On December 6, Attorney General Merrick Garland announced the first-ever charges brought under
a decades-old war crimes statute against four Russian soldiers
accused of "heinous" acts against an American citizen
living in Ukraine. The nine-page indictment was unsealed in the
Eastern District of Virginia. It charges defendants with torture,
inhuman treatment, unlawful confinement, and conspiracy to commit
war crimes. The indictment marks the first prosecution under the War Crimes Act passed by Congress in 1996
and the inaugural charges brought by the War Crimes Accountability Team, which
Attorney General Garland launched during his visit to Kyiv last
year to investigate atrocities committed by Russia in
Ukraine.
The indictment centers on the events following Russia's
invasion of Ukraine and its occupation of the small village of Mylove in Kherson Oblast in Southern Ukraine.
The victim — who is not identified in the indictment —
is a U.S. national who lived in Mylove. The indictment alleges that
the victim did not fight or otherwise participate in the
international armed conflict between Russia and Ukraine, making him
a "protected person" under the Fourth Geneva Convention
of 1949. As for the defendants, Suren Seiranovich Mkrtchyan and
Dmitry Budnik were commanding officers in the Russian army and/or a
proxy military unit of the so-called Donetsk People's Republic,
and defendants Valerii and Nazar (whose last names are unknown)
were lower-ranking members of those units. The indictment also
references other co-conspirators, "both known and unknown to
the Grand Jury," who took part in some of the alleged
acts.
According to the indictment, on or about April 2, 2022, defendants
and their co-conspirators abducted the victim from his home. During
the abduction, defendants threw the victim down to the ground while
he was naked, put a gun to his head, and severely beat him.
Defendants then transported the victim to their military compound
for interrogation. During at least two interrogation sessions,
defendants severely beat the victim, held a knife to his throat,
pointed a gun at various parts of his body, and threatened to
sexually assault and kill him. The indictment also alleges that
defendants conducted a "mock execution" during which
defendants put a gun to the victim's head, then moved the
position of the gun and pulled the trigger, causing the bullet to
go past the victim's head and causing the victim to believe he
was about to die. Defendants and their co-conspirators continued to
detain the victim for another 10 days, during which the victim was
forced to dig trenches for the Russian army.
The indictment states that the alleged acts by the defendants
constitute "grave breaches" of the Fourth Geneva Convention, namely, torture,
inhuman treatment, and unlawful confinement of a protected person,
which are prosecutable under 18 U.S.C. §§ 2441 and 2442.
The indictment also charged defendants with conspiracy to commit
war crimes under 18 U.S.C. § 371, the federal conspiracy
statute.
The indictment is important for several reasons. First, these are
the first charges brought under the War Crimes Act since its
enactment in 1996; however, the U.S. Department of Justice (DOJ)
has made clear they will not be the last ones. Attorney General
Garland noted during the December 6 press conference:
"This is our first [indictment under the War Crimes Act] and
you should expect more." He said that DOJ had launched an
investigation into Hamas's October 7 attack on Israel and is
exploring similar charges against members of Hamas. Second, legal
scholars will take note of DOJ's interesting choice to bring
conspiracy charges for international law violations under the U.S.
conspiracy statute, likely because — as U.S. courts have
acknowledged — conspiracy is not necessarily an actionable
claim under international law.
Third, the indictment demonstrates the commitment of the U.S. government, and specifically of DOJ, to support Ukraine and to hold Russia accountable for its brutal invasion. As Acting Assistant Attorney General Nicole M. Argentieri noted: "These historic criminal charges — the first ever brought under the U.S. war crimes statute — are an important step in the Justice Department's continuing efforts to pursue every avenue of accountability for those who commit war crimes and other atrocities in Ukraine."
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