the United States could prosecute those leaders who knowingly allowed their subordinates to commit grave breaches with impunity.
Prosecutorial Accountability
The Justice for Victims Act tips the scales against charging alleged war criminals by requiring an Attorney General or designee to certify in writing that a prosecution “is in the public interest and necessary to secure substantial justice.” While the certification requirement is not self-defining, other federal laws, including the Hate Crimes Prevention Act, use identical language. In the Hate Crimes statute, the public interest standard serves two purposes: first, it requires a high-level official to determine whether prosecution is in the public interest; and second, if the Attorney General fails to comply with the procedure (for example, by failing to certify or by having an unauthorized agent certify), a defendant can argue in court that the case should be dismissed for failure to follow the statute’s procedures. It is worth noting that the underlying determination of whether a prosecutor is acting in the public interest is within the scope of their discretion and is not reviewable by a court.
Given the Department of Justice’s opposition to including the “present in” language in the original WCA, it seems fair to wonder how prosecutors might use a public interest provision to avoid charging an alleged war criminal. Without infringing on prosecutorial discretion or violating separation of powers principles, Congress could update the Justice for Victims Act to better conform with the United States’ obligations under the Geneva Conventions by requiring that Attorneys General make written certifications public documents and by embracing disciplinary regulation of prosecutors who abuse their discretionary authority.
Conclusion
If passed, the Justice for Victims Act would revive the WCA by granting US courts jurisdiction over alleged war criminals “present in the United States.” Moreover, the amendment likely strengthens the US’s power to prosecute both corporations—regardless of the victim’s nationality—for facilitating, financing, or otherwise aiding and abetting war crimes. However, even with a materially stronger law in place, if prosecutors elect not to investigate and charge alleged war criminals within the amended statute’s jurisdiction, the Justice for Victims Act will be nothing more than a policy statement without practical implication. Advocates in the United States play an important role here. By contacting our Congresspeople and amplifying victims’ voices, advocates can help move the Justice for Victims Act toward passage and exert pressure on prosecutors to exercise their authority under the new law.
Justin Bertsche is a Legal Intern at Corporate Accountability Lab.
