By Ilan Fuchs, Ph.D.
Faculty Member, Legal Studies
Recent reports of war crimes in Ukraine, including the brutal acts committed in Bucha and Mariupol, have caused global debate about the role of international tribunals. These tribunals typically deal with war crimes and crimes against humanity.
After the end of the Second World War, for instance, special tribunals – such as the International Military Tribunal that met for the Nuremburg trials in Germany – have been established several times. Whether crimes have been committed in the former Yugoslavia, Rwanda or Sierra Leone, the United Nations has attempted to react to major human rights violations.
But in the case of Russian activities in Ukraine, the situation is different. Russia’s veto power in the United Nations Security Council ensures that there will likely be no action taken by the United Nations against Russia for war crimes in Ukraine. There might be a resolution in the General Assembly, but that resolution will be void of any practical meaning.
Related link: Why the Ukraine ‘Denazification’ Rhetoric Isn’t Working
Russia and International Jurisdiction
So what can happen to Russia in regard to Ukraine? Here is where international jurisdiction gets involved.
One of the general principles of international jurisprudence is that a nation can only prosecute crimes committed in its own territory. International jurisdiction is the concept that some crimes go against the fabric of global society and can be adjudicated everywhere.
International jurisdiction is very controversial and hotly debated. Also, this concept has never been accepted in the U.S. since it opens the door for judicial intervention in foreign countries going directly against the principle of sovereign immunity and enmeshing U.S. courts in foreign policy.
But in the past 20 years, Congress has enacted some laws to permit certain crimes to be prosecuted, including:
- Genocide (18 USC, Section 1091)
- Torture (18 USC, Section 2340A)
- War Crimes (18 USC, Section 2441)
- Recruitment/Use of Child Soldiers (18 USC, Section 2442)
- Female Genital Mutilation (18 USC, Section 116)
These crimes can be investigated by U.S. authorities – mainly the Federal Bureau of Investigation (FBI) – and prosecuted by the U.S. Attorney General if:
- The perpetrator is a U.S. person.
- The victim is a U.S. person.
- The perpetrator, regardless of nationality, is located in the U.S.
This legislation has not been utilized extensively. But if a perpetrator or victim met the correct requirements, a U.S. federal court would have jurisdiction. However, there is other legislation that permits the U.S. prosecution of war crimes.
The US Torture Victim Protection Act and the Taylor Case
The first case that involved prosecution related to war crimes based on a 1994 Congressional law, known as the U.S. Torture Victim Protection Act, was the son of Liberia’s former president: Charles “Chuckie” Taylor, Jr., also known as Charles McArthur Emmanuel. Taylor was found guilty on one count of torture, one count of conspiracy to commit torture and one count of possession of a firearm during the commission of a violent crime.
His 2008 case was the first time that the legislation against torture was used in a case involving crimes that had been committed abroad. Taylor, a U.S. national, was initially arrested when he used a fake passport to enter the U.S. via a Miami airport.
Taylor was prosecuted and convicted for his involvement with the demonic forces responsible for numerous war crimes during the civil war in Liberia.
But the U.S. Torture Victim Protection Act is not the only legislation that permits U.S. prosecution for crimes committed in foreign countries. There is also the Alien Tort Claims Act.
The Alien Tort Claims Act of 1948
In the international law class I teach for the University, we discuss the Alien Tort Claims Act (ATCA), also known as the Alien Tort Statute. This legislation originates in the Judiciary Act of 1789 and says: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” A tort involves a wrongful act or the infringement of a right (other than the rights stated in a legal contract) that results in civil legal liability.
The ATS was utilized for the first time in the 1980 case of Filártiga v. Peña-Irala, which involved torture in Paraguay by the junta. In Sosa v. Alvarez-Machain, the U.S. Supreme Court made clear in 2003 that the ATS only applies in cases of major violations of international law.
In recent years, the ATS has been invoked dozens of times in multiple cases. This legislation has been used in an attempt to increase corporate liability and to force international corporations to be more cognizant of their role in foreign countries and possible human rights violations.
The Next Steps for the US Government
Will the federal government use its legislative tools to take action against Russia for its activities in Ukraine? That depends upon the FBI, the Department of State and U.S. Attorney General Merrick Garland.
Such prosecutions take considerable time and necessitate the presence of a perpetrator on U.S. soil. But prosecuting people in war crimes inspired by Russia is not a simple matter, especially since Russia is known to retaliate against its enemies.
Russia will most likely detain U.S. nationals as it has done several times before, most recently with U.S. basketball player Brittney Griner. The ATS might be more promising since it allows civilians to bring suit against Russian criminals for damages.
Also, the structure of the U.S. banking system means that there are plenty of opportunities to capture funds from Russians who are involved in war-related crimes. That group includes people acting on the orders of the Russian government or oligarchs who are an extension of Putin’s regime.
What is happening in Ukraine cannot be compared to Rwanda or Yugoslavia. The political power that the Kremlin wields makes Ukraine a test case to the efficacy of the human rights regime in the international arena. International developments will soon teach us how much has changed since the end of the Second World War.