A Historic War Crimes Prosecution—With More to Come

Criminal indictments rarely receive the red carpet treatment. Yet that is what happened earlier today, when an all-star panel of senior U.S. government officials—featuring two cabinet secretaries, the FBI director, the head of Immigration and Customs Enforcement, and myriad other senior career law enforcement officials, with several foreign dignitaries in attendance—came together to announce a law enforcement action nearly 30 years in the making.

The focus of their remarks was a single nine-page indictment that tightly lays out a quartet of criminal charges against four previously unknown defendants. What is remarkable about the indictment is the criminal conduct it addresses: war crimes committed by participants in Russia’s brutal invasion of Ukraine, which has been marked by countless credible allegations of atrocities. The indictment was the first brought by the War Crimes Accountability Team that Attorney General Merrick Garland inaugurated last year, which was established with the purpose of using law enforcement tools to hold Russia accountable for its conduct. Perhaps more importantly, it is also the first indictment brought by the U.S. Department of Justice under the federal war crimes statute in its nearly 30 years of existence—as well as the first brought less than a year after Congress enacted reforms aimed at holding war criminals criminally accountable, both Russian and otherwise. 

Today’s indictment will no doubt be welcomed as a major step toward greater international accountability for war criminals, and the role the United States plays in pursuing it—and rightfully so. As Acting Assistant Attorney General Nicole Argentieri noted in her remarks, “These charges send a clear message: the [Justice Department] will pursue those who commit war crimes and other atrocities in Ukraine.” Yet the nature of the indictment and, perhaps more importantly, the context in which it arises is more complicated than it may seem at first blush. So in turn are the implications it is likely to have for international accountability for war crimes moving forward, both in Ukraine and beyond.

Today’s Historic Indictment

The indictment centers on actions that the four defendants—Suren Seiranovich Mkrtchyan, Dmitry Budnik, and two other individuals identified as Valerii and Nazar whose last names are unknown—took in and around the village of Mylove in southern Ukraine in April 2022, as part of the invasion of Ukraine that Russia had initiated two months earlier. All four are identified as members of either the Russian military or military units from the so-called Donetsk People’s Republic (DPR), one of the breakaway regions of Ukraine where local armed groups joined with and participated in Russia’s offensive. The indictment identifies Mkrtchyan and Budnik as officers, and Valerii and Nazar as lower-ranking military personnel. 

On or about April 2, 2022, Mkrtchyan, Valerii, and Nazar are alleged to have abducted a U.S. citizen, identified only as V-1, from his home in Mylove, where he had resided since 2021. For about the next 10 days, they—along with Budnik—forcibly detained V-1, beat and tortured him in the course of interrogations, degraded him by stripping him naked and photographing him, threatened him with execution and sexual assault, subjected him to a mock execution, and made him engage in forced labor. This occurred even though V-1 did not fight or otherwise participate in the ongoing armed conflict between Russia and Ukraine.

According to the indictment, these actions were in violation of Article 147 of the Geneva Convention Relative to the Protection of Persons in Time of War (also known as the Fourth Geneva Convention), which states:

Grave breaches … shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

By virtue of the fact that V-1 was a civilian who was not participating in the armed conflict, the indictment maintains that he was a protected person for purposes of this provision.

The indictment, in turn, translates these violations into four criminal charges under the War Crimes Act of 1996, which, as currently codified at 18 U.S.C. § 2441, provides legal grounds for prosecuting grave breaches of the Geneva Conventions and certain other war crimes. Three of the charges are for separate violations of § 2441 for conduct the indictment identifies as the unlawful confinement of a protected person, torture, and inhuman treatment. The fourth charge is for criminal conspiracy under 18 U.S.C. § 371 to commit war crimes, on the logic that the four defendants—along with other unnamed co-conspirators—deliberately planned and took overt steps toward doing so for the purpose of abusing, detaining, and obtaining information from V-1 and generally preventing resistance from him and other members of the local civilian population. 

The inclusion of a conspiracy charge is likely to stand out to those who follow international criminal law matters. The notion of conspiracy as a war crime under international humanitarian law is a contested one, and efforts to install it as within the scope of international criminal tribunals have been rejected in contexts ranging from Nuremberg to the International Criminal Court (ICC). For its part, many members of Congress have long favored the ability to bring federal conspiracy charges in relation to war crimes and operated on the assumption that this was possible, at least as a matter of federal criminal law. Congress even expressly included conspiracy within the definition of certain grave breaches it provides in certain portions of the War Crimes Act, though those definitions are not directly applicable here. Nonetheless, the indictment brings the charge under the U.S. conspiracy statute, 18 U.S.C. § 371, rather than under the War Crimes Act. This is likely because the latter defines war crimes with respect to specific war crimes under international law, which do not indisputably include a crime of conspiracy. In short, this is one area where federal criminal law may go even further than international criminal law.

Regardless, where exactly the case goes from here is unclear. None of the defendants is currently within the reach of federal law enforcement. Nor does Russia seem likely to extradite them anytime soon. Moreover, even if they were to find their way into the hands of federal prosecutors, the case will face challenges beyond the fact that it’s the first one brought under the War Crimes Act. Many of the allegations in the indictment seem likely to be grounded in V-1’s firsthand account, as evidenced by the fact that two of the defendants can be identified only by their first names. The Justice Department no doubt took steps to corroborate V-1’s allegations to the point that it was comfortable bringing charges, with help from the intelligence community and foreign counterparts in Ukraine. But gathering evidence and witnesses from an active war zone that will meet the demanding standard of admissibility in a federal criminal trial is a difficult task that will grow only more difficult with the passage of time. The same factors could in turn allow the defendants to argue that they are unable to mount an effective defense, raising due process concerns.

For these reasons, today’s indictment is perhaps best seen as a “speaking indictment,” meaning one intended primarily to use the platform and moral force of the Justice Department to share information regarding Russia’s unlawful conduct and to name and shame those involved. That said, it’s not entirely without bite. One day the defendants may want to travel outside of Russia, to a country with which the United States has an extradition relationship. Or perhaps in the future Russia will hope to normalize relations with the United States. The fact that the defendants cannot face either future without fear of being sent to face criminal charges in the United States may not mean much now but will likely hang over their heads for the rest of their lives. 

The Relevance of Recent Reforms

Today’s indictment is particularly notable as it is the first that the Justice Department has pursued since Congress dramatically expanded the Justice Department’s ability to pursue war crimes charges, largely in response to the conflict in Ukraine. Some may be surprised, however, that these particular charges don’t actually rely on the recent changes Congress has installed. But they do reflect a broader shift in how the United States is approaching war crimes accountability.

Late last year, as one of its final legislative acts, the 117th Congress enacted the Justice for Victims of War Crimes Act, which introduced major jurisdictional changes to the War Crimes Act of 1996. An earlier Congress had enacted that law to facilitate the criminal prosecution of certain grave breaches of the Geneva Conventions, the multilateral treaties that define many of the international legal rules applicable in circumstances of armed conflict. In subsequent years, Congress further amended the War Crimes Act to cover certain other types of war crimes as well—and to finesse some of the definitions of those crimes so as to limit their application to interrogation techniques and certain other actions taken by U.S. personnel after the Sept. 11 terrorist attacks.

Until the recent amendments, however, the War Crimes Act only extended to war crimes where the perpetrators or victims were U.S. nationals or members of the U.S. armed forces. This presented a problem in terms of the United States’ international legal obligations. The Geneva Conventions obligate parties like the United States to investigate allegations of war crimes and either prosecute or extradite any perpetrators within their jurisdiction. Customary international law is generally understood to impose similar obligations with regard to other war crimes. Prosecuting war crimes by and against U.S. nationals satisfies part of this obligation, but not all of it. Even as he signed the original War Crimes Act into law, President Clinton acknowledged these shortcomings and urged Congress to do more. But as many conservative members of Congress were deeply skeptical of international law and institutions—and of international criminal justice—this was all that could get through the legislative process.

This skepticism of international criminal justice also appears to have influenced the Justice Department’s use of the War Crimes Act, which sat on the books for nearly 30 years without being used once. In part, this reflected the fact that many individuals who might have been charged under the War Crimes Act could be (and in many cases were) charged with other, better-established violations of federal criminal law or, for U.S. service members, the Uniform Code of Military Justice. Yet there also seems to have been a reluctance to bring charges in the rare but not unprecedented circumstances in which U.S. nationals found themselves victims of war crimes.

Russia’s 2022 invasion of Ukraine, however, and the reports of brutality that soon followed, ultimately broke this logjam. Within weeks, conservative legislators like Sen. Lindsey Graham were condemning Russia’s actions and pushing for accountability measures, both through international fora like the ICC and through bilateral measures. What became the Justice for Victims of War Crimes Act was ultimately sponsored by a bipartisan coalition that included several leading conservative legislators; and, following some limited amendments, it was ultimately passed practically unanimously by both the House and Senate. A more complete reversal of congressional attitudes is hard to imagine.

As enacted, the Justice for Victims of War Crimes Act dramatically expands the scope of who can be prosecuted under the War Crimes Act. Previously, the Justice Department could prosecute war crimes wherever they occur, so long as either the perpetrator or the victim of the war crime was a U.S. national, a U.S. lawful permanent resident, or a member of the U.S. armed forces. But the act amended the law to make it so that any perpetrators of war crimes found to be present in the United States could also be prosecuted, regardless of the nationality of the perpetrator or victim.

By tying the prosecution of war crimes to either nationality or presence in U.S. territory—two factors accepted widely as grounds for exercising jurisdiction under international law—the act still stops short of authorizing the full scope of universal jurisdiction that some observers argue should be exercised in relation to war crimes. But it readily covers those cases where the Justice Department and agencies of the U.S. government are likely to be in a strong position to investigate and bring charges. The main limitation on this expanded jurisdiction—which was no doubt included to assuage lingering skepticism among some members of Congress—is that any such prosecution must be certified as “in the public interest and necessary to secure substantial justice” by senior Justice Department officials before it can move forward. Yet this is a relatively low bar to pass on the way to more aggressive prosecution of international war crimes, if that is what the Justice Department chooses to pursue moving forward.

That said, it’s not clear what, if anything, the new law will mean for those seeking justice for war crimes that have long since taken place, whether in Ukraine or elsewhere. On its face, the act seems like it might promise an avenue toward redress for these individuals, as it abolishes the prior five-year statute of limitations for prosecuting grave breaches of the Geneva Conventions in addition to expanding the jurisdiction the Justice Department can exercise over war criminals located within the United States. But looks can be deceiving. The Supreme Court has previously held that legislative efforts at reviving time-barred prosecutions by extending statutes of limitations that have already expired violate the Constitution’s Ex Post Facto Clause, meaning that anyone who committed war crimes more than five years before the act entered into force likely still cannot be prosecuted. Similar constitutional concerns may also make it impossible to prosecute war criminals located in the United States who were not subject to prosecution before the act’s passage, severely limiting its retroactive effect.

In coming months, the Justice Department will have to decide whether to bring such cases and test these constitutional limits in the name of international accountability. But in the meantime, understanding these constitutional constraints helps to explain why the first case of war crimes brought after such remarkable reforms is one that could have been brought without them: because that’s the type of case most likely to withstand constitutional muster. In this sense, today’s indictment isn’t a result of the recent reforms that Congress has put into law, but a product of the same shift in attitude—brought about by Russia’s brutal assault on Ukraine—that made those reforms possible. 

What Comes Next

While today’s indictment is the first that the Justice Department has pursued under the War Crimes Act, Attorney General Garland left no illusions that it would be the last. At the press conference announcing the indictment, he said that the prosecution was “an important step toward accountability for the Russian regime’s illegal war in Ukraine” and that the department’s work “is far from done.” Nor will additional charges necessarily be limited to the context of Ukraine: When asked by a member of the press whether the Justice Department would explore similar charges against members of Hamas who committed brutalities against Americans in Israel as part of the Oct. 7 massacre, Garland acknowledged that the department had opened a formal investigation of the “murder of more than 30 Americans” by Hamas.

And there may be more to come on the legislative front as well. In lobbying for what would become the Justice for Victims of War Crimes Act, relevant Justice Department officials also pushed for two other legislative changes: an amendment to the federal torture statute that would allow charges to be brought on the grounds that the victim is a U.S. national; and a new federal law imposing similar criminal penalties for another category of internationally wrongful acts, namely crimes against humanity. The latter is in turn the domestic counterpart of a broader international effort to craft an international treaty outlawing crimes against humanity, which doesn’t currently exist outside the context of the ICC. And these are just some of the items on the reform agendas that advocates and policy experts in this space have put forward as a means of strengthening international accountability, and the United States’ role in securing it.

Of course, it’s not clear that the shift in mindset that made both the Justice for Victims of War Crimes Act and today’s indictment possible is a permanent one. The fact that the act itself contains a firm disclaimer that nothing in it supports U.S. ratification of or accession to the ICC’s Rome Statute or consents to the jurisdiction of any international tribunal underscores the reality that skepticism of international law and institutions remains a real force in U.S. politics. Moreover, the controversy surrounding Israel’s ongoing military offensive in Gaza is a difficult reminder that allegations of war crimes can be leveled against friends and foes. And while the combination of the act’s certification requirement and prosecutorial discretion more broadly make it unlikely that the executive branch will ever be forced to bring war crimes charges where it does not want to, the fact that it is now a legal possibility will only make the political pressure to do so that much more salient—and perhaps give the State Department, among others, heartburn that the act requires certification only by senior Justice Department officials, and not those representing the broader range of U.S. global interests that such prosecutions may well implicate. 

Last year, after a meeting with Ukrainian President Volodymyr Zelenskyy, Garland said that the Justice for Victims of War Crimes Act would ensure that the department “stand[s] with the people of Ukraine and will pursue every avenue of accountability to bring to justice those responsible, wherever they are located.” Today’s indictment—and the efforts that preceded it—are undoubtedly welcome steps in that direction. Just how big, however, remains to be seen.