WASHINGTON — Top senators from both sides have reached agreement on a bill that would expand a 1996 war crimes law to give U.S. courts jurisdiction over cases involving atrocities committed overseas even though neither side is a US citizen, in the latest response to Russia’s apparent targeting of civilians in Ukraine.
The idea behind the draft, a copy of which was obtained by The New York Times, is that if someone who committed war crimes overseas later comes to the United States and is discovered, that person could be prosecuted for these actions by the Department of Justice. The killings of civilians and the discovery of mass graves in parts of Ukraine that had been occupied by Russian troops sparked an international outcry.
Despite the partisan polarization that has generally stalled Congress, supporters of the bill — which is primarily sponsored by top Judiciary Committee lawmakers, Senators Charles E. Grassley, Republican of Iowa, and Richard J. Durbin, Democrat of Illinois – believe the measure has a realistic chance of becoming law quickly.
Senators are still in talks with House members about a possible companion bill and plan to table the measure later this week, committee staffers said.
“The United States must not be a haven for war criminals seeking to escape justice in their home countries,” Grassley, the bill’s author, said in a statement to The Times. . “This bill sends a strong message that people who commit war crimes are not welcome here and must be punished, regardless of where their offense was committed or who they were victimized.”
Mr Durbin said the measure would fill “a glaring gap in our laws” to ensure foreign war criminals in the United States could be prosecuted.
“Perpetrators of unspeakable war crimes, such as those unfolding before our eyes in Ukraine, must be held to account,” he said in a statement. “We have the power and the responsibility to ensure that the United States is not used as a safe haven by the perpetrators of these heinous crimes.”
Two former Judiciary Committee chairs — Patrick J. Leahy, Democrat of Vermont, and Lindsey Graham, Republican of South Carolina — are also lined up to co-sponsor the bill, committee staffers said.
Senators are lobbying their caucuses to back the bill, hoping to pass it by unanimous consent and avoid the committee process.
However, discussions on the subject are less developed in the House.
Passed by Congress in 1996, the War Crimes Act incorporates part of the international law of war into US domestic law. The act made it a crime, subject to prosecution by the Department of Justice, to commit a “grave breach” of the 1949 Geneva Conventions.
Serious offenses include the willful killing of civilians, torture, biological experiments and “the mass destruction and appropriation of property, not justified by military necessity and carried out unlawfully and without motive”.
But while similar laws in other countries, such as Germany, provide universal jurisdiction over such offenses, Congress in 1996 limited the scope of the United States. The law only covers cases where an American is the perpetrator or victim of a war crime.
The bill introduced by Mr. Grassley and Mr. Durbin would eliminate this restriction, ensuring that the law covers any situation in which “the offender is present in the United States, regardless of the nationality of the victim or the offender”. . It would also eliminate any statute of limitations for war crimes, so prosecutions could be brought years later.
A 1996 House committee report said the Pentagon and the State Department had both urged Congress to enact more universal legislation along the lines of Mr. Grassley and Mr. Durbin’s bill. . But lawmakers decided it would be reckless, fearing it could create foreign relations issues.
“Domestic suits based on universal jurisdiction could embroil the United States in conflicts in which this country has no place and where our national interests are weak,” the report said.
The bill attempts to address this concern by requiring the Attorney General to certify in writing that such a prosecution “is in the public interest and necessary to obtain substantial justice.”
Russo-Ukrainian War: Main Developments
This provision, guaranteeing a very high-level review of any charges under the law, echoes a guarantee in other laws that could create foreign relations issues, such as laws against the murder of Americans in the jurisdiction. from another country.
The 1996 report also stated that restricting war crimes law to situations involving Americans would not mean that a foreign war criminal discovered in the United States would enjoy impunity, as that person could be extradited to a court. competent foreigner for prosecution.
Lawmakers at the time cited the examples of international tribunals that the United Nations Security Council had recently established for war crimes in Rwanda and the former Yugoslavia.
However, a few years after the 1996 law, the United Nations moved from creating ad hoc tribunals for particular conflicts to creating a permanent tribunal in The Hague to prosecute war crimes, the International Criminal Court.
But the United States has balked, with some lawmakers and officials worried the court might try to prosecute American soldiers. A 1999 law prohibits funding the court under any circumstances, and a 2002 law prohibits giving it non-financial assistance, such as by lending it staff or sharing information – although there are some exceptions.
The International Criminal Court has opened an investigation into war crimes in Ukraine, and some senators, like Mr. Graham, have expressed an interest in removing those barriers. The international tribunal, they say, seems best placed to indict Russian generals and possibly even President Vladimir V. Putin.
Mr. Durbin also expressed interest in codifying into US law other internationally prohibited atrocities such as crimes against humanity, and allowing victims to bring civil suits against foreign perpetrators in US courts.
But while early talks touched on adding these provisions – particularly the last one – to an expansion of the War Crimes Act, Mr Grassley reportedly pushed to keep the bill streamlined and focus on areas where there seemed to be the broadest bipartisan consensus.