Prosecuting Genocide
A few years ago I was talking to a former high level official from the Clinton Administration about Pol Pot. Specifically we were discussing why he was never brought to trial for his crimes in the weeks before he committed suicide. The official told me that there was a real desire on the part of the Administration to bring Pol Pot to trial in the U.S. but that our criminal code was far too narrow to allow for a prosecution to occur. The official correctly noted that the law as it stood only allowed for the prosecution of individuals who have committed genocide within the U.S.
I have been working with the IL&J community to push for this gap to be plugged for a number of years. Additionally we have been pushing to amend the U.S. criminal code to ensure that all individuals who commit war crimes and crimes against humanity can be prosecuted in federal court. This type of complimentarity with international law and specifically the Rome Statute is important from a leadership perspective – it shows a commitment to core international legal norms.
The good news re: the prosecution of genocide is that the Senate passed a bill sponsored by Senator Durbin titled the Genocide Accountability Act of 2007. The bill seeks to ensure that the U.S. will be able to prosecute future Pol Pot’s. It has a companion version in the House, H.R. 2489, which seems to be stalled at the moment. I really hope we can get this bill passed ASAP – it is sponsored by Rep. Berman and Rep. Pence – and it just makes sense to get this done. This should be something both parties support 100% - let’s get this to the President for signature by the fall!
I’m not sure universal jurisdiction for war crimes is a great idea, writ large. For one thing, it’s not clear that criminal prosecution is the solution to war crimes. It is, after all, small consolation to the victims for whom it’s too late and the actual deterrent effect on potential war criminals of knowing they will be prosecuted is much debated. In fact, some argue that impending prosecution is likely to prolong conflict and inhibit negotiated peace. For an excellent illustration of universal jurisdiction run amok, simply look at Belgium’s recently repealed law on the subject (http://www.hrw.org/press/2003/08/belgium080103.htm).
The way the US has traditionally handled war criminals on our soil–at which point we have personal jurisdiction over the individuals, if not jurisdiction over their crimes committed abroad–is through immigration and extradition proceedings. The DOJ’s Office of Special Investigations operated from the early 80’s through 2000 or so to identify and either deport or extradite dozens of WWII war criminals living comfortably in the US. Whether those individuals were ultimately prosecuted for their crimes, or simply died in comfort on state pensions, depended on the politics of their home country. My research on this several years ago revealed that former communist states, like Lithuania, Latvia and Croatia, had a pretty lousy record of dealing out justice to octogenarian abusers, many of whom were treated like national heroes for having “resisted communism.” (http://hir.harvard.edu/articles/874/)
The point is simply that universal criminal jurisdiction for prosecuting war crimes is a tool, which means it could be a very good thing, or a very bad thing, depending on how it’s used. While I am certain I do not want such jurisdiction in the hands of this country’s harshest critics, including those in international organizations, I don’t think the solution is to take over the business of prosecuting international crimes ourselves. Like any time you deal with the tricky business of prosecutorial discretion, the real issue here is whether we trust the authorities to zealously pursue the right cases, even if they have all the legal backing they need.
Comment on July 23, 2007 @ 8:01 am
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I’m not sure universal jurisdiction for war crimes is a great idea, writ large. For one thing, it’s not clear that criminal prosecution is the solution to war crimes. It is, after all, small consolation to the victims for whom it’s too late and the actual deterrent effect on potential war criminals of knowing they will be prosecuted is much debated. In fact, some argue that impending prosecution is likely to prolong conflict and inhibit negotiated peace. For an excellent illustration of universal jurisdiction run amok, simply look at Belgium’s recently repealed law on the subject (http://www.hrw.org/press/2003/08/belgium080103.htm).
The way the US has traditionally handled war criminals on our soil–at which point we have personal jurisdiction over the individuals, if not jurisdiction over their crimes committed abroad–is through immigration and extradition proceedings. The DOJ’s Office of Special Investigations operated from the early 80’s through 2000 or so to identify and either deport or extradite dozens of WWII war criminals living comfortably in the US. Whether those individuals were ultimately prosecuted for their crimes, or simply died in comfort on state pensions, depended on the politics of their home country. My research on this several years ago revealed that former communist states, like Lithuania, Latvia and Croatia, had a pretty lousy record of dealing out justice to octogenarian abusers, many of whom were treated like national heroes for having “resisted communism.” (http://hir.harvard.edu/articles/874/)
The point is simply that universal criminal jurisdiction for prosecuting war crimes is a tool, which means it could be a very good thing, or a very bad thing, depending on how it’s used. While I am certain I do not want such jurisdiction in the hands of this country’s harshest critics, including those in international organizations, I don’t think the solution is to take over the business of prosecuting international crimes ourselves. Like any time you deal with the tricky business of prosecutorial discretion, the real issue here is whether we trust the authorities to zealously pursue the right cases, even if they have all the legal backing they need.
Comment on July 23, 2007 @ 8:03 am
My comment: http://blog.psaonline.org/2007/07/23/re-prosecuting-genocide/
Comment on July 23, 2007 @ 8:07 am
[...] 4. Prosecuting Genocide The good news re: the prosecution of genocide is that the Senate passed a bill sponsored by Senator Durbin titled the Genocide Accountability Act of 2007. The bill seeks to ensure that the U.S. will be able to prosecute future Pol Pot’s. It has a companion version in the House, H.R. 2489, which seems to be stalled at the moment. I really hope we can get this bill passed ASAP – it is sponsored by Rep. Berman and Rep. Pence – and it just makes sense to get this done. This should be something both parties support 100% - let’s get this to the President for signature by the fall! [...]
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