Should the U.S. Enact Laws Punishing Crimes Against Humanity? Sure, But It Still Won’t Save Darfur

It seems like a no brainer that the U.S. should enact into domestic law punishments for “crimes against humanity.” The recently created subcommittee on Human Rights and the Law of the U.S. Senate Judiciary Committee held a hearing yesterday to hear one-sided testimony on this question.



And really, is there any objection to enacting a statute making a crime under U.S. law to commit a crime against humanity? It goes without saying that such a criminal statute, to be truly useful, would require the U.S. to assert some pretty expansive theories of jurisdiction, maybe even universal jurisdiction. (The recent amendments to the statute punishing genocide have arguably done that). But this is probably not a real objection. If any crime supports the assertion of universal jurisdiction, I would think “crimes against humanity” would suffice.



As some of the testimony at the hearing suggested, the practical need for such a law is driven by the difficulty in proving the crime of genocide, especially the specific intent component of genocide (See Prof. Diane Orentlicher’s testimony here for this argument).



Interestingly, none of the testimony (as far as I know) pointed out that while there is no criminal punishment in U.S. law for crimes against humanity, there is a civil sanction: a civil lawsuit under the Alien Tort Statute. As a longstanding critic of the ATS, I would prefer the criminal punishment, of course, but given the higher standards of proof required for a criminal prosecution, I don’t really buy the claim that folks committing crimes against humanity can wander the U.S. in impunity. In other words, I highly doubt there will be any additional deterrence effect created by adding a criminal sanction to the civil sanction. To some degree, therefore, this whole hearing was grandstanding by the Senators so they could tell themselves that they are doing something about Darfur (when in fact they are pretty much doing nothing to help prevent further deaths in Sudan).



Still, I have to applaud the Senate’s interest and the signs of congressional leadership on the incorporation of international law norms into U.S. law. Congress, I have argued elsewhere, is the proper institution for incorporating such norms (and not the courts) so it is nice to see Congress stepping up to its responsibilities here to develop international law, even if they aren’t doing much at this point to protect international human rights in Sudan.