The United States and the International Justice Enterprise

In a surprising political and legal turn, top Senate lawmakers agreed last week on bipartisan draft language for a bill to amend the War Crimes Act of 1996. The proposed change would expand the United States’ jurisdiction to prosecute perpetrators of war crimes to include non-nationals (e.g., members of the Russian military) found on U.S. soil. Passing such legislation would represent a significant but welcome departure from the United States’ current approach to advancing international justice. However, it would still fall disappointingly short of the full-fledged embrace of universal jurisdiction that would induct the United States as an active and committed participant in international justice.

To understand the significance (and basic relevance) of the draft bill, a bit of legal history is in order. The signing of the Geneva Conventions in 1949 established the basis for modern international humanitarian law. All 196 countries have adopted those conventions, which legally obligate state parties to search for alleged and suspected perpetrators of war crimes—regardless of their nationality—and, under the principle of aut dedere aut judicare, either bring them before a domestic court or make them available to stand trial in another country.

To properly equip states to fulfill such a hefty and laudable charge, the conventions provide for (and indeed mandate) universal jurisdiction, sanctioning countries to exercise legal authority over individuals, including non-citizens, accused of heinous and otherwise extraterritorial international law violations. The logic behind such expansive authority is that the commission of certain crimes (e.g., war crimes or, historically, piracy) renders their perpetrators hostes humani generis, “enemies of all [hu]mankind.” It follows, therefore, that every nation has an equal and shared interest in and right to prosecute these individuals.

To conform to such provisions and mandates, the legal systems of some countries—referred to as “monist” states—allow international treaties to take direct effect in “domestic law without separate implementing legislation.” Other, “dualist” nations, like the United States, require bespoke codification to integrate and activate international laws within their domestic legal systems.

Here is where the 1996 War Crimes Act comes into play. The law establishes criminal procedures and imposes harsh penalties for war criminals—but only if they or their victims are members of the U.S. armed forces or are U.S. citizens. This fine print means that the United States has never fully committed to satisfying its obligations under the Geneva Conventions. Since ratifying the treaties, the country has extradited alleged foreign war criminals to countries with the capacity (and moxie) to hold them accountable. Many such countries are in fact U.S. allies that have exercised their universal jurisdiction over war crimes increasingly often to address the lacunae in multilateral efforts to achieve international justice and accountability. Just this January, a German court finally made a member of Syrian President Bashar al-Assad’s regime answer for barbarous offenses committed against civilians after international ineffectiveness and obstruction allowed for years of impunity. Thus, while expanding the War Crimes Act is most certainly warranted, it would simply bring the United States (at last) into compliance with the Geneva Conventions rather than induct it as a kind of true champion of international justice.

If the bipartisan draft bill seems like a seismic shift from recent U.S. legal discourse, it is consistent with a longer American tradition of involvement in international justice that actually antedates the U.S. Constitution. The Continental Congress, recognizing the importance of providing avenues for legal remedy in instances of international law violations, passed a resolution in 1781 directing U.S. states to “provide expeditious, exemplary, and adequate punishment” for breaches of U.S. treaties and “the law of nations” and to authorize the institution of suits for damages. Building on this foundation, the first U.S. Congress enacted the Alien Tort Statute (ATS) as part of the Judiciary Act of 1789, thereby granting district courts jurisdiction over civil claims “by an alien for a tort only” that violated a U.S. treaty or the law of nations.

Jurisprudence involving ATS remained largely dormant until 1980. That year, the U.S. Court of Appeals for the Second Circuit issued a landmark decision, Filártiga v. Peña-Irala, involving allegations of “deliberate torture perpetrated under the color of authority” made by Paraguayan citizens against another Paraguayan, all of whom had relocated to the United States. The court held that, under the ATS, foreign citizens could file claims for contraventions of universally accepted international legal norms, such as torture, against other foreign nationals found on U.S. soil, even if the contraventions themselves had taken place abroad. The decision set a precedent that litigants could seek redress under the ATS for international human rights violations in U.S. courts, creating a form of civil universal jurisdiction that allowed U.S. courts to participate in the international justice enterprise.

On the criminal side, U.S. courts, during the early history of the republic, applied universal jurisdiction according to its original purpose, namely to regulate piracy, which was deemed “an offence against the universal law of society,” with pirates being “enem[ies] of the human race.” More recently, Congress has domestically codified other international legal instruments with provisions for universal jurisdiction, such as the 1991 Torture Victim Protection Act and the federal anti-torture statute. The United States also boasts a long history of diplomatic cooperation on international criminal justice, including through extradition and mutual legal assistance, having entered into its first extradition treaty in 1794. Furthermore, the so-called Lieber Code—field instructions for the U.S. armed forces disseminated by President Abraham Lincoln—is recognized by none other than the International Committee of the Red Cross as the first codification of the laws of war. Finally, in 2000, the United States signed the Rome Statute of the International Criminal Court (ICC), an instrument that empowers its parties to consign a degree of jurisdiction to the international tribunal over such crimes as genocide, crimes against humanity, and war crime in cases when such charges are brought before the court.

Since the turn of the century, however, the United States has shirked from pulling its weight in the post-1945 collective pursuit of international justice. This includes the George W. Bush administration’s ostentatious decision to “unsign” the Rome Statute in May 2002 and the enactment of the American Service-Members' Protection Act, affectionately dubbed the “Hague Invasion Act,” shortly after.

The aforementioned Filártiga precedent was likewise short-lived. Starting with a 2004 ruling, the Supreme Court has neutered the ATS’ applicability over the last two decades, strictly applying the “presumption against extraterritoriality,” described by former Chief Justice William Rehnquist as a “longstanding principle of American law,” and establishing a high burden for proving that an ATS claim sufficiently “touch[es] and concern[s]” the United States. The Court has thus severely circumscribed the ability of victims to seek redress in U.S. courts for heinous crimes committed abroad.

Upon signing the War Crimes Act, President Bill Clinton stated that, “in keeping with [its] leadership role,” the United States could and should “do even more to strengthen the law in [the] area” of war crimes. He specifically called for expanding the act’s scope to include “crimes committed by non-U.S. persons against non-U.S. victims,” bringing the country into fuller compliance with the Geneva Conventions. This is precisely what the draft legislation looks to achieve. The bill’s cosponsors, Senators Charles E. Grassley (R-IA) and Richard J. Durbin (D-IL), believe that it does indeed stand a chance of becoming law, particularly given the torrent of evidence proving the commission of war crimes in Ukraine. The draft therefore provides some hope that the door might be opening for greater U.S. participation in and support for international justice. It should not be mistaken for leadership, however. For that, the United States would have go beyond mere fulfillment of treaty obligations—perhaps by submitting itself to ICC jurisdiction (for real this time).