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Is there any circumstance in which a private individual or organization could undertake a criminal prosecution for a violation of 18 U.S. Code § 2441 - War crimes?

Since the passage of the "Justice for Victims of War Crimes Act", this law now criminalizes war crimes committed anywhere by anyone, and allows anyone present in the United States to be prosecuted for them. This is, potentially, a lot of cases, but the United States itself is barred from prosecuting any of them without a special certification from the Attorney General.

In Linda R.S. v. Richard D., the Supreme Court held that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another". However, it seems impossible to violate § 2441 while acting in one's capacity as a private citizen, so it is not clear that that principle would operate to bar a private prosecution here.

If not, what sorts of injunctive relief or civil damages might be available in U.S. courts, by virtue of someone having violated, but not yet having been prosecuted for violating, this law?

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Is there any circumstance in which a private individual or organization could undertake a criminal prosecution for a violation of 18 U.S. Code § 2441 - War crimes?

No.

Private prosecutions for federal crimes are not possible in the U.S.

The U.S. Constitution also requires a grand jury indictment prior to bringing any felony prosecution, and in this case, high U.S. government officials must approve bringing the charges as well.

In Linda R.S. v. Richard D., the Supreme Court held that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another". However, it seems impossible to violate § 2441 while acting in one's capacity as a private citizen, so it is not clear that that principle would operate to bar a private prosecution here.

You have totally misunderstood the quoted language. The quoted language has nothing to do with the capacity in which someone violated a criminal law, it has to do with the standing of someone to enforce a criminal law. Linda R.S. v. Richard D. holds that private citizens have no right to see that the criminal laws are enforced.

Linda R.S. v. Richard D. specifically holds that you can't bring an action for injunctive relief to force the government to enforce criminal laws. Castle Rock v. Gonzales, 545 U.S. 748 (2005), meanwhile, bars civil actions for money damages by people who are personally harmed by the failure of the government to enforce criminal laws or restraining orders.

If not, what sorts of injunctive relief or civil damages might be available in U.S. courts, by virtue of someone having violated, but not yet having been prosecuted for violating, this law?

If a war crime was committed against you, then you, or if you are deceased your estate (or next of kin in the case of some wrongful death statutes in lieu of your estate) can bring a claim for money damages in most cases (if there is not governmental immunity, which there often would be). This is because almost everything that is a war crime with a victim is also a tort which can be enforced in a civil action brought by the victim against the wrongdoer.

This could be done for victims of the crime who are not U.S. citizens where the war crime occurred abroad under the Alien Tort Statute:

The Alien Tort Statute ("ATS"; also known as the Alien Tort Claims Act) is a common name for 28 U.S.C. § 1350. The ATS grants federal district courts original jurisdiction over any civil action where an alien sues for a tort “committed in violation of the law of nations or of a treaty of the United States." Broadly speaking, it serves as a statutory instrument for gaining universal jurisdiction over violations of international law.

In many cases, where war crimes are committed by a government official in the U.S., there would be a cause of action for the victim of the war crime, either in a § 1983 action (for state and local officials), or in a Bivens action (for federal officials).

If you are not the victim of the war crime, you can't sue because you don't have standing to do so.

These theories of tort liability are entirely distinct from 18 U.S. § 2441.

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  • "Linda R.S. v. Richard D. specifically holds that you can bring an action for injunctive relief to force the government to enforce criminal laws." Should that be can't?
    – cpast
    Nov 13 at 2:56
  • @cpast Thanks. Fixed.
    – ohwilleke
    Nov 13 at 7:29

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