Tom Nachbar writes:

Since April 4, when President Biden accused Russian President Vladimir Putin of being a war criminal, many commentators have focused on how Russian leaders might be subject to international war crimes trials. But there is another option that should be on the table: a U.S. prosecution.

It is a remarkable thing for the president of the United States to personally accuse a foreign leader of being a war criminal. Such an allegation should not be made unless it can be backed up, not just by facts but also by action. It’s one thing when a human rights organization alleges war crimes; it is another when the accuser heads an executive branch capable of actually prosecuting war crimes, as Biden does.

Under the War Crimes Act, 18 U.S.C. § 2441, the commission of a war crime is punishable by fine, by imprisonment or, if it results in death, by the death penalty. The statute adopts the definitions of war crimes from a combination of the Geneva Conventions of 1949, the Hague Convention of 1907, and Protocol II to the Convention on Certain Conventional Weapons, which relates to landmines and booby traps. Any number of the listed acts would be satisfied by the intentional killing of civilians alleged to have taken place in Bucha and elsewhere in Ukraine. (On April 12, Biden upped the ante by alleging that Russia is engaged in genocide in Ukraine. Genocide is also punishable under federal law, but proving genocide is likely to be far more difficult than proving individual war crimes, and the number of officials who could be charged with genocide is likely far more limited.)

The major limit on the reach of the U.S. war crimes statute is that the crime must affect either a U.S. service member or a “national of the United States,” which is to say either an American citizen or someone who “owes permanent allegiance to the United States.” Geoff Corn has argued recently in Lawfare that the War Crimes Act should be amended to remove this limitation, but as the scope of war crimes allegations grows in Ukraine, so does the likelihood that the War Crimes Act’s limitation will be satisfied. [Continue reading…]