19 May 2022
by Aleksandr Podrabinek
A bill is being drafted in the US Senate which will give American courts the right to try war crimes committed abroad, even if none of the parties are US citizens. This legislative initiative has been prompted by the Russian army’s war crimes in Ukraine. The bill has good prospects, since of its two authors one is a Republican and the other a Democrat.
In principle, a similar law already exists in the U.S., but until now it has only applied to Americans in cases where they are either the perpetrators or the victims of a war crime. Now the nationality of the perpetrator or the victim will be of no consequence. If anyone suspected of committing a war crime appears on U.S. territory, they can be brought before an American court.
“CRIMES AGAINST HUMANITY.”
This is certainly a step forward in the international protection of human rights and the curbing of tyrannical regimes. Here it is appropriate to recall the principle of universal jurisdiction, according to which any national court may try certain crimes, regardless of who committed them and where.
Universal jurisdiction was born out of the understanding that certain crimes are a threat to all humankind. This became clear after World War II, which was initiated by one totalitarian regime and brought incalculable misery and suffering to practically the entire world. Just one country, one nation and one leader – but the consequences were global. Hence the responsibility.
It was then that the notion of “crime against humanity” was established in international law. These crimes made up one of the three charges brought against the Nazi leaders at Nuremberg. The tribunal’s verdict formulated these charges as follows: “[…] murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”
“A PRISON CELL CAN BE GOT READY FOR EVERY PERPETRATOR OF WAR CRIMES”
Even then the international court extended beyond the limits of national jurisdictions. So much the more so today. However, nowadays the Russian government is using the notion of national sovereignty to fence itself off from international justice, realizing the responsibility it will have to bear for the crimes of the Russian army in Ukraine. It is already halfway to leaving the International Criminal Court and has run away from the European Court of Human Rights. And very likely it will bid goodbye to any institution of international justice that may make it may feel uncomfortable.
Unfortunately, it is impossible to force a dictatorship to behave decently in its relations with other countries. But a prison cell can be got ready for every perpetrator of war crimes in countries that regard these crimes as a threat to the whole world and are ready to try these international crimes on the basis of their national justice systems.
To some extent this is, of course, a dangerous path. A country can get carried away, interpreting international norms in its own national way. But today this step is necessary, because international justice, for various reasons, is not always in a position to bring war criminals to justice. At least now war criminals responsible for the torture of prisoners of war, the senseless destruction of cities and the killing of civilians in occupied territories will know that it is dangerous for them to appear in countries from which they can be extradited to face American justice.
Translated by Simon Cosgrove