War Crimes

General William Tecumseh Sherman, famed Union leader during the American Civil War, is credited with uttering the timeless phrase, "War is hell." Following the conclusion of the Afghanistan war and given the alleged war crimes taking place during the recent 2022 Putin-Russian invasion of Ukraine, the realities of such crimes are oftentimes indescribable, horrific, and impossible to comprehend unless 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 and therefore criminal.

This article will look at international crimes and U.S. federal war crimes, including how war crimes are defined, how criminal responsibility is apportioned, the jurisdiction of the International Criminal Court as compared to U.S. courts, 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

Under the laws and customs of war and customary international law, the Geneva Conventions of 1864, 1929, 1949, 1977, and 2005 seek to protect civilian non-combatants, prisoners of war, detainees, and sick and wounded soldiers from the atrocities of war. Among the most famous international examples of successful war crimes prosecution under the Geneva Conventions are:

• The Nuremberg war crimes trials of World War II where 24 Nazis were sentenced to death by the Allies for crimes against humanity and violations of human rights committed during the Holocaust.
• The investigation and prosecution of war crimes in the Congo in 2002, which resulted in charges against six rebel leaders in that armed conflict, and the conviction of Bosco Ntaganda on 18 counts of war crimes and crimes against humanity including ethnic cleansing.

The International Criminal Court

The International Criminal Court (ICC) is the primary international court set up to prosecute serious crimes of concern to the international community using 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," which includes killing, physical and mental injury, creating conditions of life that bring about the destruction of a group of people, preventing births, transferring children to another group.
• Crimes Against Humanity: "Acts ... committed as part of a widespread or systematic attack directed against any civilian population," including murder, extermination, enslavement, deportation, imprisonment, torture, persecution of identifiable groups, apartheid, forced disappearances, inhumane acts, forms of sexual violence including rape, sexual slavery, forced pregnancy, forced sterilization, and more.
• War Crimes: "Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property," which includes murder, torture, biological experiments, serious injury, extensive destruction of property, pillaging, taking hostages, conscripting children, unlawful deportation, mistreating prisoners of war, directing attacks against peacekeepers, and dozens of other crimes.
• 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." This crime includes invasion, bombardment, blockades, 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 in specific geographic regions, for example:

• The International Criminal Tribunal for the former Yugoslavia, an ad hoc court located at The Hague, Netherlands, convicted the Bosnian Serb military commander Ratko Mladic, the 'Butcher of Bosnia', on ten counts of genocide, war crimes, and crimes against humanity.
• The International Criminal Tribunal for Rwanda convicted 85 individuals of genocide, crimes against humanity, and violations of Common Article 3, and 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, which 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. concern was that a failed federal or military prosecution would result in an ICC referral 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 and 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 and 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, China, 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 and 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 on 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 such as "willful killing, torture or inhuman treatment." This also includes biological experiments, willfully causing great suffering, or serious injury to body or health.

The War Crimes Act was amended through the Military Commissions Act of 2006 to limit 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

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, or against people who commit war crimes against U.S. military or U.S. nationals, whether the crimes occurred inside or outside the United States.

There is no statute of limitations under U.S. federal law for taking human life, meaning 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, including 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

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. 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 conviction. Learn more about your legal options by contacting an experienced criminal defense attorney in your area today.