U.S. Jurisdiction over Genocide, Human Trafficking, and Child Soldiers

by Kevin Jon Heller

According to the Department of Homeland Security, more than 1,000 individuals who have committed war crimes, crimes against humanity, and genocide currently live in the United States free from the threat of prosecution. Senator Dick Durbin (D-IL) wants that to change:

America has become a haven for the world’s war criminals because it lacks the laws needed to prosecute them, Sen. Richard Durbin… said Wednesday. There’s been only one U.S. indictment of someone suspected of a serious human-rights abuse. Durbin said torture was the only serious human-rights violation that was a crime under American law when committed outside the United States by a non-American national.

“This is unacceptable. Our laws must change and our determination to end this shameful situation must become a priority,” Durbin, the chairman of the Senate Judiciary Committee’s Subcommittee on Human Rights and the Law, said at a hearing of the subcommittee Wednesday.

Senator Durbin is putting his money where his mouth is. He and Senator Tom Coburn (R-OK) — strange bedfellows indeed — have introduced bills that would give U.S. courts conditional universal jurisdiction over genocide, human trafficking, and the recruitment of child soldiers. The Genocide Accountability Act of 2007, S. 888, has passed the Senate; its counterpart, HR. 2489, has been introduced in the House. The Trafficking in Persons Accountability Act of 2007, S. 1703, and Child Soldiers Accountability Act of 2007, S. 2135, are currently pending in the Senate.

Kudos to Senators Durbin and Coburn!


4 Responses

  1. Fascinating. Is the use of child soldiers a universal jurisdiction offense under international law? The relevant treaties don’t seem to say anything about it (unlike the torture, genocide, etc. conventions) and I know of no supporting state practice. Am I missing something, or is this American exceptionalism again?

  2. States are obviously not required to exercise universal jurisdiction over the war crime of recruiting child soldiers, because it is not a grave breach of the Geneva Conventions. But the modern position seems to be that states are permitted to exercise universal jurisdiction over all war crimes, even those committed in non-international armed conflict. See Amnesty International’s discussion here.

  3. Thanks. Amnesty does say that UJ applies to all war crimes, and indeed, to my surprise, says it applies to breaches of purely national crimes! (“States may exercise universal jurisdiction over ordinary crimes under national law.”)

    Again, I didn’t see any evidence for this, and it seems very hard to reconcile with the “grave breaches” regime.

    Still, elsewhere (first paragraph) it suggests war crimes mentioned in the Geneva Convention are only UJ when they are grave breaches or when there is custom. But maybe I missed something; I skimmed it very quickly, as I’m finishing tonight a draft of an article on UJ under the Constitution’s “Define and Punish” clause; this post was quite timely.

  4. Here is the relevant passage from the Amnesty International report:

    A wide range of violations of international humanitarian law committed during non-international armed conflict are now widely recognized as war crimes and, therefore, are, like other war crimes, subject to universal jurisdiction.

    As recently as 1994, some observers doubted that international law imposed individual criminal responsibility for violations of international humanitarian law during non-international armed conflict.(54) In a remarkable shift, however, which came with the establishment of the Yugoslavia and Rwanda Tribunals and the adoption of the Rome Statute, it has now been generally recognized that violations of international humanitarian law during international armed conflict are war crimes entailing individual criminal responsibility.(55) As documented in Section II of Chapter Four, states have enacted legislation permitting their courts to try persons for war crimes in non-international armed conflicts and their courts have done so.

    Permissive universal jurisdiction. One of the consequences of the recognition that violations of international humanitarian law in non-international armed conflicts are war crimes is that, like any other war crime, they are subject to universal jurisdiction.(56) Leading scholars in the field have concluded that war crimes during non-international armed conflict are subject to universal jurisdiction. For example, Theodor Meron, who was a member of the United States government delegation at the Rome Diplomatic Conference, concluded in 1995:

    “Many serious violations of common Article 3 and Geneva Protocol II, as well as other significant norms of the Geneva Conventions, though not explicitly listed as grave breaches, are of universal concern and subject to universal condemnation. These are crimes jure gentium [under the law of nations] and therefore all states have the right to try the perpetrators. This right can be seen as an analogue, mutatis mutandis, of the prerogative of all states to invoke obligations erga omnes against states that violate the basic rights of the human person.”(57)

    These views were confirmed in 1995, when the Security Council urged states to exercise universal jurisdiction over violations of international humanitarian law during non-international armed conflict over which the Rwanda Tribunal had jurisdiction. In Resolution 978, it

    “[u]rges states to arrest and detain, in accordance with their national law and relevant standards of international law, pending prosecution by the International Tribunal for Rwanda or by the appropriate national authorities, persons found within their territory against whom there is sufficient evidence that they were responsible for acts within the jurisdiction of the International Tribunal for Rwanda.”(58)

    Trial Chamber 1 of the Rwanda Tribunal in 1999 called upon all states to exercise universal jurisdiction over grave violations of international humanitarian law within its jurisdiction, which include war crimes in non-international armed conflict.(59)

    The Security Council also called upon all parties to the conflict in the Democratic Republic of the Congo, which has both international and non-international dimensions, to bring those responsible for war crimes to justice.(60) As documented in Section II of Chapter Four, states have enacted legislation providing for universal jurisdiction over crimes in non-international armed conflict and have conducted criminal investigations and prosecutions for such crimes.

    In 1996, the International Law Commission provided in Article 9 of the Draft Code of Crimes that there would be universal jurisdiction over certain war crimes in non-international armed conflict, in particular, violations of common Article 3 of the Geneva Conventions, as identified in Article 20 (f).(61) In July 2000, the International Law Association endorsed the conclusion of its Committee on Human Rights Law and Practice that “[g]ross human rights offences in respect of which states are entitled under international customary law to exercise universal jurisdiction include . . . war crimes [as defined in Article 8 of the Rome Statute].”(62)

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