The Just Security Podcast

Closing the War Crimes Impunity Gap

January 20, 2023 Just Security Episode 11
The Just Security Podcast
Closing the War Crimes Impunity Gap
Show Notes Transcript

As Russia’s war against Ukraine rages on and evidence of thousands of war crimes continues to mount, countries around the world have looked for ways to hold Russian generals and troops accountable. 

On January 5, 2023, President Biden signed the Justice for Victims of War Crimes Act, closing a major loophole that has prevented the U.S. from investigating and prosecuting alleged war criminals when they enter the country. 

To break down the new law, and how it could hold war criminals accountable, we have Elise Baker. Elise is a lawyer at the Atlantic Council, a think tank based in Washington, D.C. She is an expert on accountability for atrocity crimes and human rights violations. 

Show Notes:  

Jerry Nadler: Madam Speaker, in the shadow of the Second World War, we joined with other nations to sign up for Geneva Conventions. Fulfilling the Promise of the Nuremberg trials to ensure that war criminals and perpetrators of crimes against humanity could and would be held accountable for their actions. Today, with passage of the justice for victims of War Crimes Act, we will close a dangerous loophole that has allowed this promise to ring hollow for some. 

Paras Shah: That’s Representative Jerry Nadler speaking in support of a bill that President Biden recently signed into law.  

As Russia’s war against Ukraine rages on and evidence of thousands of war crimes continues to mount, countries around the world have looked for ways to hold Russian generals and troops accountable. 

On January 5, President Biden signed the Justice for Victims of War Crimes Act, closing a major loophole that has prevented the U.S. from investigating and prosecuting alleged war criminals when they enter the country. 

To break down the new law, and how it could hold war criminals accountable, we have Elise Baker. Elise is a lawyer at the Atlantic Council, a think tank based in Washington, D.C. She is an expert on accountability for atrocity crimes and human rights violations. 

Welcome to the Just Security podcast. I'm your host Paras Shah.

Hi Elise, thanks for joining the podcast today. 

Elise Baker: Thanks for having me. 

Paras: So, I want to start with what might be an obvious question, but why is it important for the U.S. to hold people who may have committed war crimes accountable? 

Elise: If the U.S. wants to say that war crimes should not be committed, we have to show respect for these laws, so the U.S. has ratified the Geneva Conventions. These are one of the main sources of law that define war crimes, and the Geneva conventions actually require the countries that are members of it to investigate and prosecute perpetrators of war crimes. So, that means that if a war crimes perpetrator has come to the United States, U.S. authorities should be investigating and prosecuting them. 

And so we need laws on our books that allow for these investigations and prosecutions. That's what really signals that we do believe that war crimes are wrong, and that there should be justice and accountability for war crimes. We need to actually enforce these laws if we wanna say that they matter.

Paras: Okay, so it's not just a moral reason to prosecute these types of crimes. The U.S. actually has its own legal obligations that it has to meet, and part of those includes holding war criminals accountable. But why does it matter that this happens in the United States through U.S. courts? Isn't there an international Criminal Court in The Hague?

Elise: Yeah, so you're right. We do have the International Criminal Court, but the ICC has a lot of limitations and it was never really envisioned to be the solution to trying war crimes or other atrocity crimes. And there's two main reasons for the ICC’s limitations. First, it has really limited jurisdiction.

Paras: To be clear, when we're talking about jurisdiction, we just mean the power of a court to hear a case in the first place.   

Elise: The jurisdiction of the ICC is mostly consent based, so countries have to choose to ratify the Rome Statute to become a member of the ICC, and that's what gives the ICC jurisdiction over crimes committed in that country or by nationals of those countries A lot of powerful countries have not chosen to ratify the Rome Statute, and that includes the United States, Russia, China, Israel, Turkey, and a number of other countries. So the ICC does not automatically have jurisdiction over crimes committed in those countries or by nationals of those countries.

There is a second way that the ICC can have jurisdiction, and that's if the UN Security Council refers a situation to the ICC. But you know, this doesn't happen in a lot of cases because again, you have powerful countries that can veto, or block, any sort of referral to the ICC.

This happened with Syria. So, Russia and China vetoed a referral of Syria to the ICC. Syria is not a member state of the Rome statute, and therefore the ICC has no jurisdiction over crimes committed in Syria. And so you need some solution besides the ICC in order to ensure justice or accountability for crimes committed in countries like that. 

Paras: But even if a case gets to the ICC, those prosecutions won't be for every person that commits a war crime, right?

Elise: The ICC only has a mandate to look at the most serious crimes committed by high level perpetrators. It doesn't have a mandate to investigate every single war crime or atrocity crime committed in a situation that it's looking at. So there's many crimes that are basically never gonna be on the radar of the ICC, even where the ICC has jurisdiction. Thisis where domestic courts can come in and kind of fill the gaps that are left by the ICC, you know, if these individuals are present in the country, that domestic courts can come in to fill this gap, looking at lower level perpetrators and ensuring that they don't escape justice.

Paras: So how has the U.S. done at prosecuting potential war criminals when they enter the country?   

Elise: Yeah, so the U.S. has done very little to actually prosecute perpetrators of war crimes or alleged perpetrators of war crimes. We do have along the books that dates back to 1996 that criminalizes war crimes under the U.S. criminal code. But this law was pretty limited in that it only allowed for prosecutions where either the victim or the perpetrator was a U.S. national or a member of the U.S. Armed Forces. So this is great for, you know, ensuring that U.S. victims or perpetrators of war crimes can seek justice and accountability in U.S. courts, but it does nothing for all of the other contexts where war crimes might arise. 

So, where we saw kind of most of the gaps in this law was where there's alleged perpetrators of war crimes coming to the United States, either to move here, to travel, sometimes to restart their lives, and basically start a new life in the U.S. They committed war crimes years prior in a different country against non-U.S. nationals. And then they come to the U.S. and start a new life. And our laws were not able to look at war crimes committed by those people, to prosecute them or to even investigate them for war crimes. And so instead, basically the only legal tool that US authorities had was to deal with these individuals through immigration remedies. So it was revoking their citizenship or their visa, sending them back to their country of origin and sometimes prosecuting them for criminal immigration fraud. But all of these are immigration remedies. It doesn't actually mean they're being tried for war crimes. A lot of these individualsnever faced an actual war crimes prosecution, were sent back to a different country where they may never face a war crimes prosecution. And that was leaving this quite significant accountability gap where the U.S. has people on our territory who are known to be or believed to be responsible for war crimes, who we have no way of holding accountable for war crimes.

Paras: That seems like a pretty massive loophole. How does the law fix it?  

Elise: So now the Justice for Victims of War Crimes Act gives U.S. courts jurisdiction to investigate and prosecute individuals who are suspected of war crimes when they're present on U.S. soil, regardless of where they committed the crime or who the victims are. The Act also closes a couple other gaps that were in the prior law, so now U.S. courts also have jurisdiction over war crimes committed against or by U.S. permanent residents. So before there was only jurisdiction if the victim or perpetrator was a U.S. citizen or a member of the Armed Forces. Now we can also look at crimes committed against and by U.S. permanent residents. And it also now grants jurisdiction over war crimes committed in whole or in part on U.S. territory. So before, if a war crime were to be committed in the U.S., U.S. courts didn't actually have jurisdiction to investigate and prosecute that act as a war crime.

This new amendment closes those gaps, and I think really the biggest impact will be in allowing for jurisdiction over those foreign nationals who later may come to the U.S.  

Paras: Right, so an example might be a Russian soldier or general who commits war crimes in Ukraine against Ukrainians. Now, if they come for vacation to Disneyland, they might face investigation and prosecution. 

Elise: In the case where you're looking at, um, a prosecution for a war crime committed by a foreign national against non-national victims in a foreign country, the U.S. Attorney General basically has to sign off saying that the prosecution can go forward. and the Secretary of State and the Secretary of Defense can object to any sort of proposed prosecutions and likely limit prosecutions from going forward.

And this is also an open question of how big of an effect this will have on the number of cases. I mean, you can certainly envision a situation where the Attorney General or the Secretary of State or the Secretary of Defense does not want a prosecution to go forward, and is going to limit it. But you know, the U.S. has never tried war crimes in U.S. courts, so we don't really know how many – how many cases this might limit, because we're starting from zero and you can't go lower than zero. We'll just have to kind of wait and see how exactly that plays out and whether these prosecutions become more politicized and only proceed in cases where the U.S. has significant interests in bringing this forward or whether it can be applied more evenly to ensure justice regardless of specific U.S. foreign policy priorities.

Paras: And we should also mention that there is something of an open question as to whether this will apply to past conduct or just to new crimes going forward. But we won't know the answer to that until a court actually hears and decides the issue. 

So, all of this seems like steps in the right direction, but what's missing? What still needs to happen to promote justice and accountability for atrocity crimes?

Elise: Yeah, so this, I mean this is a great change to the U.S. war crime statute, but there's so much more that can be done to ensure justice for atrocity crimes and promote international justice efforts. The U.S. has not really been a leader in this field, so there's other legislative changes that the U.S. should make to give us more legal tools to actually hold perpetrators of atrocity crimes accountable. 

The first thing that I would say needs to be done is passing a crimes against humanity bill. So, the U.S. does not have any sort of criminal law against crimes against humanity, and crimes against humanity can have some overlap with war crimes, but they're not the exact same thing. And crimes against humanity are widely recognized as a core international crime. They're one of the main charges that were brought in the Nuremberg Trials post World War II, which the US was a huge player in making happen, and yet we still don't have a crimes Against Humanity Law on the books, and there have been efforts to try to get one passed for I think more than a decade now. So those efforts should really move forward, and we need to get that law passed to make sure that we can actually prosecute a fuller range of international crimes.

So, we do have laws on the books for torture and genocide, but those have some gaps in their jurisdiction, kind of similar to what the U.S. war crime statute had. There's just certain situations where torture and genocide may be committed, where the US does not actually have jurisdiction. And the most visible gaps for those laws is that if a U.S. national is a victim of torture or genocide abroad, so you know, these acts being committed outside the U.S., U.S.courts can't actually prosecute those acts. And so that's a pretty basic jurisdictional change that should happen to those laws. 

But beyond the legislative changes, you also need to make sure that international justice, atrocity crimes prosecutions are actually a priority of the Department of Justice in the U.S. government. And I don't think I can say that has ever been the case. There's relatively limited financial resources that are actually given to build, investigate, prosecute these cases. War crimes and other atrocity crimes cases are really complex and expensive and time consuming to build. Mostof the time we're talking about crimes committed overseas in contexts that, you know, a lot of Americans might not be super familiar with. So you have to do a lot of background research on like, let's say, if we're looking at Syria, the conflict in Syria, how it started. If you're building a war crimes case, you have to prove there's actually an armed conflict ongoing, and then you have to actually look at the crimes themselves. So you're investigating the whole context and then you're also investigating the crimes. These cases are, they're hard to build. They require a lot of resources, so if we actually want them to be a priority, we need to dedicate the resources that are required to really bring them forward.

And then lastly, I would also say there's a lot more that can be done with supporting investigations and prosecutions in international and foreign courts. As I said before, the U.S. is not a member of the International Criminal Court. I personally think that should change, the U.S. should ratify the Rome Statute. Short of that happening, there's also a lot more the U.S. could do to support the ICC. We could be sharing more information and evidence with the court. We could support their prosecutions. We could better support prosecutions in other foreign and international courts. Theseefforts just need to be a higher priority within U.S. government policy. 

Paras: Certainly a lot to do and some signs of progress. Elise, thanks so much for joining us.   

Elise: Thanks for having me.

Paras: The Just Security podcast is produced in partnership with NYU's American Journalism Online program. AJO trains students to become world class journalists, no matter where they live or work. Find out more about AJO, and how you can apply, in our show notes.   

This episode was hosted by me with co-production and editing by Tiffany Chang and Michelle Eigenheer. Our music is the song “The Parade” by Hey Pluto! Special thanks to Clara Apt and Elise Baker. 

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