19 Nov U.S. Jurisdiction over Genocide, Human Trafficking, and Child Soldiers
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!
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?
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.
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.
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,… Read more »