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Iraqis grieve at the funeral of their relatives, who were killed during a U.S. air strike in Samarra, Iraq in October 2007. (Photo: Dia Hamid/AFP via Getty Images)

As Senators Try to Expand War Crimes Jurisdiction, Critics Ask if US War Criminals Count

"I've got names and addresses of American war criminals if any senators are interested," quipped veteran journalist Nick Turse.

Brett Wilkins

Critics of U.S. foreign policy on Tuesday reacted to a report that the United States Senate is advancing a draft bill that would grant domestic courts universal jurisdiction to prosecute alleged war criminals by questioning whether the measure would also apply to Americans—who are rarely if ever brought to justice after committing war crimes.

"Lo and behold, the U.S. has discovered universal jurisdiction."

According to The New York Times, leading senators from both parties have agreed to a draft bill to expand the 1996 War Crimes Act to allow the U.S. Department of Justice to prosecute suspected war criminals who enter the United States, no matter where their alleged offenses occurred. Currently, the law only applies to Americans who commit war crimes.

"Lo and behold, the U.S. has discovered universal jurisdiction," Seton Hall Law School professor Jonathan Hafetz sardonically tweeted.

The significant policy shift—U.S. leaders of both parties have long opposed universal jurisdiction, largely out of fears that the principle could be used to prosecute American officials responsible for unlawful invasions, torture, killing civilians, and other crimes—is motivated by alleged and documented war crimes committed by Russian forces invading Ukraine.

Senate Judiciary Chair Dick Durbin (D-Ill.) said in a statement that "perpetrators committing unspeakable war crimes, such as those unfolding before our very eyes in Ukraine, must be held to account. We have the power and responsibility to ensure that the United States will not be used as a safe haven by the perpetrators of these heinous crimes."

"The U.S. doesn't even try war crimes cases when they do involve Americans."

However, the U.S. has long provided refuge to favored war criminals—many of them trained or supported by the United States—although numerous violators have also been extradited to face justice in their home nations, or to third countries for universal jurisdiction prosecution.

Lee Carter, a former U.S. Marine and Democratic member of the Virginia House of Delegates, noted that "the U.S. doesn't even try war crimes cases when they do involve Americans."

"They went as far as to pre-authorize invading the Netherlands if the world court attempted to prosecute American war crimes," he added, a reference to the American Service Members' Protection Act, a 2002 law that not only bars the U.S. from assisting the International Criminal Court (ICC) but which also authorizes the president to use "all means necessary and appropriate" to secure the release of American or allied personnel held by or on behalf of the Hague tribunal.

U.S. limits on cooperation with the ICC have complicated the Biden administration's reported consideration of greater involvement in the court's effort to prosecute alleged Russian war criminals, as has the inconvenient fact that American personnel have enjoyed impunity or relative leniency after committing some of the same atrocities—from bombing shelters, homes, and hospitals to murdering, torturing, and raping civilians—that Russians are perpetrating in Ukraine.

International Commission of Jurists Commissioner Reed Brody last month noted the dilemma of the U.S. wanting to help the ICC "prosecute Russian war crimes while barring any possibility the ICC could probe U.S. (or Israeli) war crimes."

Sarah Leah Whitson, executive director of the advocacy group Democracy for the Arab World Now, pointed out that "Israeli settlements are war crimes under the Geneva Conventions," adding that "it would be great to prosecute them here in the U.S. alongside the ICC, where they're currently being investigated."

Some observers suggested a simple—albeit extremely unlikely—solution.

"We could also just ratify the Rome Statute, my fellow Americans," tweeted Jessica Dorsey, a professor at Rechtsgeleerdheid Universiteit Utrecht in the Netherlands and a board member of the U.K.- based civilian casualty monitor Airwars, in a reference to the 1998 treaty establishing the ICC.

Others noted that the only people who seem to ever pay for war crimes are the journalists and whistleblowers who expose them.

"The U.S. is already exerting international jurisdiction over the free press via Julian Assange's imprisonment," observed political analyst Fiorella Isabel in a reference to the WikiLeaks founder facing extradition from Britain to the United States more than a decade after he revealed U.S. and allied war crimes in Afghanistan and Iraq, as well as other crimes and misdeeds around the world.

Alluding to recently slain Palestinian-American reporter Shireen Abu Akleh, Isabel added that Israel "can murder journalists to no consequence."

"So this isn't really about 'trying war crimes,'" she concluded, "but covering them up and controlling the war narrative."


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