A 1789 Law Opens the Door in the U.S. To Prosecute Putin as a War Criminal

Compensating a nation under heavy shelling, with millions of refugees and thousands of casualties, could be a great burden for Russia over the years. While the Kremlin’s adversaries in the West now have set their eyes on the fortunes confiscated from Russian oligarchs, others want something more: to bring Putin to justice.

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As the havoc in Ukraine is compounded by Russian army fighting, courts in quite a few Western countries prepare to hear lawsuits seeking prosecutions for violations of international law, which could define who will bear the onus of reconstruction, or even whether Moscow will pay for it.

US federal courts may play a key role in eventual lawsuits filed by the US or Ukrainian citizens against the Russian state, its officials, individuals, or war-related companies. Nevertheless, this will involve a long and complex background process. 

Plaintiffs could make use in the United States of a law enacted in 1789 but rarely invoked since then, which grants federal courts jurisdiction over claims for damages inflicted anywhere in the world. 

Individuals can be held liable under the Alien Tort Act (ATCA) of 1789 for acts of genocide, war crimes, and some other violations of international humanitarian law. 

“Although the Supreme Court limited the scope of these tort claims so that it cannot be used against corporations, claims against foreign persons are still possible,” explained José E. Alvarez, Herbert and Rose Rubin Professor of International Law at New York University.

Insofar as the White House is interested in holding Russian President Vladimir Putin accountable for the attack, the Congress has also been willing to introduce bills to corner the Kremlin beyond crushing sanctions.

As in any war, we will have to wait for the outcome and the terms reached by the warring parties. 

On Russia’s side, its veto power in the UN Security Council gives it an effective advantage in preventing Western powers from seeking indemnities in favor of Ukraine.

When Ukrainian President Volodymyr Zelensky warned Russia that it must prepare to compensate his country, images of devastated cities and millions of people fleeing the bombing revealed enormous costs and collateral damage.

Volodymyr Zelensky’s speech to the people on television (Photo/Dreamstime)

Much of that check could end up in the hands of Russian oligarchs linked to Putin, whose accounts and properties were recently frozen in European and US banks. Furthermore, in multiple European capital cities, the idea has emerged of using these assets on behalf of the Ukrainians.   

In the case of the United States, “I don’t see how anyone can at this point successfully sue the State of Russia, given its foreign sovereignty under the U.S. Foreign Sovereign Immunities Act (FSIA), unless the government designates that country as a ‘State Sponsor of Terrorism,'” Professor Alvarez told the Itempnews Project in an email

“Suing Russian companies is easier. Even more promising would be direct lawsuits against Russian individuals, including generals located in the United States, who could be charged with war crimes against Ukrainian refugees in the country.”

The effort to seek redress from the United States may go through a long road of justifications, obstacles, and a web of laws. Nonetheless, it is not impossible because there is jurisprudence in national legislation. 

Since the beginning of the invasion on February 24, proceedings have been commenced against Russia before the International Court of Justice (ICJ) and against Putin and others parties responsible at the International Criminal Court by the Ukrainian state as an aggrieved nation. 

The Ukrainian delegation on the first day of hearings at the Peace Palace in the Hague, Netherlands (Photo/UN)

Ukraine sued Russia before the UN’s top court, accusing Moscow of planning genocide, and asking the court to intervene to stop the invasion and order the Kremlin to pay compensation, the court said. 

On March 16, by a vote of 13 to two, with Vice-President Kirill Gevorgian of Russia and Judge Xue Hanqin of China dissenting, the ICJ ruled that Russia “shall immediately suspend the military operations that it commenced on 24 February.”

Although the ICJ’s verdicts are binding, news reports questioned whether Moscow would abide by the ruling, and the court has no direct means of enforcing them.

Ukraine’s case before the International Court was brought by the US law firm Covington & Burling, which, acting pro bono, joined the extensive list of organizations and private companies interested in taking this situation to its ultimate legal consequences.

The veto power that Russia holds under the UNSC seems to be at the center of Ukraine’s concerns (Foto/UN Press)

“As a result, there may be sentences for compensation,” warned Professor Francisco Jiménez García, professor of Public International Law and International Relations at Rey Juan Carlos University in Madrid. 

Under international law, “any internationally wrongful act committed by a State needs to be fully redressed or compensated and such claims may be brought by States injured by the war as individuals,” he added. 

“In the case of judgments of conviction, they may include compensation to victims and redress to the country,” said José Esteve Molto, professor of Public International Law and International Relations at the University of Valencia in Spain. 

“In addition, criminal proceedings have just been initiated by the offices of the Attorney General in Germany and Spain, and more are on the way in other European countries.”

Once the Kremlin’s attack is over, compensation measures will be established, although “it will depend on the willingness to negotiate at that time,” clarified Professor Jimenez. 

For the moment, both Russia and Ukraine are stuck on something primordial, that is, opening the door to a permanent ceasefire. 

While their public positions have been softened, they remain very far apart. Discussing redress is not envisaged right now.

Over the past two centuries, from the Treaty of Versailles in 1919 that ended World War I and forced Germany to pay compensation, to the recent judgment against Uganda last January to compensate the Democratic Republic of Congo for the war, precedents for what may be on the way abound.   

The closest thing to possible compensation from the Russians would be the “Compensation Fund (oil-for-food) established with respect to Iraq after the 1991 invasion of Kuwait, but the Fund was established by the Security Council and in this case, would be vetoed by Russia,” argued Professor Jimenez.

Officially called the UN Compensation Commission, it was mandated to hear claims and pay compensation for the invasion promoted by Iraqi dictator Saddam Hussein.

As many as 2.7 million claims were filed with the Commission, seeking $352 billion in compensation. 

Upon the final payment by the Iraqis on January 13, 2022, a total of $52.4 billion in compensation was awarded to 1.5 million claimants, 31 years after the invasion and without Hussein in power. 

As the West puts Russia against the wall by sanctioning its Central Bank, freezing State-owned financial assets abroad, withdrawing the SWIFT, and with dozens of companies canceling operations, the possibility of all that money being used on behalf of Ukraine to offset the costs of the war is, for the moment, impossible.

President Biden has been forceful in sanctions against Russia (WH/Press)

“Sovereign properties such as embassies, buildings, art, would not be significant in this because they are protected by the Vienna Convention on Diplomatic Relations” and cannot be seized, commented Tyler Kustra, assistant professor of Politics and International Relations at the University of Nottingham in the United Kingdom.

Kustra cautions, however: “The United States has not previously recognized the sovereign immunity of some countries when it suits it,” so it may set a precedent and a challenge that President Joe Biden decided to use Russian state assets and hand them over to Ukraine for compensation.

The White House declined to comment on plans by the administration and its European partners to help Ukraine seek redress for the war. 

When the European Union, the United States, and the United Kingdom began to punish Russian businessmen and tycoons, the decision made sense because of the power distribution in Russia after the collapse of the Soviet Union in 1991, and from 1998 onwards, upon the country’s first major economic crisis. 

The big question mark now is whether this wealth of the oligarchs could be redirected to compensate Ukraine and the neighboring countries that are receiving the flood of refugees, or will they return to their owners’ hands after the war and negotiations.

In the UK, for years a sanctuary for the vast fortunes of oligarchs linked to Putin and the Russian government, Cabinet Office minister Michael Gove said that the option of using the properties of sanctioned Russians to accommodate Ukrainian refugees is being explored, without ruling out other uses.

Beyond British private property laws and all the legal artillery that the eight hundred or so Russians sanctioned in the UK can use to recover their assets, the point at issue revolves around their actual responsibility in the current conflict. 

“While the names of Russian oligarchs and businesspersons with strong ties to the Kremlin are well known, linking them to particular crimes is fraught with difficulties,” wrote three researchers on illicit finance on the London School of Economics blog, cited by Fortune in a report.

 “In the case of the oligarchs, it would have to be proven that they were linked to the Russian attack or that their support was decisive for the war operations,” agreed Jiménez, the professor of public international law.

Dozens of mighty ones in Russia with connections in foreign countries are behind “the core of Putin’s war machine,” as dubbed by the US Treasury Department. Undoubtedly, they will put up a good fight to recover their spoils.

US legal definitions of redress or compensation are well written and regulated, and when it comes to armed conflict or war, lawyers and judges recognize that the discussions can sometimes be complex and even unfeasible.

The United States in the middle of it all

Making Russian companies tied to the Kremlin pay for damages caused by Putin’s onslaught could be the purpose of Ukrainian victims before US courts.

However, measuring the extent to which they are truly responsible for it is quite another challenge.

To the contrary of state property, the assets of Russian companies in the United States could not be covered by the US Foreign Sovereign Immunities Act. 

“Such companies (and the oligarchs who run them) could face claims for damages, but one would have to see (even) what the theory of that ‘damages’ claim is,” explained New York University professor Alvarez, who has advised the State Department on various matters and is the author of six books on this area of international law.

“I do not believe that indirect financial support to the Russian government (such as payment of taxes) constitutes a sufficient connection to allow such a claim; more facts would be needed to indicate direct corporate or oligarch support for the invasion or related wrongdoing,” the scholar said. 

Some events in the United States comparable to what is at stake in the heat of the invasion of Ukraine go back to the lawsuits in a Manhattan district court brought by the victims of the Bosnian War in 1993 against Radovan Karadzic, president of the self-proclaimed Bosnian Serb republic of “Srpska”.

Karadzic was charged by the UN with genocide, war crimes, and crimes against humanity committed during the Yugoslav War.

After a complex trial in the United States invoking the Alien Tort Claims Act (ATCA)of 1789, and the Torture Victims Act, an appeals court ruled that Karadzic could be held accountable for complicity. 

At the end of the day, Karadzic was sued by the International Criminal Tribunal for the former Yugoslavia after his arrest in 2008.  

In 2004 the U.S. Supreme Court issued the first of two decisions that significantly limited the scope of lawsuits that could be brought under the ATCA, wrote Duane Windsor, Lynette S. Autrey Professor of Management, Jones Graduate School of Business, Rice University. 

The Supreme Court has limited the use of the TACA in recent years (Photo/Dreamstime)

The court held that the ATCA applies only to violations of international norms that are “specific, universal, and obligatory.”

Indemnifying a bombed-out nation with more than two million refugees and thousands of internally displaced persons like Ukraine will represent a heavy burden for whoever takes on this task. All in all, the Kremlin’s foes in the West now have their attention on the fighting coming to an end to make way for the pursuit of justice, beyond the ongoing sanctions. 

Apropos the fortunes confiscated from Russian oligarchs, potential war crimes trials, Putin’s or Russia’s political future, the history of wars and conflicts teaches that there is a fine line between the aggressors and the victims, the victor and the defeated. 

However, the fact that Ukraine has been invaded so perversely and under ephemeral arguments makes this situation an unprecedented challenge to the entire structure of collective security, at least since the end of the Cold War in 1989.

The point at issue is that all and any leaders of the Western powers have said over and over again since the first tank set foot in Ukraine in February is that Putin, or Russia, will pay for it. It will depend on multiple factors yet to emerge.

Editing and Proofreading: Conchita Delgado

Background editing: Carlos Tagliafico

Illustration: Project Itempnews/With photo of the Presidency of Russia.

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