How to Get Away With Crimes Against Humanity: The US Statutory Gap

How do people get away with crimes against humanity? For some perpetrators, the best escape is to immigrate to the United States, where no law criminalizes these atrocities. Federal law grants a form of universal jurisdiction for war crimes and genocide based solely on an offender’s presence on U.S. territory – but not for crimes against humanity. Without universal jurisdiction over crimes against humanity, U.S. federal law provides no criminal remedy beyond extradition or prosecution for immigration fraud, if the individual lied on their immigration forms.

But lawmakers can close this statutory gap using the war crimes and genocide statutes as models of universal jurisdiction. Congress should reinitiate the effort, which failed in 2010, and pass a statute that criminalizes crimes against humanity, this time with universal jurisdiction. This would both empower U.S. prosecutors to bring alleged perpetrators to justice and guarantee the constitutional rights of Americans who may find themselves accused of crimes against humanity abroad.

An Inability to Prosecute Grave Crimes

While many specific acts that are considered crimes against humanity are illegal in the United States, such as murder, rape, or torture, the U.S. laws that punish such behavior lack universal jurisdiction, which limits their scope and application. Advocates and detractors generally define universal jurisdiction as empowering national courts to prosecute individuals regardless of considerations like sovereign immunity, where the crimes were committed, or the nationality of the individuals prosecuted. 

Crimes against humanity laws as typically enacted and interpreted around the world have no statute of limitations, respect no sovereign immunities that may otherwise shield State representatives, and offer universal jurisdiction. All of these features dramatically expand the possibilities for prosecution, limiting places for perpetrators to hide. Further, a U.S. crimes against humanity statute would protect Americans’ rights. Should an American be accused of crimes against humanity abroad, foreign governments or the International Criminal Court (ICC) are more likely to try the accused abroad due to the lack of a U.S. statute, but might be less likely to do so if the United States had a legal basis for prosecution. A trial outside the United States could deprive potential American defendants of their constitutional rights, including jury trial and a unanimous verdict in criminal cases.

It is difficult to determine how many atrocity perpetrators are living in the United States (in 2011 the Department of Homeland Security estimated almost 2,000, and more recent information appears unavailable), but a handful have come to national attention. Consider Moses Thomas, who slipped through the crimes against humanity gap in 2019. While working as a waiter in Philadelphia, Thomas was exposed for commanding a massacre of civilians in Liberia. But because Thomas committed the massacre in a foreign country against foreign nationals, the United States had no criminal jurisdiction. Some survivors of the massacre, who had since moved to the United States, could only file a civil suit against Thomas under the Torture Victim Protection Act and the Alien Torts Statute. They were victorious in court, but by that time Thomas had already returned to Liberia, where authorities have so far failed to prosecute him. If Thomas had been criminally prosecuted in the United States, he could have been arrested and placed in pretrial detention, thus eliminating his flight risk. However, because the United States lacks a crimes against humanity statute, Thomas could only be sued in civil court, enabling his escape. 

Notably, if Thomas had committed war crimes rather than crimes against humanity, he could be criminally prosecuted today. Because President Joe Biden signed the Justice for Victims of War Crimes Act in January of this year, federal prosecutors can now try any accused war criminal who sets foot in the United States, yet they have no power to prosecute those who commit crimes against humanity. Unlike war crimes laws, crimes against humanity laws include acts committed outside the context of armed conflict, and target more senior leaders who plan systematic attacks than war crimes laws do. 

Senators attempted and failed to pass a crimes against humanity statute in 2010, but today the possibility looks stronger than ever. The American Bar Association has urged Congress to act against perpetrators of crimes against humanity. It did so first in 2014, recommending that Congress pass legislation outlawing crimes against humanity. It did so again in 2021, when it suggested that Congress examine bringing atrocity crimes under federal jurisdiction when an alleged offender is present in the United States. Former U.S. Ambassadors-at-Large for War Crimes Issues David Scheffer and Stephen J. Rapp also support a crimes against humanity statute. Most of all, the bipartisan passage of the Justice for Victims of War Crimes Act shows that a bipartisan coalition is forming to bring war criminals to justice if they step foot on U.S. soil. The same logic should naturally apply to perpetrators of crimes against humanity.

The status quo in which combatants have greater protections than civilians makes little sense. Consider torture. Russians who torture Ukrainian soldiers today could be tried in the United States for war crimes should they set foot on U.S. soil thirty years from now, yet Russians who torture Ukrainian civilians could only be prosecuted for lying on their immigration paperwork.

Alleged U.S. Perpetrators Should Be Tried in the United States, Not Abroad

Skeptics argued that the Crimes Against Humanity Act of 2010 would have led to the prosecution of Americans, particularly for alleged criminal acts committed in the War on Terror. But it would be far better for these possible defendants to be tried in the U.S. justice system than in foreign courts.

Perhaps there is an American with a guilty conscience for having committed atrocities in Afghanistan. They may believe they are completely protected by Article 98 Agreements or the American Servicemembers’ Protection Act (ASPA). However, they should exercise care when traveling abroad, as their legal protections are incomplete beyond U.S. jurisdiction. 

Article 98 agreements offer some protection: through these agreements, over 100 foreign countries agree not to extradite Americans to the ICC. But these agreements are not ideal. They undermine the ICC at a time when the Biden administration is trying to support ICC investigations of Russian war crimes, and they cannot provide complete protection unless every government in the world signs an agreement with the United States, which would come with inherent diplomatic costs.

ASPA (also known as “The Hague Invasion Act”) was meant to prevent ICC prosecutions of U.S. military servicemembers and State officials. It grants the President the authority to use “any means necessary and appropriate to bring about the release of any person . . . who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” The law applies to “members of the Armed Forces of the United States, elected or appointed officials of the United States Government, and other persons employed by or working on behalf of the United States Government.” It also forbids U.S. courts and other institutions from cooperating with the ICC. 

But ASPA is a reactive and costly solution to a dangerous dilemma. The harsh diplomatic reaction to former President Donald Trump’s confrontation with the ICC over the Afghanistan investigation shows that U.S. allies are unlikely to support the U.S. in a conflict with the ICC. After Trump revoked former ICC Prosecutor Fatou Bensouda’s visa in 2019 and imposed sanctions on the ICC in 2020, 67 countries (including many U.S. allies) signed a statement condemning the U.S. actions. In view of these diplomatic costs, the president may choose not to use “any means necessary,” fearing the harsh international consequences that would follow. Congress would be wise to act now to avoid the possibility entirely.

A crimes against humanity statute would offer prevention. Adhering to the complementarity principle under Article 17 of the Rome Statute, the ICC will not replace national courts unless absolutely necessary, when the State with jurisdiction is “unwilling or unable” to act in a genuine manner. The ICC will only try individuals who have not been tried or whose proceedings were “inconsistent with an intent to bring the person concerned to justice.” A crimes against humanity statute could prevent ICC investigations and prosecutions entirely by showing that federal courts are willing and able to prosecute the crimes.

International diplomacy aside, those who may be potential defendants under this statute should favor its passage to guarantee their constitutional rights. The ICC offers no right to a jury and does not require unanimous verdicts, convicting with only two out of three judges. Since most potential U.S. defendants would rather appear before a jury than an international tribunal that will not guarantee them all of their rights under the constitution, a crimes against humanity statute is indeed their friend. While the odds of such prosecutions are slim, the current ICC investigation in Afghanistan creates a possibility of an American being prosecuted. A statute that closes the crimes against humanity gap would eliminate the threat of ICC prosecution based on a State’s inability to prosecute. Instead, it forces ICC prosecutors to show that the United States is unwilling to prosecute its offenders under the statute. 

What Should the Crimes Against Humanity Act Look Like?

Congress would be wise to seek inspiration from the Crimes Against Humanity Initiative or Article 7 of the Rome Statute. Unlike the failed 2010 bill, Congress should not limit jurisdiction to residents or nationals of the United States or to crimes committed within U.S. territory. Instead, lawmakers should create the same jurisdiction that exists in the U.S. war crimes and genocide statutes, empowering prosecutors to act against perpetrators who are physically present in the United States.

This law would close a glaring loophole and prevent further miscarriages of justice as in the case of Moses Thomas. Without action, Congress risks perpetuating a bizarre scenario in which federal prosecutors can try those who commit crimes against combatants, but not those who brutalize civilians. A crimes against humanity statute furthers U.S. legislative priorities from the Justice for Victims of War Crimes Act. It strengthens the international moral position of the United States. And it amplifies U.S. legal power abroad: offensively, by empowering American prosecutors to try any perpetrators on U.S. soil, and defensively, by preempting ICC prosecutions of Americans, who will fall under the U.S. legal system.

IMAGE: Eli Rosenbaum, director of the Human Rights Enforcement Strategy and Policy and counselor for War Crimes Accountability at the U.S. Department of Justice, testified about Russia’s full-scale invasion of Ukraine during a Senate Judiciary Committee hearing in Washington, D.C. on Sept. 28, 2022. (Photo by SAUL LOEB/AFP via Getty Images)
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