On December 22, 2022, the U.S. House of Representatives unanimously passed the “Justice for Victims of War Crimes Act”. The bipartisan bill had previously been unanimously passed by the U.S. Senate, and now finds itself waiting for approval on President Biden’s desk.

If approved, the bill would update the current – and comparatively skeletal – U.S. war crimes statute, specifically by enabling the prosecution of war criminals under the jurisdiction of U.S. courts, regardless of the location of the alleged crime or the victim’s nationality, as long as the alleged criminal is found in the U.S. By contrast, the current war crime legislation, passed in 1996, allowed for prosecution only if the alleged atrocity took place in the U.S. or if the victims were U.S. citizens.

Proponents of this legislation argue that it is needed to close the legal loophole that allowed war criminals to live and travel within the U.S. with impunity, irrespective of the gravity of their alleged crime. Indeed, several other countries in Europe have recently passed similar legislation due to the same concern. The bill would additionally bring the U.S. closer to the ideals of the 1949 Geneva Conventions, a move likely to improve the U.S. Government’s credibility abroad. 

The bill’s passage came on the heels of Ukrainian President Volodymyr Zelensky’s much-anticipated Congressional address, where, inter alia, he asked Congress to “bring to justice everyone who started this unprovoked and criminal war.” It seems manifest that a want to eventually prosecute alleged Russian war criminals – who, to date, have not targeted U.S. citizens or committed crimes within the U.S. – is behind the push for updating a statute that had laid dormant for the last 26 years. 

Though likely the impetus for the bill, any alleged Russian war crime that has already taken place will not fall under the purview of this added provision. Due to both domestic and international prohibitions on ex post facto laws, it is doubtful that the bill would have retroactive application. In other words, unless they commit any additional war crimes following President Biden’s (likely) pending approval, any perpetrators President Zelensky had in mind during his speech would still enjoy impunity for their alleged crimes in the U.S.

Proponents of a stronger bill note some additional shortcomings. In particular, for years those advocating for a stronger war crimes statute have argued for added provisions that would allow the prosecution of “crimes against humanity” in addition to war crimes – the difference being that crimes against humanity can be committed during times of peace, whereas war crimes, as the name implies, can only be committed during times of war. 

Potential prosecutors would also lack the discretion they normally have in determining who to charge. In order to avoid friction with governments that the U.S. wishes to appease – both potential allies and hostile countries that could return the favor, so to speak – the bill requires that a prosecutor receive a written certification from the Attorney General asserting that the prosecution would be “in the public interest and necessary to secure substantial justice.” 

Moreover, the bill does not allow for the possibility of “superior responsibility” liability (a doctrine essentially mirroring the domestic respondeat superior). Thus, under the statute, government officials will not be held accountable for alleged crimes orchestrated under their command, but carried out by others. For those currently intent on holding higher-ups within the Kremlin responsible for misdeeds in Ukraine, this will not go unnoticed. As with the need for the Attorney General’s clearance, however, this limitation is based on larger diplomatic concerns and a fear that the international tension such prosecution could cause would outweigh any potential deterrent effects.

Some hope that this legislation will be a precursor to a more robust emphasis on international criminal prosecution generally. The U.S. government has long refused to join the International Criminal Court (ICC) and has more generally kept the court at a distance. Hostility between the U.S. and the ICC infamously escalated during the Trump administration, with the former President going so far as to sanction the ICC’s top prosecutor. While the Biden administration lifted the sanctions, current legislation still severely restricts the U.S.’ ability to provide financial assistance to the ICC. While assuming that the U.S. will soon be willing to join the ICC and allow its own nationals to fall under its jurisdiction is unrealistic, it does appear possible that this bill signals a general trend towards increased cooperation with the Court.

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Miles Malley is a 3L at Georgetown University Law Center. He is an Executive Editor for the Georgetown Journal of International Law. After graduating in May, he will join the litigation and antitrust department of Fried, Frank, Harris, Shriver, & Jacobson in Washington D.C.