(Editor’s Note: This article is part of a series on a proposed Convention on the Prevention and Punishment of Crimes Against Humanity, due to be considered in discussions that resume on Oct. 13 in the Sixth Committee, the U.N. General Assembly’s primary forum for discussion of legal questions.)
A record 82.4 million people are forcibly displaced around the world, either across international frontiers or within their own countries. Most of these millions of men, women, and children have fled hearth and home to escape conflicts where civilians are in great danger of becoming victims of atrocity crimes under international law. These are largely situations in which the perpetrators face no prospect of genuine accountability within the country where they committed their crimes, and trials most often are not possible at the international level because the country in question is not a member of the International Criminal Court (ICC) or because of blockages within the U.N. Security Council. So how can the international community raise the risks of prosecution for the perpetrators of some of the worst atrocity crimes of the 21st century committed in Syria, South Sudan, North Korea, Yemen, Ethiopia, and Myanmar (except where the ICC has jurisdiction over forced deportation into Bangladesh)?
The answer is the exercise of extraterritorial jurisdiction by third States. This may be surprising to those who remember the U.S. opposition to extraterritorial investigations by Belgian prosecutors and Spanish magistrates of American personnel involved in post-9/11 abusive interrogations that led those States to make their laws more restrictive. However, the absence of alternatives has generated wider acceptance of extraterritorial prosecutions when the prosecuting State has been impacted by the crimes. This certainly includes the exercise of “passive personality” jurisdiction, when a national or dual national of the prosecuting State is a victim, and the exercise of “universal” jurisdiction, when a perpetrator is present in the prosecuting State and using it as a “safe haven.”
But this acceptance also has extended to situations in which a flight of refugees escaping atrocity crimes has had a demonstrable impact on the prosecuting State’s resources and other legitimate interests. For instance, German law allows the prosecution of atrocity crimes without regard to a perpetrator’s presence or a citizen’s status as a victim. Such a case depends on the federal prosecutor’s discretion, which may involve a consideration of multiple factors relating to whether a German forum is appropriate, including the availability of witnesses in Germany. Such witnesses are likely to be present if hundreds of thousands of persons from a situation country (as in the case of Syria) have been admitted as refugees.
The German federal prosecutor exercised universal jurisdiction to open a structural investigation of the Syrian regime for crimes against humanity that eventually resulted in the arrest and trial of Anwar Raslan and Eyad Al-Gharib in Koblenz, Germany, on charges of torture and murder as crimes against humanity, based on their actions at the Al-Khatib detention center in Damascus. They were found in Germany and so their prosecution could be seen as resting on the traditional “impact” of physical presence of the perpetrator in the prosecuting State. However, the Germans also obtained an arrest warrant against General Jamil Hassan, the powerful head of Syrian Air Force Intelligence, for crimes against humanity committed against Syrians in a detention center at Al-Mezzah Air Force base in Damascus. Despite there being no direct tie between Jamil Hassan and Germany, the Trump administration called on Lebanese authorities to extradite Hassan to Germany when he was in Beirut for medical treatment (see our earlier analysis here).
A number of cases are going forward in Europe on terrorism charges. This may reflect less inhibition on exercising universal jurisdiction over persons alleged to have provided material support to terrorist organizations. For example, U.S. law allows terrorism prosecutions if the suspect “is brought into … the United States, even if the conduct required for the offense occurs outside the United States.” Prosecutorial authorities can, and should, pursue more comprehensive charges against such persons for the perpetration of atrocity crimes if they have local witnesses. As an example, Germany is now trying a former ISIS member in Frankfurt for committing genocide through sexual violence against female Yezidis in Iraq and Syria – a case well-connected to Germany because it has welcomed 1,100 Yezidi women and girl survivors of ISIS’ crimes.
However, except in Germany and a handful of other States, statutory frameworks do not enable prosecutors to pursue the most impactful cases. When it comes to jurisdiction, national laws are a hodgepodge, with most not allowing for the prosecution of individuals accused of some of the most serious crimes over which the States would wish to exercise jurisdiction. In the United States, almost all prosecutions of persons alleged to have committed atrocity crimes abroad are based on false statements made during immigration proceedings. There are several U.S. statutes that would permit prosecutions for the actual commission of atrocities, but these have inconsistent jurisdictional bases. For instance, current U.S. law permits prosecution for genocide or torture committed abroad against noncitizens when the alleged perpetrator is present in the United States, but not when a U.S. citizen is a victim of these crimes committed abroad and the perpetrator is not present in the United States. Conversely, U.S. law allows for prosecution when a U.S. citizen is the victim of a war crime committed abroad, but not when the perpetrator committed a war crime against non-U.S. citizens, even if that perpetrator is present on U.S. territory.
The easy answer is statutory amendments permitting prosecutions when there is a citizen-victim or the alleged perpetrator is present in the prosecuting State. More ideally, U.S. law should provide for exercise of universal jurisdiction coupled with a high-level process, as in Germany, for approving cases where the crimes have had an impact on US interests and no international tribunal or other State has undertaken genuine investigations.
There is an equal need for changes to substantive law at the national level. At present, the criminal codes of the United States and several other countries do not penalize crimes against humanity, thus preventing the prosecution of perpetrators for what is often their worst criminal conduct. The proposed international Convention on the Prevention and Punishment of Crimes Against Humanity will help fill this gap, because it would require States to prohibit these crimes domestically and provide the tools for international cooperation that would be of particular benefit for third-country prosecutors. Even if it will take time for the convention to be ratified and to enter into force, this initiative brings attention now to the lacuna in national laws and should encourage countries like the United States to take legislative action.
While current U.S. law permits prosecutions for genocide and war crimes if a suspect is present in the United States, these crimes do not include some of the world’s worst atrocities. To charge someone with genocide, there are exacting requirements for proving this “crime of crimes” and for convicting perpetrators, particularly as to the specific intent to destroy “in whole or in substantial part” a “national, ethnical, racial or religious group as such.” Many of history’s greatest crimes were committed by regimes against perceived political opponents and thus would not qualify as genocide.
Specific Intent and Political Persecution
To hold the perpetrators of major atrocities to account, it is necessary to be able to prosecute crimes against humanity, which are acts of violence committed as part of a widespread or systematic attack against a civilian population. The specific offense of “persecution as a crime against humanity” additionally requires that the attack be committed on “national, political, ethnic, racial or religious grounds.” It thus includes atrocities that are the equivalent of genocide without the requirement of specific intent, as well as attacks against political groups. This concept covers all of history’s worst atrocities, and provides the same kind of acknowledgement that victims seek in the legal recognition of a genocide.
When the victims are not members of a recognized group for the crime of genocide, the persecution offense is also highly useful, as we learned at the International Criminal Tribunal for Rwanda in the Media trial. In that case, my colleagues and I there prosecuted those who delivered the messages that led to mass killing, not only as “direct and public incitement to genocide” but also as “persecution as a crime against humanity.” Thus were we able to cover the vicious broadcasts by Hutu extremists that did not incite the killing of Tutsis but instead the killing of Hutus who were politically allied with Tutsis.
Similarly, not all atrocities can be characterized as war crimes. Post-election violence, the mass killing of peaceful protestors, enforced disappearances, torture, and murder in detention often occur in the absence of an armed conflict, international or non-international. Even when there is an ongoing conflict, the killing of civilians far from the front can be hard to tie to the hostilities, as we discovered in an early prosecution at the Rwanda tribunal, when the trial judges convicted the accused person for genocide but acquitted him for war crimes because the civilians were killed far from the Rwandan civil war’s battlefield.
Unused US Genocide and War Crimes Acts
The U.S. Genocide Act and U.S. War Crimes Act have never been used. Even in the prosecution of the so-called “Beatles,” British ISIS members Alexanda Kotey and El Shafee Elsheikh, for the kidnapping and killing in Syria of Americans James Foley, Steven Sotloff, Kayla Mueller, and Peter Kassig, the U.S. Attorney has not indicted the suspects for genocide or war crimes. The indictment does include hostage-taking and homicide counts in addition to charges for the provision of material support to a terrorist organization. The case is so well-founded that defendant Kotey has already pleaded guilty to every count in the indictment. No doubt it would be more challenging to prove that their acts contributed to the genocide of the Yezidi or to show the required nexus to an armed conflict. But, if there were a U.S. Crimes Against Humanity Act, this would be a strong case for conviction of murder, imprisonment, torture, inhuman acts, and persecution as crimes against humanity. It would also contribute to strengthening global accountability for atrocity crimes.
The omission of atrocity crimes from the “Beatles” case is far from exceptional. Aside from a handful of cases in Europe, all of the prosecutions of members of ISIS, despite their involvement in genocide and massive religious persecution, are for providing “material support to a terrorist organization.” Prosecutors like that charge because membership in a designated terrorist group is easier to establish than proving a defendant’s actual conduct. But that also leaves room for the defendants and their followers to see those on trial as martyrs who have been charged for their beliefs, rather than as cruel and sadistic perpetrators of horrific violence upon children and other helpless and innocent victims. And in most European courts, those who are convicted of ISIS membership receive short sentences, resulting in a political unwillingness by governments to repatriate their own nationals for such trials.
The answer to these situations of incomplete accountability is to fully enact international criminal law at the national level and to provide for its maximum reach. In an age of mounting atrocities while other pathways to accountability are blocked, domestic courts are now often the only way to achieve justice for the victims of the worst crimes known to humankind.