The First but Not the Last: DOJ Announces Historic Charges Against Four Russian Nationals for War Crimes in Ukraine

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.¹ 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.”

We are watching these developments closely at Arnold & Porter and will keep you updated here on Enforcement Edge.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.