Introduction
In 2010, Jorge Vinicio Sosa Orantes fled his home in Los Angeles to evade Immigration and Customs Enforcement (ICE) agents that were closing in to arrest him for immigration fraud. Sosa is a Guatemalan ex-commando who participated in the Dos Erres massacre of 250 Guatemalan villagers in 1982 during the Guatemalan Civil War and had been living in Los Angeles as a fraudulently naturalized American citizen. The indictment alleged that Sosa oversaw the slaughter of men, women and children who were dumped in a well; he proceeded to fire his weapon and throw a grenade down the well. The rape and murder of non-combatants were undisputedly war crimes under the The Geneva Conventions and Rome Statute of the International Criminal Court, but Sosa was only convicted of two minor crimes: making false statements in immigration proceedings and unlawful procurement of naturalized U.S. citizenship. If prosecuted for war crimes in the United States, which would allow the death penalty for such actions, he received the maximum sentence for immigration fraud: 10 years.
The Sosa arrest and trial highlights a legal “gap” in U.S. criminal law. Until recent amendments to the War Crime statute, foreign war criminals who had committed war crimes outside of U.S. jurisdiction could avoid prosecution in the United States based on jurisdictional limitations in the War Crimes statute, effectively shielding the criminals from domestic U.S. jurisdiction and making the U.S. a safe haven. Despite the United States’ obligations under the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War “to enact any legislation necessary to provide effective penal sanctions” for persons committing war crimes and “bring such persons, regardless of their nationality, before its own courts,” the 1996 War Crimes Act only criminalized war crimes committed by or against U.S. citizens or members of the military.
The war in Ukraine brought new attention to war crimes and atrocities. Ukrainian President Volodymyr Zelensky spoke before Congress urging it to help Ukraine get justice for the war crimes committed by Russia. This pressure created the political capital necessary for Congress to fill the gap in the War Crimes Act. On January 5, 2023, the Justice for Victims of War Crimes Act (the “2023 Act”) came into effect. The 2023 Act expanded the scope of U.S. jurisdiction to allow for the prosecution of war criminals who are present in U.S. territory, and is a significant step for the U.S. in fulfilling its Geneva Convention obligations and providing justice for victims of atrocities. However, the 2023 Act may still still fail to provide substantive justice for victims of war crimes because (1) the substantive offenses are limited to war crimes; (2) the Act may not be able to apply retroactively; and (3) the Act’s enforcement is subject to political will.
Comparing the 2023 Justice for War Crimes Act and the War Crimes Act of 1996
First, the War Crimes Act of 1996 only allowed for the prosecution of war criminals when the “person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States.” While the State Department recommended that the War Crimes Act have universal jurisdiction, Congress rejected the proposal out of fear that it would entangle the U.S. in international conflicts. The 2023 Act remedied this, expanding U.S. jurisdiction whenever (1) the offense occurs within the United States; (1) the victim or offender is a national of the United States, permanent resident, or a member of the Armed Forces; or (3) the offender is present in the United States. The 2023 Act also removes the previously-applicable 5 year statute of limitations. However the Act still limits jurisdiction and the ability to obtain justice by requiring approval from the Attorney General (“AG”) to prosecute and certify that prosecution “is in the public interest and necessary to secure substantial justice.” The AG must also consider the possibility of removing the offender to another jurisdiction and U.S. interests when the jurisdiction is based solely on the offender’s presence in the U.S. The AG’s prosecutorial discretion helps to alleviate the concerns raised when the 1996 Act was passed that universal or “present in” jurisdiction would implicate the U.S. in international conflict. Although such jurisdiction ensures accountability for war crimes, it also entangles the courts and justice system in international politics where prosecution of foreign citizens could be met with retaliatory measures and opens the courts to a potential flood of litigation. While the 2023 Act has been largely positively received, it is still relatively narrow in scope and commentators point to numerous areas where it falls short.
Substantive Limitations: Crimes Against Humanity and Command Responsibility
Critics of the 2023 Act argue that closing the jurisdictional loophole does not go far enough. The 2023 Act only criminalizes war crimes, defined as “a grave breach” of the Geneva Conventions or Common Article 3 or a breach of Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV. A “grave breach” under the Geneva conventions includes torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation or maiming, causing serious bodily injury, sexual assault, rape, and hostage taking, and the Hague Convention IV governs methods of warfare and prohibits certain egregious weapons and tactics. Notably, neither these Conventions, nor the 2023 Act, covers crimes against humanity or extend liability to those in command who are willfully blind to the war crimes of their subordinates, or rather, those who “knew or should have known about the crimes being planned or committed and failed to take appropriate action.” While some of the crimes against humanity not covered by the 2023 Act might be covered by international criminal common law or by other U.S. legislation such as the torture statute (18 U.S.C. § 2340A, criminalizing torture), the Torture Victim Protection Act (22 U.S.C. § 7101 et seq., allowing for civil actions for torture), or the Alien Torts Statute (28 U.S.C. § 1350, allowing for civil suits for violations of the “law of nations or of a treaty of the United States”), the piecemeal legislation continues to leave jurisdictional and substantive gaps and results in some crimes being criminalized while others are redressed civilly or not at all.
These gaps send an inconsistent message as a country that “seek[s] to advance accountability for war crimes, genocide, and crimes against humanity around the world.” The lack of a coherent criminal framework hinders U.S. prosecutorial flexibility to hold perpetrators of mass atrocities accountable for their actions and the status and influence of international criminal law as well as the United States position as an advocate and leader for justice and accountability. How can the United States “urge Iraq to codify genocide, war crimes, and crimes against humanity into its domestic penal code” when its own criminal code is lacking? By refusing to consistently comply with obligations under the Geneva Conventions, the U.S. undermines one of the major benefits of an international criminal law regime: deterring war crimes by placing war criminals on notice that their violations of international law will always be within the reach of every nation in the world.
Additionally, Human Rights Watch has called for “command responsibility.” Under U.S. federal law, war criminals can only be prosecuted as principals, accomplices, or conspirators, but there is no mechanism to hold those with superior responsibility liable. Refusal to extend liability to those making decisions is contrary to customary international law and the U.S.’s own position after World War II, where many of the tribunals created by the United States recognized command responsibility as a mode of liability for war crimes. However, there is a possibility that courts interpret the act as encompassing command responsibility. The Eleventh Circuit and Sixth Circuits have found that the Torture Victim Protection Act imposes liability on commanders who fail to punish subordinates who commit atrocities. Relying on a senate report that described a World War II era case which acknowledged command responsibility, the court found there was legislative history to support including command responsibility in the scope of the TVPA. Given the World War II case was addressing war crimes, there is arguably even clearer legislative intent and Congressional acknowledgement of command responsibility for war crimes.
Procedural Limitations: Retroactivity
Putting aside concerns about the scope of the Act vis-a-vis crimes against humanity and Commander Responsibility,, commentators are concerned that the Act does not contain a retroactivity clause.There is some debate as to whether the U.S. could prosecute war crimes falling within the Act’s scope that were committed prior to the Act’s passing in 2023. Michel Paradis, a leading human rights lawyer and Columbia Law faculty member argues that retroactive application would violate the ex post facto clause found in Article I, Section 9, Clause 3 of the Constitution which prohibits retroactive criminal punishment. On the other hand, some argue that the Act does not “declare unlawful what had been lawful before” but merely defines U.S. jurisdiction over that which had already been unlawful under international and domestic laws.
Ultimately a violation of the ex post facto clause would need to be decided by the courts, and if retroactive application is prohibited by the Constitution, U.S. jurisdiction will remain severely limited, undermining the purpose of the amendments.Without retroactive application, any foreign war criminal who committed their crime prior to 2023 found in U.S. territory could not Constitutionally be prosecuted. This interpretation would exclude most of the war crimes committed in Ukraine. Paradis stresses that, in the face of potential ex post facto clause limitations, if the U.S. chooses to include crimes against humanity and/or give the U.S. universal jurisdiction in line with the Geneva Conventions, it is necessary to expand the scope of the Act as quickly as possible because war criminals who committed their crimes prior to such changes would not be able to be prosecuted.
The Certification Provision and Enforcement
Finally, because the Act requires approval and certification from the Attorney General, it is conceivable that, even when a bona fide war criminal is present in the United States, that criminal will not be prosecuted for reasons unrelated to their crime. Although this certification provision was likely added to give the U.S. flexibility to consider its foreign relations and domestic needs, prosecutorial discretion also risks overshadowing justice with political concerns. The AG is an politically appointed executive branch position, and the President, therefore has final say with respect to prosecution. However, different administrations have approached accountability under international criminal law differently. Recently, the Biden Administration increased efforts to promote accountability under international criminal law and U.S. cooperation with the International Criminal Court (ICC) by supporting the documentation and investigation processes for war crimes in Ukraine. However, when the ICC opened an investigation into war crimes in Afghanistan, the Trump Administration sanctioned the ICC in 2020 by denying ICC officials visas and freezing their accounts. Thus, the Attorney General’s approval for prosecution depends on political sentiment and may deny victims the justice they deserve. Considering the Act does not provide a civil cause of action (except perhaps under the Alien Tort Statute, which allows for civil actions by a foreign national for torts in violations of international law that take place in the United States) the need for political consent for prosecution could make justice for victims of war crimes particularly difficult. Moreover, the United States is not a party to the Rome Statute of the International Criminal Court. Should the Attorney General not approve a prosecution, the U.S. could again become a safe haven for war criminals attempting to evade the ICC’s jurisdiction.
Conclusion
The Justice for Victims of War Crimes Act is a significant step towards complying with international standards and U.S. obligations under the Geneva Conventions. However, there are still flaws which risk substantive justice for victims and undermine the U.S. leadership in the field of international criminal law. If the United States truly wishes to stand with victims in Ukraine and around the world, legislators need to go further and criminalize all atrocities including crimes against humanity and allow the criminal code to be enforced free from political machinations. Other countries, such as Germany, have gone as far as establishing universal jurisdiction over war crimes and crimes against humanity. Current U.S. federal law establishes universal jurisdiction over similarly severe international crimes like piracy; torture; air hijacking, violence against foreign officials; hostage taking; violence against ships; and certain terrorist actions. It would thus be consistent with U.S. law concerning similar matters to extend universal jurisdiction to war crimes, and it would align the U.S. with its obligations under the Geneva Conventions and other countries’ practice with respect to war crimes. But if Paradis is correct and future amendments are subject to the ex post facto clause limitations, Congress must close the loophole as quickly as possible.
While immigration law may on its face allow the U.S. government to expel and punish offenders who fall into the legal gaps in the criminal code, this alternative remedial scheme is not an adequate solution in terms of justice for the victims. A significant part of promoting accountability and justice is calling atrocities by their name and punishing them as such, recognizing victims’ pain and right to justice.
Author Biography: Audrey Stone is a J.D. candidate at The George Washington University Law School and a Senior Moderator of the ILPB.
Editors: Javid Rahimli & Alexander Goodrich.