Legal Sidebari

International Atrocity Crimes and Their
Domestic Counterparts
May 25, 2022
Russia’s 2022 invasion of Ukraine has prompted widespread attention to the legal framework governing
wartime atrocities. In a 2006 article, former U.S. Ambassador at Large for War Crimes Issues David J.
Scheffer coined the term atrocity crimes to describe criminal conduct that is, among other elements, of a
significant magnitude, prohibited under international criminal law, and led in its execution by a ruling
government group or power elite in society. In 2014, the United Nations defined atrocity crimes as
genocide, crimes against humanity, and war crimes. International law also criminalizes related conduct
that can take place in wartime, such as torture and the crime of aggression. Some, but not all, of these
offenses have counterparts in the United States’ criminal code. The Human Rights and Special
Prosecution Section in the Department of Justice (DOJ) is responsible for investigating and prosecuting
atrocity crimes and related offenses under U.S. law, but prosecutions can be limited by the lack of
extraterritorial jurisdiction, statutes of limitation, and other facets of the offenses. This Sidebar introduces
international atrocity crimes and related offenses, examines their domestic counterparts, and discusses
proposals for congressional reform.
Offenses with Domestic Counterparts
Genocide
Described as the “crime of crimes,” genocide is prohibited under the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide. The United States ratified the convention in 1988 and passed
legislation implementing the treaty into U.S. law the same year. Codified in 18 U.S.C. § 1091, the
domestic genocide offense contains two essential elements. First, the offender must have genocidal
intent—the “specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or
religious group.” Second, the offender must commit one of the following offenses: (1) killing members of
the targeted group; (2) causing serious bodily injury to the group’s members: (3) using drugs, torture, or
similar techniques to permanently impair group members’ mental faculties; (4) subjecting the group to
conditions of life intended to cause the group’s physical destruction; (5) imposing measures intended to
prevent births within the group; or (6) transferring children out of the group by force.
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The domestic genocide offense provides one of the broadest forms of extraterritorial jurisdiction in U.S.
law. U.S. federal courts have jurisdiction if the offense was committed in whole or in part in the United
States. Federal courts also have jurisdiction, regardless of where the offense was committed, if the
offender is a U.S. national, a lawful permanent resident, a stateless person with a habitual residence in the
United States, or present in the United States. Despite this broad exterritorial application, the genocide
statute does not provide “pure” universal jurisdiction in which U.S. courts can try any perpetrator of
genocide. The statute requires at least some connection between the United States and the offender,
victim, or offense. At a minimum, the offender must be “present in the United States” (i.e., located on
U.S. territory) for U.S. courts to exercise jurisdiction. While the executive branch has concluded that
certain events overseas constituted genocide, it has not prosecuted anyone under the genocide statute.
War Crimes
“Grave breaches” of the four Geneva Conventions of 1949 and violations of other treaties governing the
conduct of armed conflicts constitute war crimes under international law. The War Crimes Act of 1986,
codified as amended in 18 U.S.C. § 2441, criminalizes this offense in U.S. law. The background, scope,
and definition of war crimes are discussed in detail in this CRS Legal Sidebar. The War Crimes Act
provides jurisdiction for offenses “whether inside or outside the United States” if the victim or perpetrator
is a U.S. national or member of the U.S. Armed Forces. The United States has not prosecuted anyone for a
war crimes offense.
Torture
The United States ratified the Convention Against Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment or Punishment in 1994 and passed implementing legislation the same year. The
implementing legislation (18 U.S.C. § 2340-2340B) defines torture as “an act committed by a person
acting under the color of law specifically intended to inflict severe physical or mental pain or suffering
(other than pain or suffering incidental to lawful sanctions) upon another person within his custody or
physical control.” The law only criminalizes torture committed outside the United States, and U.S. courts
have jurisdiction if the offender is a U.S. national or is “present in the United States.”
In 2008, Roy Belfast Jr., also known as Charles “Chuckie” Taylor, received the only conviction to date
under the torture statute. Belfast, the son of former Liberian President Charles Taylor, was convicted for
his role in the torture of people in Liberia between 1999 and 2003. Belfast, who was born in the United
States, was sentenced to 97 years in prison.
DOJ has brought torture charges in at least three other cases. In 2012, a grand jury indicted then–New
York resident Sulejman Mujagic for alleged torture in Bosnia during the armed conflict after the breakup
of the former Yugoslavia. The United States later extradited Mujagic to Bosnia so that he could be tried
for a broader set of crimes than were available under U.S. law in a forum that was closer to the victim,
witnesses, and location of the offenses. Two other prosecutions with torture indictments are still pending.
In 2020, a grand jury indicted a Gambian national residing in Colorado for alleged torture as part of an
effort to secure confessions from individuals suspected of plotting a coup to overthrow the Gambian
government. A February 2022 indictment alleges that a U.S. citizen managing construction of a weapons
factory in Iraq directed Kurdish soldiers to torture an individual who raised concerns about the project.

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Offenses with No Domestic Counterpart
Crimes Against Humanity
U.S. law does not contain a criminal prohibition on crimes against humanity—a category of crimes that is
often traced to charters of the post–World War II military tribunals at Nuremberg and Tokyo. Since World
War II, the offense has been included in several international criminal tribunals, and it was most recently
defined in the Rome Statute for the International Criminal Court (ICC). (As discussed in this Sidebar, the
United States is not a party to the Rome Statute.) Article 7 of the Rome Statute defines crimes against
humanity as certain acts—such as murder, enslavement, rape, torture, and forcible population transfers—
when those acts are “part of a widespread or systematic attack directed against any civilian population”
and the perpetrator has knowledge of the attack. Although it is not a defined offense in U.S. criminal law,
some U.S. laws reference crimes against humanity in other contexts, and the executive branch has
determined that certain overseas atrocities rise to the level of crimes against humanity.
Crimes against humanity and genocide share many common elements, but the distinguishing feature lies
in the offenses’ state-of-mind requirements. For crimes against humanity, the perpetrator must, at a
minimum, know that the prohibited act was part of a widespread and systematic attack on a civilian
population. The genocide offense requires the intent to destroy a national, ethnic, racial, or religious
group. The differing standards mean that many acts of genocide also qualify as crimes against humanity,
but not every crime against humanity amounts to genocide.
Aggression
The crime of aggression, in its broadest sense, is the act of starting an armed conflict that is prohibited
under international law. Aggression is not a defined offense in U.S. law, but it is prohibited in some
foreign countries’ criminal codes, including in Ukraine. The crime was defined and prosecuted in the
post–World War II military tribunals, where it was referred to as “crimes against peace.” The modern
definition is reflected in Article 8 bis of the Rome Statute, which defines the crime as the:
planning, preparation, initiation or execution, by a person in a position effectively to exercise control
over or to direct the political or military action of a State, of an act of aggression which, by its
character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
One component of the crime is an “act of aggression,” which the Rome Statute defines as a country’s use
of armed forces against the sovereignty, territorial integrity, or political independence of another country.
Examples of acts of aggression include invasions, armed attacks, bombardments, blockades, and military
occupations.
Immigration and Sanctions Authorities
When it is not feasible to prosecute an individual suspected of an atrocity for a more severe criminal
offense, federal officials regularly rely on immigration authorities to impose adverse consequences.
Presidential Proclamation 8697, issued in 2011 and still in effect, suspends entry into the United States of
aliens who participated in certain atrocity crimes. Additionally, federal officials often use immigration
laws to remove or denaturalize aliens accused of atrocity crimes by prosecuting them for making false
statements or for committing fraud either during the immigration process or on immigration forms. For
example, the United States prosecuted Mohammed Jabbateh, also known as “Jungle Jabbah,” for fraud
related to immigration documents (i.e., an asylum application and an application for lawful permanent
residency) and perjury charges for failing to disclose his role in a host of violent offenses against the
civilian population in Liberia during the 1990s during interviews with immigration officials. The United
States may also utilize sanction-based authorities, such as the Global Magnitsky Human Rights

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Accountability Act, to impose financial and travel restrictions (i.e., deny entry into the United States)
against an individual suspected of committing an atrocity.
Considerations for Congress
Reported evidence of Russian troops’ atrocity crimes in Ukraine has prompted congressional interest in
avenues for accountability. Ukraine is pursuing war crimes charges in its domestic court system and has
secured the conviction of one former Russian tank commander. The former commander received a life
sentence for killing an unarmed civilian in violation of Article 438 of Ukraine’s criminal code, which
criminalizes “violations of rules of the warfare.” Prosecutors from Ukraine, Poland, Lithuania, and the
ICC have formed a joint investigative team to examine other potential offenses, and the United States is
assisting Ukraine in its work with this team. The Ukraine Invasion War Crimes Deterrence and
Accountability Act (H.R. 7276), which was passed in the House on April 6, 2022, would require the
executive branch to report on U.S. evidence-collection efforts. On March 15, 2022, the Senate passed a
resolution (S. Res. 546) expressing support for the ICC and “any investigation” into atrocity crimes
committed by Russian forces. Provisions in the American Service Members Protection Act limit federal
agencies’ ability to assist the ICC. There are exceptions, however, for cases involving “foreign nationals
accused of genocide, war crimes or crimes against humanity,” and when the President exercises waiver
authorities or chooses to assist the ICC on a “specific matter.”
Although the bulk of future prosecutions will likely take place outside the U.S. judicial system, some
observers contend that, over time, some members of the Russian military could make their way into the
United States or to a country with an extradition agreement with the United States. In those cases,
criminal charges in U.S. courts may be an option, but limitations in the suite of atrocity-related federal
offenses could constrain extradition and prosecution options.
For example, for U.S. courts to have jurisdiction under the War Crimes Act, the victim or perpetrator of
the offense must be a U.S. national or member of the U.S. Armed Forces. By contrast, the genocide and
torture statutes provide jurisdiction when the offender is “present” in the United States, regardless of
nationality. The absence of “present-in” jurisdiction in the War Crimes Act has led some commentators to
contend that, if a Russian national accused of committing war crimes against Ukrainian citizens were to
be apprehended in the United States, U.S. courts would not have jurisdiction for war crimes charges.
During the legislative debate over the War Crimes Act, the Clinton Administration recommended broader
jurisdiction, but the Committee on the Judiciary concluded in a report on the War Crimes Act that it would
be “unwise” to extend jurisdiction because it could “draw the United States into conflicts . . . where our
national interests are slight.”
The torture statute also has unique limitations. Its jurisdictional provisions are keyed to the offender’s
nationality or presence, but the statute does not provide jurisdiction based on the victim’s status as a U.S.
national. The absence of victim-based jurisdiction means that the torture statute would not automatically
provide jurisdiction if a U.S. national were captured in Ukraine and tortured by Russian forces.
Federal prosecutors also do not have the option to bring charges for crimes against humanity or the crime
of aggression. Some observers and Members of Congress view the absence of a crimes against humanity
offense in U.S. law as a “gap” that Congress should fill by defining a new offense that captures the unique
nature of this crime. Others contend that a crimes against humanity statute risks being overbroad and
exposing U.S. military personnel to prosecution. Aggression is less frequently discussed in the context of
domestic law, but it has received attention from international legal commentators because restrictions in
the Rome Statute prevent the ICC from exercising jurisdiction over Russian nationals for this crime.
When prosecution is not an option under the set of federal atrocity-related crimes, DOJ can still use more
common criminal charges (e.g., murder and other violent crimes) to address individual acts that formed
part of a widespread atrocity campaign. Some observers have questioned whether atrocity crime reform is

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necessary when the United States can leverage existing criminal and immigration laws to target offenders.
Being charged with traditional criminal and immigration offenses, however, may lack the defining
features and stigma of being prosecuted for atrocity crimes, and they may have shorter statutes of
limitation or their own restrictions on exterritorial reach. At the same time, it is not clear that adding new
offenses or expanding jurisdiction for atrocity crimes would result in many new convictions, as the United
States has only one conviction under its suite of atrocity-related crimes—the 2008 torture conviction of
“Chuckie” Taylor.

Author Information

Stephen P. Mulligan

Legislative Attorney




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