I had the honor of testifying last week before the Tom Lantos Human Rights Commission at a hearing devoted to “Pursuing Accountability for Atrocities.” My written testimony is here and the video is here. The Commission, which is an official bipartisan body in the U.S. House of Representatives, convened the hearing to explore both the challenges of pursuing accountability for perpetrators of grave human rights crimes and concrete proposals for strengthening U.S. government capacities in this regard. Joining me were David Rybicki, Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice; Louis A. Rodi III, Acting Assistant Director, HSI National Security Investigations, U.S. Department of Homeland Security; and C. Dixon Osburn, the Executive Director of the Center for Justice & Accountability. Their written testimony can be found here. I covered an earlier hearing on “Prospects for Justice in Iraq and Syria” in a previous Just Security piece.
In my remarks, I identified a “wish list” of 10 concrete proposals that Congress might take up. Some of these are relatively discrete and technical. Others are more far-reaching. All would significantly enhance the United States’ ability to respond to atrocity crimes and, in particular, to more effectively prosecute perpetrators in our midst and prevent the United States from serving as a safe haven for human rights abusers.
- The most glaring gap in our prosecutorial authorities is the lack of a crimes against humanity statute. U.S. courts can prosecute a range of international offenses: war crimes, torture, terrorism, trafficking, the use and recruitment of child soldiers, female genital mutilation, piracy, and genocide. However, a massacre of civilians outside of a state of armed conflict, an act of enforced disappearance where there is no proof that the victim was tortured, or an ethnic cleansing campaign without evidence that the perpetrators intend to destroy a protected group in whole or in part cannot be easily prosecuted under these existing authorities. In 2010, Senator Dick Durbin (D-IL) produced a solid bill that would close this gap in Title 18, but it has so far not advanced. (See my discussion of this bill and other proposals here).
- Turning to the jurisdictional framework: All but one of these existing human rights statutes allow U.S. authorities to prosecute offenders who are found, brought or “present in” the United States, regardless of the citizenship of the perpetrator, the citizenship of the victim, or the place of commission of the alleged crime. The one exception is the War Crimes Act, which allows for the prosecution of war crimes only if the victim or perpetrator is a U.S. national or member of the U.S. armed forces. So, for example, war criminals hailing from Syria who committed crimes against their compatriots will escape prosecution for war crimes if they eventually make their way here. Law enforcement would have to utilize immigration authorities instead, which offer an expedient solution but are no substitute for full accountability for the underlying offenses. (Discussion here with respect to a Liberian perpetrator, and here with respects to a Salvadoran perpetrator). The 1949 Geneva Conventions oblige member states to prosecute all individuals who commit grave breaches of those treaties, regardless of nationality. In that respect, the United States is not in full compliance with these treaties, which now enjoy universal ratification across the globe. Extending “present-in jurisdiction” to war crimes would bring greater coherence to the U.S. penal code, and eliminate the current patchwork approach, while at the same time signaling a U.S. commitment to enable its courts to prosecute all atrocity crimes in equal measure.
- The United States can appropriately prosecute human rights abusers under a range of theories of responsibility, including conspiracy, complicity, and attempt. However, the United States has no superior responsibility statute that would empower federal authorities to prosecute superiors who allow their subordinates to commit crimes with impunity (earlier coverage here). Superior responsibility finds expression in other areas of US law—including a very good formulation within the Military Commission Act (sec. 950q)—and can serve as the basis for removal in the immigration context. Extending the doctrine to our ordinary criminal courts should be an easy fix. This would ensure that those who might be most responsible for a campaign of violence can be held responsible in U.S. courts if they are within our jurisdiction, particularly since it is superiors who are likely to have the resources to come to the United States.In these three respects—the lack of a crimes against humanity statute, a truncated war crimes statute, and the lack of a superior responsibility statute—the United States is out of step with, and indeed lags behind, many of our allies and coalition partners around the world.
- The United States’ statute criminalizing the commission of female genital mutilation was declared unconstitutional by a federal court in Michigan. There are discrete amendments that could be made to ensure that the statute complies with the limitations set by the U.S. Constitution’s commerce clause for federal penal legislation. In particular, this deficiency can be cured by requiring a showing that the defendant or victim traveled in, or used, a channel or instrumentality of interstate or foreign commerce in furtherance of FGM—including through communications or payment—or that the act of FGM otherwise occurred in, or affected, interstate or foreign commerce. Indeed, the victims in that first tragic case had been transported across state lines in order to be subjected to genital mutilation and so that case could have come out differently had this statute contained such a jurisdictional basis.
- The genocide statute as originally drafted had a very limited reach. Thanks to amendments made in 2007 and 2009, law enforcement can now prosecute any génocidaire so long as he or she is “present in” the United States. These amendments came too late to address one of the worst genocides of our era: the 1994 genocide in Rwanda. As a result, DOJ and DHS have had to use immigration remedies against Rwandan perpetrators found in the United States. These jurisdictional provisions could be made retroactive without running afoul of the ex post facto clause in the U.S. Constitution.
- Turning to immigration remedies. U.S. law contains highly specific grounds that render individuals inadmissible and removable, including the commission of genocide or of torture by state actors. There is, as yet, no bar to individuals who commit more generalized acts of persecution or for individuals who are involved in the commission of FGM. Without such a bar, individuals who participate in religious persecution are admissible and can adjust their status, obtain visas, and remain in the United States. A broad bar was contemplated in the 1970s, but was replaced by a more specific statute focused on Nazi persecutors amidst objections.
- Although this hearing was mostly focused on the federal government’s authorities and criminal accountability, civil redress remains an important accountability tool, in part because it can be pursued directly by victims. Congress has enabled the victims of a whole range of terrorism, human trafficking offenses, and other modern forms of slavery to bring civil claims against those who are deemed responsible. By contrast, there are more limited grounds on which victims of other human rights violations can bring suit. The Torture Victim Protection Act (TVPA) allows for the assertion of federal jurisdiction over acts of torture and extrajudicial killing, but only when the perpetrator acts under color of law of a foreign nation. Congress could expand the reach of the TVPA by allowing civil parties to assert claims for war crimes, as defined in U.S. law, and crimes against humanity, and could remove the color of law requirement. In addition, Congress could effectively overturn the Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum by rendering the Alien Tort Statute expressly extraterritorial.
- Turning to institutional issues, Congress should work to ensure that the FBI’s war crimes unit is not disbanded, as I have discussed elsewhere on these pages. There are apparently proposals afoot to disperse this war crimes expertise elsewhere in the Bureau and move this portfolio into the Civil Rights Division. The Civil Rights Division’s core mandate is dedicated to enforcing domestic civil rights authorities on behalf of vulnerable individuals and groups within the United States. It has little experience with international investigations, trying to understand complex foreign conflict situations, the execution of requests for mutual legal assistance, or the unique elements and evidentiary bases of international crimes. Removing or dispersing this concentrated war crimes expertise within the Bureau will undermine operations in the field when it comes to this most specialized of cases.
- While these proposals are all important and needed, there are existing human rights authorities that are underutilized. There have been only two cases invoking the torture statute: one resulted in a landmark verdict (“Chuckie” Taylor) and the other a very favorable extradition to the locus delicti (Sulejman Mujagic). The rest of this suite of statutes remain moribund; by contrast, there are dozens of terrorism and trafficking prosecutions successfully going forward that present many of the same evidentiary and other challenges as human rights prosecutions. Congress should continue to exercise its oversight functions to better understand where the obstacles are to charges being brought under our human rights statutes by convening working sessions to enable DOJ to speak candidly about why more cases have not proceeded and to educate civil society groups about the kinds of evidence needed to sustain an indictment. Congress could also invite DOJ to report more regularly on efforts to invoke these statutes and why particular investigations have not borne fruit.
- There are actions that Congress can take to promote accountability abroad, through multilateral and bilateral channels. Although the international community has not replicated the original ad hoc international tribunals, there are a range of new and innovative accountability measures that deserve U.S. support. These include hybrid tribunals and specialized chambers, such as the Special Criminal Chamber in the Central African Republic; new investigative mechanisms such as the IIIM for Syria and UNITAD for Iraq; and impactful civil society organizations, such as the Commission on International Justice and Accountability, which is creating targeted dossiers with linkage evidence on key potential defendants in Syria and elsewhere. Additionally, the United States has long played a role in capacity building around international justice issues and should continue to do so in areas around the world where justice is being pursued. The United States should also be in a position to lend its expertise, share evidence and leads, second personnel, and otherwise support human rights cases that are proceeding in foreign courts, particularly on the part of our allies which are prosecuting dozens of war crimes cases emerging from the conflicts in Syria and Iraq. Importantly, Just Security earlier reported on the support the United States has offered for these cases diplomatically. The Syria War Crimes Accountability Act provides a great example of what can be done.
Putting these new authorities in place now will ensure that the United States has the tools it needs to address the next cohort of persecutors who attempt to find safe haven in the United States after committing international crimes in today’s conflicts and repressive states. I am hopeful that these these proposals will find favor and inspire Congress to strengthen the U.S. legal framework around atrocity crimes from all possible perspectives: criminal law, immigration law, civil law, and diplomacy.
In the Question & Answer sessions, we touched on a whole range of issues, including:
1. What factors guide which cases to investigate and prosecute?
DOJ/DHS Answer: whether there is the evidence available to sustain a conviction under the criminal law’s burden of proof.
2. Whether DOJ/DHS would pursue someone from a regime that had received assistance from the United States in the past or someone who had been shepherded here from the intelligence community?
DOJ/DHS Answer: Yes, our job is to prosecute criminals regardless of their origins; no other agency has a veto power.
3. Whether the FBI’s War Crimes Center should be folded.
DOJ Answer: We will continued to pursue these cases regardless of how the Bureau reorganizes. DHS Answer: No, the loss of the unit would be detrimental to the mission.
4. Does law enforcement coordinate with the State Department’s Office of Global Criminal Justice?
5. Does law enforcement coordinate with their counterparts abroad in war crimes investigations?
DOJ/DHS Answer: Yes, all the time.
6. Does the United States have the authorities it needs to prosecute U.S. citizens who commit atrocities abroad, such as former Sri Lankan Defense Minister Gotabaya Rajapaksa and Libyan warlord Khalifa Haftar and would they be entitled to diplomatic immunity?
DOJ/DHS Answer: Yes, we have the authorities to prosecute U.S. nationals who commit war crimes abroad, but we can’t talk about specific investigations. The immunity issue depends on the type of visa they enter in on; an A visa would potentially grant immunity whereas a B visa would not.
7. Does the United States coordinate with the destination state’s government when we remove someone for their commission of human rights abuses?
DHS Answer: We do; sometimes the state is willing to prosecute the individual, sometimes not (e.g., there may be a general amnesty in place which is out of our hands).
8. Is the statute of limitations for visa fraud too short?
DHS Answer: Yes, it is 5 years for ordinary fraud and 10 years for other types of fraud involving passports. These start to run from the date of the offense, not the date of discovery. A longer statute of limitations for individuals who conceal their involvement in the persecution of others would be helpful since people can live discretely for years after entering the United States before they are discovered.