The Justice for Victims of War Crimes Act: A Dangerous Expansion of Universal Jurisdiction to Non-International Armed Conflicts

Universal jurisdiction over war crimes committed in noninternational armed conflict (“NIACs”) has yet to develop a firm legal foundation under international law. The Justice for the Victims of War Crimes Act of 2023, however, amended the War Crimes Statute (18 U.S.C. § 2441) and extended universal jurisdiction to NIACs. This overreach risks infringing on the sovereignty of NIAC-affected states and destabilizing their ongoing peace processes. Many such states prioritize reconciliation through mechanisms like truth commissions over retributive justice through criminal trials. The prosecution of their nationals under U.S. law could undermine their sovereign decisions and unravel delicate efforts toward peace.

This note proposes two prosecutorial safeguards through a rewrite of 18 U.S.C. § 2441(f)(2) to harmonize U.S. practice with international legal principles. First, U.S. prosecutors should demonstrate that the territorial or nationality state is either unwilling or unable to prosecute. Second, building on the reciprocity principle, the United States should only prosecute when the territorial or nationality state has incorporated war crimes into its domestic legislation. Together, these safeguards would allow the United States to apply universal jurisdiction in a manner that respects state sovereignty while upholding accountability for war crimes.