War Crimes

General William Tecumseh Sherman is credited with uttering the timeless phrase, "War is hell." But you might not know who Sherman is. He's the famed Union leader who served during the American Civil War.

In public consciousness, war crimes are easily called to mind these days. After all, the Afghanistan war ended not too long ago. War crimes seem to be taking place all the time in the Ukraine. Since the 2022 Putin-Russian invasion of Ukraine, the realities of such crimes have been in the news daily. These crimes are indescribable, horrific, and impossible to comprehend. It is impossible to appreciate them unless they're experienced first-hand on the battlefield. Yet even in the heat of war, there are certain serious violations of the laws that are considered beyond the realm of human decency. They are, therefore, deemed to be criminal.

This article will look at international crimes and U.S. federal war crimes. This section will include how war crimes are defined and how criminal responsibility is apportioned. It will examine these issues within the jurisdiction of the International Criminal Court and U.S. courts. We will also address who can be prosecuted as a war criminal, and what a person should do when charged with a federal criminal offense.

War Crimes and International Criminal Law

The laws and customs of war and customary international law dictate what conduct is permissible in battle. Under the Geneva Conventions of 1864, 1929, 1949, 1977, and 2005, a variety of legal standards must be observed during combat. These conventions seek to protect civilian non-combatants or prisoners of war. They also seek to protect detainees and sick and wounded soldiers from the atrocities of war. The most famous examples of successful war crimes prosecutions under the Geneva Conventions are:

The Nuremberg war crimes trials of World War II. At trial, 24 Nazis were sentenced to death by the Allies for crimes against humanity. They were also sentenced for violating human rights committed during the Holocaust.

The investigation and prosecution of war crimes in the Congo in 2002. This resulted in charges against six rebel leaders in that armed conflict. It also resulted in the conviction of Bosco Ntaganda on 18 counts of war crimes. Ntaganda was also convicted for crimes against humanity, including ethnic cleansing.

The International Criminal Court

The International Criminal Court (ICC) is the primary international criminal court. The ICC prosecutes serious crimes that concern the international community. It operates on a universal jurisdiction. It was established in 2002 and investigates and charges cases involving four types of crimes:

Genocide:

• "Acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group"
• Examples of genocide include killing and inducing physical and mental injury; examples also include creating conditions of life that bring about the destruction of a group of people
• It may also take the form of preventing births and transferring children to groups beyond their places of birth or families of origin

Crimes Against Humanity:

• "Acts ... committed as part of a widespread or systematic attack directed against any civilian population"
• Examples include murder, extermination, and enslavement; examples also include deportation, imprisonment, and torture
• Crimes against humanity may take place with the persecution of identifiable groups or apartheid
• They can also occur with forced disappearances, inhumane acts, and forms of sexual violence. Examples of sexual violence include rape, sexual slavery, and forced pregnancy. They may also take the form of forced sterilization

War Crimes:

• "Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property"
• Examples of these include murder, torture, and biological experiments; they may also include serious injury, extensive destruction of property, and pillaging; other examples are taking hostages, conscripting children, and unlawful deportation
• Mistreating prisoners of war and attacking peacekeepers also qualify as war crimes; organizing attacks against peacekeepers also qualify

Crimes of Aggression:

• "The use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations"
• Examples include invasion, bombardment, and blockades; other examples are sending armed bands of mercenaries into a territory and other acts of war

War Crimes Tribunals

Other international war crimes tribunals have been created to prosecute war crimes. They are specific to certain geographic regions. Examples of them are:

The International Criminal Tribunal for the former Yugoslavia:

• An ad hoc court located at The Hague, Netherlands
• It convicted the Bosnian Serb military commander Ratko Mladic, the 'Butcher of Bosnia'
• It convicted him on ten counts of genocide, war crimes, and crimes against humanity

The International Criminal Tribunal for Rwanda:

• It convicted 85 individuals of genocide, crimes against humanity, and violations of Common Article 3
• It also convicted those people of violating Protocol II of the Geneva Conventions
• The tribunal was criticized for failing to prosecute the Rwandan Patriotic Front or its leader for their actions against civilian populations

The Involvement of the U.S. in the Creation of the International Criminal Court

The U.S. participated in negotiations that resulted in the creation of the ICC. The ICC is governed by the Rome Statute, but ultimately the U.S. voted against the Rome Statute for several reasons:

Article 17 of the Rome Statute is intended to pierce the veil of domestic proceedings that are not prosecuted vigorously enough ("sham trials"). The U.S. was concerned that a failed federal or military prosecution would result in an ICC referral. It worried that this would happen on the grounds that the national process was deficient.

With no right to a jury at the International Criminal Court, U.S. leaders would suffer criticism for shredding the Sixth Amendment constitutional right to an impartial jury for members of its military.

The jurisdictional provisions of the Rome Statute (Article 12) purport to bind non-party nations. This was one given rationale for U.S. opposition at the time.

Additional concerns were raised over the amount of power and discretion given to the ICC prosecutor. They were also raised about a desire for Security Council review.

In 2000, then-President Bill Clinton signed the Rome Statute but did not submit it for ratification. In 2003, then-President George W. Bush "unsigned" the international treaty. He also told the United Nations that the U.S. did not have any obligations toward the treaty.

The U.S. does not participate in the ICC but is an "observer." Other non-signers to the Rome Statute of the International Criminal Court include Russia and China. They also include Israel, Iraq, Libya, Qatar, and Yemen.

What Constitutes a 'War Crime' Under U.S. Law?

The U.S. exercises control over the prosecution of its own military. It has resisted all efforts to subject U.S. military forces to international tribunals. Prosecution of war crimes in U.S. courts is based on the Geneva Conventions and federal laws. U.S. war crimes cases can be heard in a military court or a civilian federal court.

The War Crimes Act, codified in 18 U.S.C. § 2441, criminalizes specific acts known as "grave breaches" from Common Article 3 of the Geneva Convention. Grave breaches are defined as acts committed against persons or property protected by the Convention. Examples are "willful killing, torture or inhuman treatment." This also includes biological experiments. It also includes willfully causing great suffering or serious injury to body or health.

The War Crimes Act was amended through the Military Commissions Act of 2006. The amendment limited the scope of coverage to specific acts or attempts, including:

• Torture
• Cruel treatment
• Performing biological experiments on humans
• Murder
• Mutilation or maiming
• Intentionally causing serious bodily injury
• Rape and sexual assault or abuse
• Taking of hostages

It's important to note that these offenses don't need to take place during a time of war for them to qualify as war crimes.

Each of these listed crimes has a specific meaning. It is best to seek the advice of a federal criminal defense lawyer to learn more about how each crime is defined by this law.

Prosecution, Time Limits, and Penalties

War crimes charges under federal law can be brought by the U.S. government against U.S. nationals or members of the U.S. armed forces who commit war crimes. They may also be brought against people who commit war crimes against the U.S. military or U.S. nationals. The crimes may take place inside or outside the United States.

There is no statute of limitations under U.S. federal law for taking human life. This means that a person who is alleged to have committed murder can be charged immediately or decades after the crime.

Convictions for charges of war crimes carry severe penalties. Examples of these penalties include life imprisonment or the death penalty (if the conduct resulted in the death of one or more victims).

War Crimes: Related Resources

• Can the International Criminal Court Punish Americans?
• Revising the Laws of War to Account for Terrorism
• Torture Claims Dismissed Under Military Contractor Immunity
• The Hague Convention: What Was Said and Established Concerning War Crimes
• International Law Enforcement: Interpol and Its Red Notices (Arrest Warrants)

Get Legal Help

While it is rare that anyone is charged with a violation of the War Crimes Act, every federal prosecution has serious implications. Against the backdrop of international humanitarian law, war crimes can be a complicated legal terrain to navigate. Knowing the laws and details of your charges is half the battle. But having a strong advocate on your side can make the difference between an acquittal and a conviction. Learn more about your legal options by contacting an experienced criminal defense attorney in your area today.