BETH VAN SCHAACK
Leah Kaplan Visiting Professor in Human Rights at Stanford Law School
Lieber Senior Fellow
The United States prides itself on its respect for international humanitarian law, or the law of armed conflict. And yet, in at least one critical aspect, this country is out of compliance with the 1949 Geneva Conventions. This relates to the Conventions’ enforcement regime. Those treaties require State parties to “search for persons alleged to have committed, or to have ordered to be committed,” grave breaches of the treaty “regardless of their nationality” (Art 129, GC III). And yet, contrary to the preferences of the State Department and the Department of Defense, Congress gave the 1996 War Crimes Act a more limited reach: the United States can only prosecute war crimes when they are committed by, or against, U.S. nationals. This statute has yet to be invoked, even though regrettably U.S. citizens have been the alleged victims, and perpetrators, of war crimes in foreign wars (see, for example, here, here, here, and here).
This shortfall should be rectified by Congress with support from the Executive branch. Such reforms would bring the War Crimes Act into line with the United States’ other international crimes statutes addressed to torture, the use of child soldiers, genocide, trafficking, terrorism, and piracy. All of these statutes allow the United States to prosecute alleged offenders when they are found or present in the United States, regardless of the nationality of the accused or victim, or the place of commission.
While they are at it, Congress should also extend the provision on superior responsibility within the 2006 Military Commission Act (§ 950q(3)) to these other international crimes so that commanders who know, or should know, that their subordinates are committing war crimes can be prosecuted for failing to prevent these crimes or be punished after the fact (see here, here and here).
Although this jurisdictional shortcoming is notable, the drafters of the War Crimes Act are to be commended for enabling the United States to prosecute war crimes committed in non-international armed conflicts, going beyond what is mandated by the Conventions and their Protocols. That said, in 2009, Congress decriminalized several elements of Common Article 3 following the revelation of custodial abuses in Afghanistan and Iraq. Congress would do well to reinstate outrages upon personal dignity and the passing of sentences without judicial guarantees as prosecutable war crimes under U.S. law. The United States should model a robust war crimes regime at home given that we would expect such crimes against U.S. servicemembers and civilians to be vigorously prosecuted abroad.

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