Earlier this month President Biden ratcheted up the rhetoric and called for a “wartime trial” of Russian President Vladimir Putin. The president’s comments followed Secretary of State Antony Blinken condemning “atrocities by Kremlin forces in Bucha and across Ukraine” and stressing that the United States was “pursuing accountability using every tool available.”
All this tough talk is a façade — a superficial exterior masking the hollowness within. In terms of Blinken’s analogy, the U.S. war crimes tool box is empty, and willfully so. That’s because for more than 70 years, the United States has doggedly refused to meet its obligation under the 1949 Geneva Conventions to enact legislation to hold accountable those who commit serious law of war violations.
The obligation is part of what’s called the “grave breach” provisions, which are clearly laid out in the Geneva Conventions. The United States (and every country in the world) has signed and agreed to follow the Conventions. Yet the United States, like much of the world, has failed to live up to its obligations with respect to the grave breach provisions.
Perhaps sufficient awareness of America’s fecklessness could prompt a legislative correction, and one is to be introduced in the Senate. But Congress already has tried and failed to do the right thing once before.
In 1996, Congress was considering legislation that eventually became the War Crimes Act. This was an opportunity finally to do what the United States had said it would do in signing the Geneva Conventions after World War II — enact war crimes legislation with actual teeth. Despite the Department of Defense pointing out that the United States was not meeting its Geneva Convention obligations with respect to the grave breach provisions and suggesting a legislative fix, Congress managed to snatch defeat from the jaws of what could have been a belated victory.
The War Crimes Act is an important law, but it doesn’t come close to meeting America’s Geneva Convention obligations. True enough, the act enables the United States to prosecute those who commit serious violations of the Geneva Conventions — but only if the offender and/or a victim is a U.S. national. Absent that nationality connection, the United States cannot prosecute a foreign war criminal.
As bad as that may sound, it’s actually worse. Presently the United States is a potential safe haven for most war criminals. Imagine a notorious Russian national war criminal was physically present in the United States and boldly walking on the National Mall in Washington. Unless one of his victims was a U.S. national, under the War Crimes Act, the United States lacks jurisdiction to take any criminal action. The most the U.S. could do is detain and transfer such a suspect to a country or tribunal with the legal mechanisms to hold him accountable. If there was no such country or tribunal, the U.S. could potentially be stuck with the individual, war crimes and all.
It doesn’t have to be this way. Recently Sen. Dick Durbin, D-Ill., said on the Senate floor that he would introduce The War Crimes Accountability Act “in the coming days.” This legislation would extend jurisdiction of the War Crimes Act to include those who committed or ordered to be committed serious violations of the Geneva Conventions and who are in the United States.
Durbin’s proposal would allow the United States to at least meet the spirit of the grave breach provisions of the Geneva Conventions and prevent the U.S. from being a safe haven for foreign war criminals
The United States can play a pivotal role in the eventual accountability processes resulting from the war between Russia and Ukraine. But America cannot credibly ask other countries to do that which we refuse to do ourselves — enact legislation to ensure the ability to hold war criminals accountable when they are inside our borders.
