Shield America from crimes against humanity

Heinous terrorist attacks can be viewed, as President Obama described the Paris attacks, as “an attack on all of humanity and the universal values that we share.”   Those words also aptly describe the mega horror known as “crimes against humanity,” which can include terrorist attacks.  Oddly, the United States remains dangerously exposed to the masterminds of crimes against humanity, which are large-scale assaults on civilian populations, because unlike terrorism this category of international crimes is surprisingly absent from the federal criminal code. 

Crimes against humanity have plagued humankind throughout history but evolved in law steadily over the last hundred years to become one of the dominant atrocity crimes of our time.  The Nuremberg Military Tribunal after World War II defined the cluster of crimes against humanity that Nazi leaders were prosecuted for and those trials gave impetus to codifying perhaps the worst manifestation of such crimes, genocide, a few years later in the Genocide Convention.

{mosads}In short, a crime against humanity is a widespread or systematic assault on a civilian population that unleashes such horrors as national, political, ethnic, racial, or religious cleansing as experienced in the Balkans 20 years ago and in Darfur and Syria today.  Such crimes also include mass rape, enslavement, extermination, and enforced disappearances.  

The United States remains a sanctuary for war criminals drawn from the so-called Islamic State or ISIS, Boko Haram, and repressive governments intent on decimating their civilian opponents with crimes against humanity.  There are no clear-cut ways to prosecute such individuals if they land on American territory because their crimes occurred overseas and are neither explicitly defined in federal law nor articulated on immigration forms that require truthful statements.   Counterterrorism statutes help, but not enough.

No one should be surprised if in the future veterans of ISIS operations conducted anywhere else in the world slip by U.S. immigration with ease and live happily in Florida immune from any prosecution for crimes against humanity or even deportation because the immigration forms they signed bizarrely omit any question about having committed crimes against humanity.  Though a war criminal likely would deny having participated in ethnic cleansing in a distant land even if asked by immigration authorities, he should be open to fraud charges if his real identity is later revealed. 

Prosecutors are stymied from bringing those who commit crimes against humanity to justice because the law remains so vague and ignores aliens who commit such crimes overseas and then reside in the United States.

This absurd situation need not exist.  Most of America’s staunchest allies in the fight against international terrorism and ISIS have incorporated crimes against humanity into their domestic criminal law. 

If anyone with the blood of crimes against humanity on his or her hands decides to enjoy the privilege of residing in the United States, that individual must be targeted for investigation and prosecution in a federal court or deportation to a country that will prosecute the crime.  American security and international justice demand no less as crimes against humanity proliferate on several continents.   

Congress joined ranks in recent years on other atrocity crimes to signal to the world that the United States is no sanctuary for war criminals.  The crimes of genocide, torture, human trafficking, and recruitment or use of child soldiers are “no-sanctuary” laws that send a strong message: “Don’t even think of entering the United States.”

To exclude crimes against humanity in the face of an ever-expanding reach of ISIS violence and the stealth recruitment of thousands of Syrians, Europeans, and even American citizens into ISIS ranks would be the height of folly.  Some of them doubtless will seek to enter the United States, either to further commit crimes against humanity or to seek refuge from the reach of other national or international courts.  That door must be slammed shut.

I chair an American Bar Association working group to facilitate consideration of appropriate bi-partisan legislation.  I have found a shared logic on Capitol Hill that the United States must not be a sanctuary for perpetrators of crimes against humanity.   National security interests and our shared commitment to the rule of law demand no less.

Federal law must be modernized to enable law enforcement authorities to more easily extradite the architects of crimes against humanity to foreign courts or, failing that, the option to bring them to justice in federal courts and thus deter such despicable individuals from achieving sanctuary in America.                                                        

Scheffer is a law professor at Northwestern Pritzker School of Law and former U.S. Ambassador at Large for War Crimes Issues (1997-2001).                  


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