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From Nuremberg to Darfur: Accountability for Crimes Against Humanity

Testimony of Elise Keppler, International Justice Program senior counsel, before the Senate Judiciary Subcommittee on Human Rights and the Law

Human Rights Watch appreciates the invitation to submit a statement for the record on this important subject. Justice for serious crimes under international law – which include genocide, crimes against humanity, war crimes and torture – is crucial. Accountability brings redress to the victims and signals that heinous abuses will not be tolerated.

Since its creation, this subcommittee has taken important steps to combat impunity for serious crimes. This includes the subcommittee’s hearing last November on avoiding safe haven for perpetrators of human rights violations in the United States. We further welcome that members of this subcommittee have proposed bills to ensure justice for these crimes, such as the Genocide Accountability Act of 2007.

While federal law currently makes it a crime to commit genocide, war crimes, and torture, as discussed below, crimes against humanity are not expressly criminalized. We believe it is vital that members of this subcommittee take up efforts to pass legislation to close this loophole and also to ensure that the Departments of Justice and Homeland Security have adequate resources and capacity to investigate and prosecute crimes against humanity when they have been committed.

The need to criminalize crimes against humanity in the United States

Major international law commentaries explain that crimes against humanity are crimes – which either by their seriousness and savagery, or by their magnitude, or because they were part of a system intended to spread terror – shock the conscience of humanity. Crimes against humanity have been defined under international law as unlawful acts committed as part of a widespread or systematic attack against a civilian population. The acts that constitute crimes against humanity include murder, extermination, enslavement, deportation, arbitrary detention, torture, rape, persecution on political, racial and religious grounds, and other inhumane acts.

International and hybrid international-national criminal tribunals, including those supported by the United States – such as the International Criminal Tribunals for the Former Yugoslavia and Rwanda – prosecute crimes against humanity. Nevertheless, such courts cannot be depended on to address impunity in every situation: they have limited resources and mandates restricted to specific periods and conflicts. At the same time, national courts in the places where heinous abuses are committed are often unable or unwilling to prosecute.

It is thus vital that the United States is prepared to prosecute crimes against humanity. We believe this requires new legislation. Some might ask whether this is really necessary as many of the underlying offenses are already crimes in the United States. However, existing law is unlikely to have the appropriate jurisdictional reach to ensure the United States does not operate as a safe haven for perpetrators from abroad. It also does not reflect the breadth and gravity of the underlying offenses when they are committed as part of a widespread or systematic attack against a civilian population. Moreover, the underlying offenses may be subject to statutes of limitations, which should not apply when it comes to international crimes.

With regard to the jurisdictional reach, it is crucial that crimes against humanity be prosecutable regardless of where the crime was committed and whether the crimes were allegedly committed by a US national. This is an important component to existing federal law on other serious crimes, such as torture and genocide. Specifically, these laws – thanks in part to amendments to the crime of genocide proposed by members of this subcommittee – make the crimes punishable regardless of the nationality of the offender or the victim and the location of the crime, as long as the alleged offender is present in the United States.

Another important issue is the elements of the crime. In this area, the international criminal tribunals for the former Yugoslavia and Rwanda have developed extensive experience in the prosecution of crimes against humanity and have made a unique contribution to the development of international law in this field. The elements of crimes against humanity in any US legislation should thus reflect the jurisprudence of the international tribunals. It may also be valuable to draw from the definition of crimes against humanity under the Rome Statute of the International Criminal Court, which provides an up to date articulation of the crime under international law.

We would like to highlight that the jurisprudence of the tribunals is furthermore clear that crimes against humanity occur when the crimes are either widespread or systematic, and that it is not necessary that both elements exist together. Widespread connotes the scale on which the conduct is carried out, while systematic relates to the level of planning or organization. Systematic has been defined by the tribunals as thoroughly organized and following a regular pattern on the basis of a common policy. While a systematic attack will generally involve large-scale offenses, this is not required. Nevertheless, prosecuting the underlying offenses where they are of a gravity reflected by their commission in an organized nature is vital. Systematic is not envisioned to apply to ordinary domestic crimes.

Another important element to crimes against humanity is recognition that criminal liability can exist on the basis of what is known as command responsibility. This arises when leaders – those in positions of command – knew or should have known about the commission of serious crimes. This basis of liability has been integral to successful cases in international criminal tribunals against leaders who bear responsibility for the crimes but are often physically far removed from the scenes of crimes. Human Rights Watch believes that individuals can already be prosecuted in the United States on the basis of command responsibility: the basis of liability is expressly recognized in the US military code, has been upheld by the US Supreme Court in cases brought after World War II, and has been recognized in several civil cases in federal courts involving human rights violations. Nevertheless, we believe that prosecutors may benefit from an explicit and direct recognition of this basis of criminal liability for human rights violations. Illustrative of how important it is to ensure that there is a clear legal basis for a perpetrator to be held liable on the basis of command responsibility is a recent decision of the International Criminal Tribunal for Rwanda which refused to transfer a war crimes case to Rwanda, as there was no explicit basis for command responsibility liability in Rwandan law.

Ensuring laws on serious crimes are applied

While making crimes against humanity punishable in the United States is an essential first step, ultimately the key is whether the law will be applied. In this regard, we welcome the Department of Justice’s first ever case under the extraterritorial torture statute that was initiated on December 6, 2006 against Charles “Chuckie” Taylor, Jr., the son of the former Liberian president Charles Taylor. The charges relate to Taylor, Jr.’s role in allegedly committing torture while head of a security unit under his father’s presidency in Liberia. Notably, the torture law had been in effect for more than ten years before the first case under it was brought. Similarly, prosecutions have not to our knowledge been initiated for genocide or war crimes.

In recent years, the Departments of Justice and Homeland Security have taken important steps to enhance efforts to prosecute human rights violations committed abroad. Such steps include the creation of an ad hoc interagency working group to increase coordination among the many agencies involved in avoiding safe haven for human rights violators in the United States. The Department of Justice also has a section, the Domestic Security Section, which focuses on investigating and prosecuting human rights violations committed abroad. Designating primary responsibility for such cases within one section is especially valuable. Research by Human Rights Watch on Western European practice suggests that concentration of relevant expertise in specialized units is one of the most important elements in the successful prosecution of these cases.

Given such efforts, it is in some respects surprising that there has been only a single US prosecution for torture committed abroad. According to US authorities, a number of investigations have been initiated and while criminal charges were not brought, immigration charges were made. The dearth of cases is due at least in part to the significant challenges of investigation and prosecution of these types of crimes. Analysis of similar cases in Western Europe by Human Rights Watch suggests that such cases involve major difficulties caused by a combination of factors, including: language barriers; complex and unfamiliar political and historical contexts; the need for evidence that is tough to track down and to obtain access to; the importance of conducting extraterritorial investigations to identify evidence and witnesses; the need to ensure that witnesses who may face serious threats if they become involved in a prosecution are protected; and having to prove crimes that may never have been previously adjudicated.

A number of the challenges to prosecuting human rights violations committed abroad have been expressly acknowledged by US officials. How best to overcome them, however, needs increased attention. One obvious critical element is political will to ensure adequate resources to conduct effective investigations where the complexities described above exist. Support also is needed to facilitate exchange of information and best practices with practitioners in other countries.

Congress is well placed to intensify scrutiny of the challenges and to strengthen law and practice to surmount them. This is essential if perpetrators of heinous abuses are to be held to account and if the case against Chuckie Taylor is to be more than an anomaly in US practice. We look forward to further efforts by this subcommittee to ensure that crimes against humanity constitute an offense in the United States and that the necessary capacity exists to ensure prosecutions of this terrible crime.

Thank you.

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