Since April 4, when President Biden accused Russian President Vladimir Putin of being a war criminal, many commentators have focused on how Russian leaders might be subject to international war crimes trials. But there is another option that should be on the table: a U.S. prosecution.
It is a remarkable thing for the president of the United States to personally accuse a foreign leader of being a war criminal. Such an allegation should not be made unless it can be backed up, not just by facts but also by action. It’s one thing when a human rights organization alleges war crimes; it is another when the accuser heads an executive branch capable of actually prosecuting war crimes, as Biden does.
Under the War Crimes Act, 18 U.S.C. § 2441, the commission of a war crime is punishable by fine, by imprisonment or, if it results in death, by the death penalty. The statute adopts the definitions of war crimes from a combination of the Geneva Conventions of 1949, the Hague Convention of 1907, and Protocol II to the Convention on Certain Conventional Weapons, which relates to landmines and booby traps. Any number of the listed acts would be satisfied by the intentional killing of civilians alleged to have taken place in Bucha and elsewhere in Ukraine.