Background

Each of the four Geneva Conventions of 1949 required States to “enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches” of the Conventions.Footnote ² Despite ratifying each of the Conventions, however, the United States had never enacted the called-for domestic penal legislation until 1996 (thirteen months after the Srebrenica genocide).

During the intervening decades, it was generally believed that other U.S. laws already “provided adequate means of prosecution” for war crimes.Footnote ³ Indeed, ahead of passing the 1996 statute, Congress found that many war crimes, including use of weapons of mass destruction, terrorism, torture, genocide, killing of protected persons, and hostage taking, could be prosecuted under then-existing U.S. law. But others—such as the killing of a prisoner of war—could not.Footnote ⁴ Congress further came to recognize that there were major gaps in the ability to prosecute those who committed certain war crimes against Americans, or former military service members no longer subject to court-martial.Footnote ⁵ Congress passed the War Crimes Act (WCA)Footnote ⁶ to fill those gaps and carry out its international obligations under the Geneva Conventions.

However, the WCA remained deficient, only allowing prosecutions when either a victim or the perpetrator was a U.S. national or a member of the U.S. armed forces. Unlike its sister statutes concerning genocide and torture, the WCA did not allow the United States to prosecute war criminals whose only connection to the United States was their presence when arrested for their crimes elsewhere.Footnote ⁷ Failing to cover the vast majority of war criminals who had gone to the United States, were already there, or would eventually travel there, there was not a single prosecution under the 1996 statute.Footnote ⁸

Rather, for many years (both pre- and post-dating the passage of the WCA), other measures were used against war criminals who could not be prosecuted in the United States. For decades, the U.S. Department of Justice's Office of Special Investigations brought cases against Nazi war criminals under immigration laws to remove them from the country and, if the defendants had fraudulently obtained citizenship, denaturalize them. More recently, Congress passed legislation for designating and sanctioning those who commit the specific war crime of using human shields.Footnote ⁹ Still other atrocities that could not be prosecuted under the WCA were instead charged under U.S. immigration and counterterrorism laws.

The Statute

The JVWC was introduced three months after Russia's February 2022 invasion of Ukraine. It passed the Senate by unanimous consent on December 21, 2022—the same day Ukrainian President Volodymyr Zelenskyy addressed a joint session of Congress, and passed the House without objection the following day.

The straightforward legislation makes two key changes to the U.S. federal criminal code: it allows the United States to exercise universal jurisdiction against alleged war criminals found in the United States and it removes the five-year statute of limitations from war crimes cases. The criminal treatment of war crimes now more closely mirrors U.S. laws on genocide, torture, and the use of child soldiers, which cover suspected perpetrators present in U.S. territory, regardless of their nationality.

The jurisdictional change enacted via the JVWC had been recommended to Congress before the original War Crimes Act passed in 1996. Both the U.S. Department of Defense and the Department of State requested that Congress empower the government to prosecute war crimes committed anywhere by anyone, so long as the perpetrator is found in the United States. Both agencies characterized that broader scope as necessary to fulfill the United States' obligations under international law.

At that time, however, Congress decided that, “Domestic prosecution based on universal jurisdiction could draw the United States into conflicts in which this country has no place and where our national interests are slight. In addition, problems involving witnesses and evidence would likely be daunting.” It determined that extraditing war criminals to foreign nations or international tribunals was an adequate substitute, and that providing for universal jurisdiction would “in all likelihood be purely symbolic,” as universal jurisdiction had never been exercised as such up to that time.Footnote ¹⁰ Although President Clinton signed the legislation into law, he made known his disagreement with Congress's conclusion on those points, using his Signing Statement to make clear that the legislation's scope ought to be expanded further.Footnote ¹¹

Congress appears to have resolved its foreign policy concerns via the JVWC's requirement for political-level certification that any war crimes prosecutions are “in the public interest and necessary to secure substantial justice.” These non-delegable certifications must be made by an Assistant Attorney General or higher for matters involving U.S. nationals, or by the Attorney General or Deputy Attorney General for all other cases. The Departments of Defense and State may offer their views to the certifying authority but, whether they support or object to the Justice Department's proceeding with any given case, the ultimate certification is not reviewable by the courts.Footnote ¹²