18 U.S.C. § 2441 — War crimes

Page 625 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2441 (Added Pub. L. 105–314, title I, § 105(a), Oct. 30, 1998, 112 Stat. 2977; amended Pub. L. 118–31, div. E, title LI, § 5102(e), Dec. 22, 2023, 137 Stat. 935.) Editorial Notes AMENDMENTS 2023—Pub. L. 118–31 inserted ‘‘does not require inter- personal physical contact, and’’ before ‘‘includes’’. § 2428. Forfeitures (a) IN GENERAL.—The court, in imposing sen- tence on any person convicted of a violation of this chapter, shall order, in addition to any other sentence imposed and irrespective of any provision of State law, that such person shall forfeit to the United States— (1) such person’s interest in any property, real or personal, that was used or intended to be used to commit or to facilitate the commis- sion of such violation; and (2) any property, real or personal, consti- tuting or derived from any proceeds that such person obtained, directly or indirectly, as a re- sult of such violation. (b) PROPERTY SUBJECT TO FORFEITURE.— (1) IN GENERAL.—The following shall be sub- ject to forfeiture to the United States and no property right shall exist in them: (A) Any property, real or personal, used or intended to be used to commit or to facili- tate the commission of any violation of this chapter. (B) Any property, real or personal, that constitutes or is derived from proceeds traceable to any violation of this chapter. (2) APPLICABILITY OF CHAPTER 46.—The provi- sions of chapter 46 of this title relating to civil forfeitures shall apply to any seizure or civil forfeiture under this subsection. (Added Pub. L. 109–164, title I, § 103(d)(1), Jan. 10, 2006, 119 Stat. 3563.) § 2429. Mandatory restitution (a) Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal pen- alty authorized by law, the court shall order res- titution for any offense under this chapter. (b)(1) The order of restitution under this sec- tion shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim’s losses, as determined by the court under paragraph (3), and shall addi- tionally require the defendant to pay the great- er of the gross income or value to the defendant of the victim’s services, if the services con- stitute commercial sex acts as defined under section 1591. (2) An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A. (3) As used in this subsection, the term ‘‘full amount of the victim’s losses’’ has the same meaning as provided in section 2259(b)(3). (c) The forfeiture of property under this sec- tion shall be governed by the provisions of sec- tion 413 (other than subsection (d) of such sec- tion) of the Controlled Substances Act (21 U.S.C. 853). (d) As used in this section, the term ‘‘victim’’ means the individual harmed as a result of a crime under this chapter, including, in the case of a victim who is under 18 years of age, incom- petent, incapacitated, or deceased, the legal guardian of the victim or a representative of the victim’s estate, or another family member, or any other person appointed as suitable by the court, but in no event shall the defendant be named such representative or guardian. (Added Pub. L. 115–392, § 3(a), Dec. 21, 2018, 132 Stat. 5251.) CHAPTER 118—WAR CRIMES Sec. 2441. War crimes. 2442. Recruitment or use of child soldiers. Editorial Notes AMENDMENTS 2008—Pub. L. 110–340, § 2(a)(3)(A), Oct. 3, 2008, 122 Stat. 3736, added item 2442. 1996—Pub. L. 104–294, title VI, § 605(p)(2), Oct. 11, 1996, 110 Stat. 3510, redesignated item 2401 as 2441. § 2441. War crimes (a) OFFENSE.—Whoever, whether inside or out- side the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. (b) JURISDICTION.—There is jurisdiction over an offense described in subsection (a) if— (1) the offense occurs in whole or in part within the United States; or (2) regardless of where the offense occurs— (A) the victim or offender is— (i) a national of the United States or an alien lawfully admitted for permanent res- idence; or (ii) a member of the Armed Forces of the United States, regardless of nationality; or (B) the offender is present in the United States, regardless of the nationality of the victim or offender. (c) DEFINITION.—As used in this section the term ‘‘war crime’’ means any conduct— (1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such conven- tion to which the United States is a party; (2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Re- specting the Laws and Customs of War on Land, signed 18 October 1907; (3) which constitutes a grave breach of com- mon Article 3 (as defined in subsection (d)) when committed in the context of and in asso- ciation with an armed conflict not of an inter- national character; or (4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other De- vices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, Page 626 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2441 willfully kills or causes serious injury to civil- ians. (d) COMMON ARTICLE 3 VIOLATIONS.— (1) PROHIBITED CONDUCT.—In subsection (c)(3), the term ‘‘grave breach of common Arti- cle 3’’ means any conduct (such conduct con- stituting a grave breach of common Article 3 of the international conventions done at Gene- va August 12, 1949), as follows: (A) TORTURE.—The act of a person who commits, or conspires or attempts to com- mit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person with- in his custody or physical control for the purpose of obtaining information or a con- fession, punishment, intimidation, coercion, or any reason based on discrimination of any kind. (B) CRUEL OR INHUMAN TREATMENT.—The act of a person who commits, or conspires or attempts to commit, an act intended to in- flict severe or serious physical or mental pain or suffering (other than pain or suf- fering incidental to lawful sanctions), in- cluding serious physical abuse, upon another within his custody or control. (C) PERFORMING BIOLOGICAL EXPERI- MENTS.—The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons. (D) MURDER.—The act of a person who in- tentionally kills, or conspires or attempts to kill, or kills whether intentionally or unin- tentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause. (E) MUTILATION OR MAIMING.—The act of a person who intentionally injures, or con- spires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, in- cluding those placed out of combat by sick- ness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently dis- abling any member, limb, or organ of his body, without any legitimate medical or dental purpose. (F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—The act of a person who inten- tionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in vio- lation of the law of war. (G) RAPE.—The act of a person who forc- ibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by pene- trating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign ob- ject. (H) SEXUAL ASSAULT OR ABUSE.—The act of a person who forcibly or with coercion or threat of force engages, or conspires or at- tempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact. (I) TAKING HOSTAGES.—The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, in- jure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from act- ing as an explicit or implicit condition for the safety or release of such person or per- sons. (2) DEFINITIONS.—In the case of an offense under subsection (a) by reason of subsection (c)(3)— (A) the term ‘‘severe mental pain or suf- fering’’ shall be applied for purposes of para- graphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340(2) of this title; (B) the term ‘‘serious bodily injury’’ shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113(b)(2) of this title; (C) the term ‘‘sexual contact’’ shall be ap- plied for purposes of paragraph (1)(G) in ac- cordance with the meaning given that term in section 2246(3) of this title; (D) the term ‘‘serious physical pain or suf- fering’’ shall be applied for purposes of para- graph (1)(B) as meaning bodily injury that involves— (i) a substantial risk of death; (ii) extreme physical pain; (iii) a burn or physical disfigurement of a serious nature (other than cuts, abra- sions, or bruises); or (iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and (E) the term ‘‘serious mental pain or suf- fering’’ shall be applied for purposes of para- graph (1)(B) in accordance with the meaning given the term ‘‘severe mental pain or suf- fering’’ (as defined in section 2340(2) of this title), except that— (i) the term ‘‘serious’’ shall replace the term ‘‘severe’’ where it appears; and (ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term ‘‘serious and non-transitory mental harm (which need not be prolonged)’’ shall replace the term ‘‘prolonged mental harm’’ where it appears. (3) INAPPLICABILITY OF CERTAIN PROVISIONS WITH RESPECT TO COLLATERAL DAMAGE OR INCI- DENT OF LAWFUL ATTACK.—The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the ap- plicability of those subparagraphs to an of- fense under subsection (a) by reasons of sub- section (c)(3) with respect to— Page 627 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2441 (A) collateral damage; or (B) death, damage, or injury incident to a lawful attack. (4) INAPPLICABILITY OF TAKING HOSTAGES TO PRISONER EXCHANGE.—Paragraph (1)(I) does not apply to an offense under subsection (a) by reason of subsection (c)(3) in the case of a pris- oner exchange during wartime. (5) DEFINITION OF GRAVE BREACHES.—The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article. (e) NONAPPLICABILITY OF CERTAIN LIMITA- TIONS.—In the case of an offense described in subsection (a) and further described in sub- sections (c)(1) and (c)(3), an indictment may be found or an information may be instituted at any time without limitation. (f) CERTIFICATION REQUIREMENT.— (1) IN GENERAL.—No prosecution for an of- fense described in subsection (a) shall be un- dertaken by the United States except on writ- ten certification of the Attorney General, the Deputy Attorney General, or an Assistant At- torney General, which function of approving prosecutions may not be delegated, that a prosecution by the United States is in the pub- lic interest and necessary to secure substan- tial justice. (2) OFFENDER PRESENT IN UNITED STATES.— For an offense for which jurisdiction exists under subsection (b)(2)(B) (and does not exist under any other provision of subsection (b)), the written certification required under para- graph (1) of this subsection that a prosecution by the United States is in the public interest and necessary to secure substantial justice shall be made by the Attorney General or the Deputy Attorney General, which function may not be delegated. In issuing such certification, the same official shall weigh and consider, among other relevant factors— (A) whether the alleged offender can be re- moved from the United States for purposes of prosecution in another jurisdiction; and (B) potential adverse consequences for na- tionals, servicemembers, or employees of the United States. (g) INPUT FROM OTHER AGENCY HEADS.—The Secretary of Defense and Secretary of State may submit to the Attorney General for consid- eration their views generally regarding poten- tial benefits, or potential adverse consequences for nationals, servicemembers, or employees of the United States, of prosecutions of offenses for which jurisdiction exists under subsection (b)(2)(B). (h) NO JUDICIAL REVIEW.—Certifications under subsection (f) and input from other agency heads under subsection (g) are not subject to judicial review. (i) RULES OF CONSTRUCTION.—Nothing in this section shall be construed as— (1) support for ratification of or accession to the Rome Statute of the International Crimi- nal Court, which entered into force on July 1, 2002; or (2) consent by the United States to any as- sertion or exercise of jurisdiction by any international, hybrid, or foreign court. (Added Pub. L. 104–192, § 2(a), Aug. 21, 1996, 110 Stat. 2104, § 2401; renumbered § 2441, Pub. L. 104–294, title VI, § 605(p)(1), Oct. 11, 1996, 110 Stat. 3510; amended Pub. L. 105–118, title V, § 583, Nov. 26, 1997, 111 Stat. 2436; Pub. L. 107–273, div. B, title IV, § 4002(e)(7), Nov. 2, 2002, 116 Stat. 1810; Pub. L. 109–366, § 6(b)(1), Oct. 17, 2006, 120 Stat. 2633; Pub. L. 117–351, § 2, Jan. 5, 2023, 136 Stat. 6265.) Editorial Notes REFERENCES IN TEXT The date of the enactment of the Military Commis- sions Act of 2006, referred to in subsec. (d)(2)(E)(ii), is the date of enactment of Pub. L. 109–366, which was ap- proved Oct. 17, 2006. AMENDMENTS 2023—Subsec. (b). Pub. L. 117–351, § 2(1), added subsec. (b) and struck out former subsec. (b). Prior to amend- ment, text read as follows: ‘‘The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).’’ Subsecs. (e) to (i). Pub. L. 117–351, § 2(2), added sub- secs. (e) to (i). 2006—Subsec. (c)(3). Pub. L. 109–366, § 6(b)(1)(A), added par. (3) and struck out former par. (3) which read as fol- lows: ‘‘which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or’’. Subsec. (d). Pub. L. 109–366, § 6(b)(1)(B), added subsec. (d). 2002—Subsecs. (a) to (c). Pub. L. 107–273 made tech- nical correction to directory language of Pub. L. 105–118, § 583. See 1997 Amendment notes below. 1997—Subsec. (a). Pub. L. 105–118, § 583(1), as amended by Pub. L. 107–273, substituted ‘‘war crime’’ for ‘‘grave breach of the Geneva Conventions’’. Subsec. (b). Pub. L. 105–118, § 583(2), as amended by Pub. L. 107–273, substituted ‘‘war crime’’ for ‘‘breach’’ in two places. Subsec. (c). Pub. L. 105–118, § 583(3), as amended by Pub. L. 107–273, amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: ‘‘(c) DEFINITIONS.—As used in this section, the term ‘grave breach of the Geneva Conventions’ means con- duct defined as a grave breach in any of the inter- national conventions relating to the laws of warfare signed at Geneva 12 August 1949 or any protocol to any such convention, to which the United States is a party.’’ 1996—Pub. L. 104–294 renumbered section 2401 of this title as this section. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–366, § 6(b)(2), Oct. 17, 2006, 120 Stat. 2635, provided that: ‘‘The amendments made by this sub- section [amending this section], except as specified in subsection (d)(2)(E) of section 2441 of title 18, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105–118 [amending this sec- tion] (as amended by section 4002(e)(7) of Public Law 107–273).’’ EFFECTIVE DATE OF 2002 AMENDMENT Pub. L. 107–273, div. B, title IV, § 4002(e)(7), Nov. 2, 2002, 116 Stat. 1810, provided that the amendment made by section 4002(e)(7) is effective Nov. 26, 1997. Page 628 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2442 1 So in original. An additional closing parenthesis probably should precede the semicolon. SHORT TITLE Pub. L. 104–192, § 1, Aug. 21, 1996, 110 Stat. 2104, pro- vided that: ‘‘This Act [enacting this chapter] may be cited as the ‘War Crimes Act of 1996’.’’ IMPLEMENTATION OF TREATY OBLIGATIONS Pub. L. 109–366, § 6(a), Oct. 17, 2006, 120 Stat. 2632, pro- vided that: ‘‘(1) IN GENERAL.—The acts enumerated in subsection (d) of section 2441 of title 18, United States Code, as added by subsection (b) of this section, and in sub- section (c) of this section [enacting section 2000dd–0 of Title 42, The Public Health and Welfare], constitute violations of common Article 3 of the Geneva Conven- tions prohibited by United States law. ‘‘(2) PROHIBITION ON GRAVE BREACHES.—The provisions of section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in common Article 3 in the context of an armed conflict not of an international character. No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such sec- tion 2441. ‘‘(3) INTERPRETATION BY THE PRESIDENT.— ‘‘(A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and applica- tion of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions. ‘‘(B) The President shall issue interpretations de- scribed by subparagraph (A) by Executive Order pub- lished in the Federal Register. ‘‘(C) Any Executive Order published under this paragraph shall be authoritative (except as to grave breaches of common Article 3) as a matter of United States law, in the same manner as other administra- tive regulations. ‘‘(D) Nothing in this section shall be construed to affect the constitutional functions and responsibil- ities of Congress and the judicial branch of the United States. ‘‘(4) DEFINITIONS.—In this subsection: ‘‘(A) GENEVA CONVENTIONS.—The term ‘Geneva Con- ventions’ means— ‘‘(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3217); ‘‘(ii) the Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, done at Gene- va August 12, 1949 (6 UST 3217); ‘‘(iii) the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and ‘‘(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva August 12, 1949 (6 UST 3516). ‘‘(B) THIRD GENEVA CONVENTION.—The term ‘Third Geneva Convention’ means the international conven- tion referred to in subparagraph (A)(iii).’’ Executive Documents EXECUTIVE ORDER NO. 13440 Ex. Ord. No. 13440, July 20, 2007, 72 F.R. 40707, which interpreted the Geneva Conventions Common Article 3 as applied to a program of detention and interrogation operated by the Central Intelligence Agency, was re- voked by Ex. Ord. No. 13491, § 1, Jan. 22, 2009, 74 F.R. 4893, set out as a note under section 2000dd of Title 42, The Public Health and Welfare. § 2442. Recruitment or use of child soldiers (a) OFFENSE.—Whoever knowingly— (1) recruits, enlists, or conscripts a person to serve while such person is under 15 years of age in an armed force or group; or (2) uses a person under 15 years of age to par- ticipate actively in hostilities; knowing such person is under 15 years of age, shall be punished as provided in subsection (b). (b) PENALTY.—Whoever violates, or attempts or conspires to violate, subsection (a) shall be fined under this title or imprisoned not more than 20 years, or both and, if death of any person results, shall be fined under this title and im- prisoned for any term of years or for life. (c) JURISDICTION.—There is jurisdiction over an offense described in subsection (a), and any attempt or conspiracy to commit such offense, if— (1) the alleged offender is a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22))) or an alien lawfully admit- ted for permanent residence in the United States (as defined in section 101(a)(20) of such Act (8 U.S.C. 1101(a)(20)); 1 (2) the alleged offender is a stateless person whose habitual residence is in the United States; (3) the alleged offender is present in the United States, irrespective of the nationality of the alleged offender; or (4) the offense occurs in whole or in part within the United States. (d) DEFINITIONS.—In this section: (1) PARTICIPATE ACTIVELY IN HOSTILITIES.— The term ‘‘participate actively in hostilities’’ means taking part in— (A) combat or military activities related to combat, including sabotage and serving as a decoy, a courier, or at a military check- point; or (B) direct support functions related to combat, including transporting supplies or providing other services. (2) ARMED FORCE OR GROUP.—The term ‘‘armed force or group’’ means any army, mili- tia, or other military organization, whether or not it is state-sponsored, excluding any group assembled solely for nonviolent political asso- ciation. (Added Pub. L. 110–340, § 2(a)(1), Oct. 3, 2008, 122 Stat. 3735.) CHAPTER 119—WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICA- TIONS Sec. 2510. Definitions. 2511. Interception and disclosure of wire, oral, or electronic communications prohibited. 2512. Manufacture, distribution, possession, and ad- vertising of wire, oral, or electronic com- munication intercepting devices prohibited. 2513. Confiscation of wire, oral, or electronic com- munication intercepting devices. [2514. Repealed.] 2515. Prohibition of use as evidence of intercepted wire or oral communications.