David Scheffer

November 14, 2007

GAPS IN U.S. LAW PERTAINING TO ATROCITY CRIMES
Testimony of
David Scheffer
Mayer Brown/Robert A. Helman Professor of Law
Northwestern University School of Law
Chicago, Illinois
Before the
SUBCOMITTEE ON HUMAN RIGHTS AND THE LAW
COMMITTEE ON THE JUDICARY
UNITED STATES SENATE

No Safe Haven: Accountability for Human Rights Violators in the United States

November 14, 2007

I wish to thank Chairman Richard Durbin, Ranking Member Tom Coburn, and all Members of the Subcommittee on Human Rights and the Law of the Committee on the Judiciary of the U.S. Senate for this opportunity to present testimony in connection with the Subcommittee?s hearing on November 14, 2007, entitled, No Safe Haven: Accountability for Human Rights Violators in the United States. I teach international criminal law and international human rights law at Northwestern University School of Law, where I also direct the Center for International Human Rights. I am a former U.S. Ambassador at Large for War Crimes Issues (1997-2001).

My testimony focuses on the gaps in U.S. federal law that currently prevent the prosecution of various types of cases pertaining to three categories of crimes: genocide, crimes against humanity (which includes torture and, as a crime of persecution, ethnic cleansing), and war crimes (which also includes torture). I have long described these three major categories as ?atrocity crimes? for ease of reference and to more accurately convey and emphasize the jurisprudential development of such crimes in the international and hybrid criminal tribunals since 1993. I will not address human rights violations that do not rise to the level of magnitude and criminality found in the atrocity crimes or the gaps that may exist under U.S. federal law with respect to other violations of international human rights law. The latter would be a very extensive undertaking beyond the scope of my testimony. There is now a rich and continuing line of civil cases under the Alien Tort Statute (ATS) of 1789, a truly unique American law, dealing with various human rights violations and seeking civil damages only, and the Torture Victim Prevention Act of 1991 (TVPA), which again only permits civil damages with respect to acts of torture. I will not address ATS or TVPA litigation in this testimony; here I focus exclusively on criminal law and military law and how to ensure that U.S. law sufficiently empowers U.S. courts with appropriate jurisdiction to investigate and judge the culpability of alleged perpetrators of atrocity crimes.

Summary of Recommendations
1) The United States must eliminate any possibility that it would remain a safe haven for war criminals and atrocity lords who reach American shores and seek to avoid accountability for genocide, crimes against humanity, or war crimes (?atrocity crimes?). The United States must further demonstrate its willingness to hold its own citizens accountable for atrocity crimes as a commitment to the rule of law and to America?s rejection of impunity for such crimes regardless of who may be investigated at any level of civilian control or military command.
2) Enact the Genocide Accountability Act of 2007, the Child Soldiers Accountability Act of 2007, and the Trafficking in Persons Accountability Act of 2007 so that key gaps in federal law are filled.
3) Apply consistent rules of jurisdiction in the coverage of atrocity crimes in the federal criminal code, including application to all U.S. citizens, U.S. Government employees and contractors, and to all aliens present on U.S. territory for the commission of atrocity crimes anywhere in the world.
4) Eliminate from U.S. law all statutes of limitations for atrocity crimes.
5) Amend the federal criminal code, Title 18 of the U.S. Code, so that it enables U.S. courts to prosecute crimes against humanity and war crimes that are already codified in the statutes of the international and hybrid criminal tribunals and are defined as part of customary international law.
6) Amend the Uniform Code of Military Justice, Title 10 of the U.S. Code, so that U.S. courts-martial and military commissions can more effectively and unambiguously prosecute crimes against humanity and war crimes that are already codified in the statutes of the international and hybrid criminal tribunals and defined as part of customary international law.
7) Recognize that until such amendments to Titles 10 and 18 of the U.S. Code are enacted, the United States has an antiquated criminal code and military code. Further recognize that the United States stands at a comparative disadvantage with many of its major allies which have modernized their national criminal codes in recent years with incorporation of the atrocity crimes, in part so as to shield their nationals from investigation and prosecution by the International Criminal Court by demonstrating national ability to prosecute such crimes and thus invoke the Court?s principle of complementarity. Paradoxically, even as a non-party to the Rome Statute of the International Criminal Court, the United States today essentially stands more exposed to its jurisdiction than do American allies which have modernized their criminal codes.

Introduction

In general, U.S. federal criminal law and military law have become comparatively antiquated during the last 15 years in their respective coverage of atrocity crimes as international criminal law has evolved significantly during that period. The prospects of U.S. courts exercising jurisdiction (subject matter, territorial, personal, passive, or protective jurisdiction) over atrocity crimes under current law remain relatively poor and U.S. attorneys, in even the best of jurisdictional circumstances, appear not to have pursued the types of investigations and possible prosecutions one might expect if there were an aggressive commitment to bringing perpetrators of atrocity crimes to justice and the law provided a clearer basis for such prosecutions. Similar problems exist with respect to military courts-martial under the Uniform Code of Military Justice (UCMJ). Some nations have leapt far ahead of the United States in terms of their national courts being able to investigate and prosecute the full range of atrocity crimes. Other nations are in the process of legislating incorporation of atrocity crimes into their respective criminal codes, and these include France, Japan, Mexico, Switzerland, Finland, Sweden, Brazil, and Norway.

In contrast, the United States remains an available safe haven for war criminals and atrocity lords who need not fear prosecution before U.S. courts for the commission of atrocity crimes if they reach U.S. territory either legally or illegally. Indeed, the fact remains that U.S. citizens and U.S. Government employees and contractors who may commit certain atrocity crimes not covered in federal law or common crimes for which there is no extraterritorial jurisdiction may entirely escape any prosecution in the United States. The recent experience with security contractors in Iraq, such as Blackwater USA and DynCorp International, is only one example of this dilemma. The hypothetical possibilities, if not realities, arising from this shortcoming in U.S. federal law should be deeply disturbing to any rule of law society.

Before examining the gaps in U.S. federal law regarding atrocity crimes, I want to recognize the progressive work of this subcommittee during 2007. The Genocide Accountability Act of 2007, which Chairman Durbin and Senator Coburn co-sponsored, would close a critical gap in U.S. law regarding the crime of genocide. Whereas existing law permits only the prosecution of a U.S. national who commits genocide anywhere in the world or an alien who commits genocide in the United States, the Genocide Accountability Act of 2007 would, if enacted, ensure that U.S. courts could judge any alien who commits genocide anywhere in the world provided that alien is found in the United States. This would close the gap that still creates a safe haven in the United States for alleged alien perpetrators of genocide who manage to reach U.S. territory. Approved by the Senate on March 29, 2007, the Genocide Accountability Act of 2007 hopefully will be approved by the House of Representatives and placed on President Bush?s desk for his signature before the end of this calendar year.

The Child Soldiers Accountability Act of 2007, which is co-sponsored by Chairman Durbin, Ranking Member Coburn, Senator Feingold, and Senator Brownback and is currently before this subcommittee, would close a glaring gap in U.S. law regarding child soldiers. The legislation would criminalize 1) recruitment, enlistment, conscription, or use of child soldiers (less than 15 years of age) in the United States by anyone, and 2) recruitment, enlistment, conscription, or use of child soldiers (less than 15 years of age) anywhere in the world by a U.S. national or any alien present in the United States. It also would render any alien engaged in such conduct inadmissible to the United States or deportable from the United States. This legislation awaits action in both the Senate and House. As it now stands, there is no prohibition under U.S. federal law to the recruitment, enlistment, conscription, or use of child soldiers under 15 years of age, thus providing safe haven to any alien on U.S. territory who is engaged in such conduct and granting peace of mind to any American who recruits or uses children under 15 years of age anywhere in the world. This type of criminal conduct already has been prohibited under modernized criminal statutes in the United Kingdom, Australia, Canada, Germany, The Netherlands, New Zealand, South Africa, Spain, and Argentina (which raised the minimum age to 18) and in Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute of the International Criminal Court.

The Trafficking in Persons Accountability Act of 2007, approved by the Senate Judiciary Committee in September, would permit the prosecution of aliens found in the United States who are responsible for human trafficking offenses anywhere in the world. This would close the current gap in U.S. law, which permits such prosecutions only of U.S. citizens for human trafficking conducted anywhere in the world and of aliens who engage in human trafficking in the United States. If this legislation is enacted into law, the United States would no longer be a safe haven for alien human traffickers.

Unfortunately, genocide, human trafficking, and the recruitment, enlistment, conscription, or use of child soldiers compose only a fraction of atrocity crimes, and the United States remains an actual or a potential safe haven for perpetrators of a great many of the atrocity crimes which can now be prosecuted in a number of foreign jurisdictions and before the international and hybrid criminal tribunals. The United States cannot necessarily rely only upon its bilateral extradition treaties to resolve this impunity gap because 1) most extradition treaties require that the crime at issue (and for which the individual would be extradited to stand trial) must be punishable under the laws of both Contracting States, and many of the atrocity crimes are not punishable in either of the Contracting States, including the United States; 2) one can safely conclude that many of the jurisdictions that could exercise jurisdiction over an alleged alien atrocity lord or war criminal and with which the United States has an extradition treaty cannot be relied upon to seek extradition of the individual from the United States and guarantee credible prosecution of him or her; and 3) the United States has bilateral extradition treaties with just over 100 foreign jurisdictions, meaning that with respect to the almost 100 other nations, there is no option for extradition pursuant to a treaty obligation.

Beyond these recent developments in legislation, there is a broader landscape upon which well-recognized crimes against humanity and war crimes are absent from the federal criminal code (Title 18 of the U.S. Code) and from the U.S. military code (Title 10 of the U.S. Code). These gaps in U.S. law have become much more pronounced in recent years as other jurisdictions, particularly among America?s major allies, have modernized their criminal codes. In this testimony, I will examine both Title 18 and Title 10 and how the two titles of the U.S. Code should be more coherently inter-related and strengthened. But first the stage should be set with the jurisdictional reach of U.S. law for atrocity crimes.

Jurisdictional Reach of U.S. Law

Generally absent from U.S. law is the kind of jurisdictional regime that would provide the most pragmatic sphere of coverage to ensure that perpetrators of atrocity crimes cannot find safe haven in the United States. Current U.S. law on atrocity crimes typically exhibits a narrow range of jurisdiction, covering actions of U.S. citizens (although not necessarily if such action takes place abroad) or crimes which occur on U.S. territory. There is an expansive use of extraterritorial jurisdiction for terrorism, narcotics trafficking, and hostage-taking criminal laws, but similar extraterritorial applications have not yet reached atrocity crimes under U.S. law. This shortfall is beginning to be turned around with prospects for the Genocide Accountability Act of 2007, the Child Soldiers Accountability Act of 2007, and the Trafficking in Persons Accountability Act of 2007.

The gaps in U.S. law would be filled most pragmatically and effectively if the following jurisdictional criteria were established:
--Territorial jurisdiction: The crime has occurred in the United States or on any foreign territory under the effective control of U.S. authorities (including occupied territory and U.S. military facilities) or, if another jurisdictional prong described below exists, anywhere else in the world.
--Personal jurisdiction: The alleged perpetrator is a U.S. citizen or U.S. Government employee or contractor acting anywhere in the world or an alien who is present on U.S. territory with respect to any commission of an atrocity crime anywhere in the world.
--Subject matter jurisdiction: The crime is an atrocity crime, namely genocide, a crime against humanity, or a war crime as such crimes are defined under U.S. law and/or international law in terms of their magnitude and systematic or planned character.
--Passive personality jurisdiction: Federal jurisdiction should be triggered in respect of any American citizen who is a victim of an atrocity crime anywhere in the world and thus reach any perpetrator of an atrocity crime against such American victim.
--Protective jurisdiction: Where U.S. interests abroad are directly threatened by an atrocity crime, then U.S. courts should have the power to prosecute alleged perpetrators of any such crime. Such U.S. interests include threats to U.S. citizens, U.S. diplomatic and military facilities and assets, and U.S. sovereignty interests.

I have already addressed progress with respect to the crime of genocide, which will become a reality if the Genocide Accountability Act of 2007 is approved by the House of Representatives and becomes law. I will concentrate the rest of my testimony on crimes against humanity and war crimes.

Crimes Against Humanity

Crimes against humanity, as they are now defined in the statutes of the international and hybrid criminal tribunals and in modernized criminal codes of many foreign jurisdictions, require a particular context: that, with some exceptions, the individual crime is part of a widespread or systematic attack on a civilian population in furtherance of a State or organizational policy. U.S. federal criminal law provides for the prosecution of some underlying substantive crimes found in the now conventional list of crimes against humanity, but federal law does not generally specify distinct criminal liability based on the extent of the planned attack or the link to State policy.

U.S. law certainly provides the means to prosecute as common crimes such acts as murder, torture, slavery, kidnapping, sexual abuse, or rape under narrowly-defined circumstances set forth in Title 18 of the U.S. Code. But none of these codified crimes in Title 18 carry the additional requirements distinguishing crimes against humanity from common crimes. Nor does Title 18 include many of the well-established crimes against humanity, even as common crimes, which constitute the subject matter jurisdiction of the Nuremberg and Tokyo Military Tribunals and the international and hybrid criminal tribunals of the last 15 years, as well as the modernized criminal codes of some American allies.

Furthermore, there is generally no extraterritorial application of Title 18 common crimes; although there are some exceptions, U.S. courts are generally unable to prosecute an American citizen or an alien who is in the United States for alleged commission of either a Title 18 common crime outside the United States or a crime against humanity outside the United States. These are huge gaps in U.S. law which would permit alien atrocity lords to find safe haven in the United States and which deny U.S. courts the ability to prosecute American citizens who commit crimes against humanity anywhere in the world. This is the case even though prosecution under statutory circumstances of the common crime of murder or rape or torture or slavery or kidnapping or sexual abuse, typically with a single victim or very few victims, may provide a measure of justice. But such common crime prosecutions fall far short of what a successful prosecution of a crime against humanity, with multiple victims (sometimes in the tens of thousands), would entail and what it would signify as America?s commitment to the rule of law.

Federal criminal law also has statutes of limitations that generally confine indictments to a five-year window following commission of the crime, unless it is a capital offense, whereas such statutes of limitations have been abandoned in international and much foreign practice in light of the magnitude and serious character of crimes against humanity. Leaders engaged in such conduct and shielded by their continuing control of the government and law enforcement authorities (particularly in autocratic States) typically will not be exposed to apprehension or inclined to surrender to the courts for prosecution within such a relatively short period following commission of a crime against humanity.

The stark reality is that under U.S. federal law there is no provision for any crime against humanity per se, meaning there is no defined and codified crime that must be committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack, pursuant to or in furtherance of a State or organizational policy to commit such attack, and which constitutes the multiple commission of any of the following acts:
? Murder
? Extermination
? Enslavement
? Deportation or forcible transfer of population
? Imprisonment or other severe deprivation of physical liberty
? Torture
? Rape
? Sexually slavery
? Enforced prostitution
? Forced pregnancy
? Enforced sterilization
? Sexual violence
? Persecution
? Enforced disappearance of persons
? Apartheid
? Other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.

These crimes against humanity have been defined and incorporated in the criminal codes of Australia, Canada, Germany, The Netherlands, New Zealand, South Africa, Spain, Argentina, and the United Kingdom. These countries previously had been in similar circumstances as the United States but, because of their participation in the International Criminal Court, they modernized their criminal codes so as to enable them to prosecute the same crimes as are within the subject matter jurisdiction of the ICC. Under the principle of complementarity found in the Rome Statute of the ICC, a nation?s ability and willingness to prosecute the same crimes as found in ICC jurisdiction essentially shields that nation?s nationals from ICC scrutiny. Paradoxically, some of America?s allies, as states parties to the Rome Statute of the ICC, now are more insulated from ICC scrutiny than is the United States, even as a non-party to the Rome Statute, because our allies have modernized their criminal codes to fully incorporate genocide, crimes against humanity, and war crimes for possible investigation and prosecution against alleged civilian and military perpetrators.

It is certainly possible to cherry pick one?s way through Title 18 and cobble together barely plausible examples of common crimes, such as the federal kidnapping statute, that could be prosecuted in the spirit of a particular crime against humanity, such as imprisonment or other severe deprivation of physical liberty in violation of the fundamental rules of international law. But U.S. attorneys would have to become exceptionally innovative, and take considerable risks in the courtroom, to prosecute one of the common crimes under Title 18 as a crime against humanity. I have not been able to find a single federal criminal prosecution of a crime against humanity, as such.

A similar predicament arises when examining how a crime against humanity would be prosecuted against military personnel in U.S. military courts. There is no provision in the Uniform Code of Military Justice (UCMJ) which explicitly codifies a crime against humanity. It would be a stretch and entail similar risks for a military prosecutor to seek to refashion the common crimes set forth in the UCMJ, with their narrow definitions and relatively short (typically five year) statutes of limitations, into full-fledged crimes against humanity. Since there is no UCMJ crime that could easily be translated into, for example, the crime against humanity of persecution or of enslavement or of enforced pregnancy, U.S. military courts are without the power to prosecute military personnel under any circumstances for some crimes against humanity that do not interface with any of the common crimes set forth in the UCMJ.

In fact, there exists no explicit authority under Title 10 of the U.S. Code to prosecute any crime against humanity as a stand-alone codified crime. This means that it may prove very difficult to frame relevant charges (thus requiring resort to charges of common crimes) against any suspected perpetrators of crimes against humanity who are U.S. military personnel anywhere in the chain of command, including at the highest levels of military leadership. The prosecutor?s alternative would be to charge one of the UCMJ?s common crimes, which may fall far short of a crime against humanity charge. While an antiquated notion of military justice?focusing on common crimes and a general jurisdiction over war crimes?may remain useful under the UCMJ, the inability of U.S. military lawyers to bring an explicit crime against humanity charge may enable the individual to escape liability under U.S. law while exposing such individual to the scrutiny of a foreign court (with a modernized criminal code and where the crime may have allegedly occurred) or international or hybrid criminal tribunals that are accustomed to, and exercise vigorous jurisdiction over, crimes against humanity prosecutions of military personnel. (Much of the litigation before the international criminal tribunals involves indictments that charge both crimes against humanity and war crimes against military commanders and there have been convictions for commission of both types of crimes.) Ideally, Title 10 of the U.S. Code would be amended so as to enable military lawyers to bring full-bodied crimes against humanity charges against U.S. military personnel and thus deflect any foreign or international tribunal scrutiny of any such alleged conduct by an American serviceman.

Under federal criminal law, the United States remains in large measure a free haven for perpetrators of crimes against humanity. This is particularly true of any alien who is found on U.S. territory who may have perpetrated a crime against humanity outside the United States. It is also largely true of any U.S. citizen who may perpetrate a crime against humanity overseas or, if responsible for one on U.S. territory, may only be charged with a common crime that does not reflect the magnitude or importance of the atrocity crime for which he or she should be held responsible.

War Crimes

It may seem remarkable to some that there are gaps in both U.S. federal law and U.S. military law in the ability of federal courts and courts-martial and even military commissions to prosecute war crimes. After all that has been experienced since the precedents of the Nuremberg and Tokyo Military Tribunals and the scores of cases prosecuted by the international criminal tribunals during the last 15 years, one would be forgiven to assume that surely, in the United States, the law is now well established to enable U.S. courts (criminal and military) to investigate and prosecute the full range of war crimes that have been codified in treaty law and defined as a matter of customary international law. That, however, is not the case.

While there certainly are some war crimes that can be fully prosecuted under U.S. law, there are many for which there is no jurisdiction in U.S. criminal law and there is uncertain or vague jurisdiction in U.S. military law. The primary federal law, the War Crimes Act of 1996, as amended, is enforceable only in circumstances where the perpetrator or the victim of the war crime is a U.S. citizen or a member of the U.S. Armed Forces. An alien can be prosecuted only if the victim is a U.S. citizen or a member of the U.S. Armed Forces. If an alien arrives in the United States having committed war crimes against victims of a foreign nationality on foreign territory or the alien commits such war crimes on U.S. territory and the only victims are other aliens, there is no basis for prosecuting that individual in a federal criminal court on war crimes charges. (Of course, there may be grounds to bring charges for common crimes against the alien unleashing violence on U.S. territory.) In contrast, modernized criminal codes of some of America?s major allies now empower their criminal courts to prosecute the full range of war crimes and to do so against a far wider range of potential defendants, including aliens found on the prosecuting state?s territory.

The most commonly-known group of war crimes?the ?grave breaches? during international armed conflicts under the 1949 Geneva Conventions ?could not be prosecuted in federal courts against civilians and members of the U.S. Armed Forces until enactment of the War Crimes Act of 1996. Thus the grave breaches of torture, inhuman treatment, biological experiments, willfully causing great suffering, destruction and appropriation of property, compelling service in hostile forces, denying a fair trial, unlawful deportation and transfer, unlawful confinement, and hostage-taking can, as of 1996, be prosecuted in U.S. federal courts but, remarkably, never have been. The War Crimes Act of 1996 also empowers federal courts to prosecute civilians and members of the U.S. Armed Forces for a group of war crimes sourced back to the Annex to Hague Convention IV, Respecting the Laws and Customs of War on Land (1907). These war crimes consist of attacking undefended places, killing or wounding a person hors de combat, improper use of a flag or truce, improper use of a flag, insignia or uniform of the hostile party, treacherously killing or wounding, denying quarter, destroying or seizing the enemy?s property, depriving the nationals of the hostile power of rights or actions, compelling participation in military operations, pillaging, and employing poison or poisoned weapons. Again, however, no such war crimes have ever been prosecuted under the War Crimes Act of 1996.

In 1997 the War Crimes Act was amended to include violations of Common Article 3 of the Geneva Conventions. This meant that with respect to conduct during non-international armed conflicts, all of the following violations could be, but never were, prosecuted in U.S. federal courts between 1997 and 2006:
? Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
? Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
? Taking of hostages;
? The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.
However, the United States regressed in this field of criminal law with enactment of the Military Commissions Act of 2006 (MCA). The MCA de-criminalized certain war crimes set forth in Common Article 3 of the 1949 Geneva Conventions for purposes of U.S. prosecution. Specifically, the following violations described in Common Article 3 can no longer be prosecuted in U.S. courts following the nine-year period during which they had been criminalized: ?violence to life and person,? murder ?of all kinds? (as opposed to the limited and defined circumstances set forth in the MCA), ?outrages upon personal dignity, in particular humiliating and degrading treatment,? and ?the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.?

Furthermore, in the President?s Executive Order of July 20, 2007, which he issued pursuant to Section 6(a)(3) of the MCA to govern ?a program of detention and interrogation approved by the Director of Central Intelligence,? President George W. Bush defined the Common Article 3 violation of ?Committing outrages upon personal dignity, in particular humiliating and degrading treatment? in a manner that narrowed its scope in comparison to international practice and comparable definitions found in the modernized criminal codes of key American allies and friends. The President introduced a cascade of qualifiers that do not appear elsewhere in U.S. law or practice, including in the latest Army Field Manual. The acts must be ?willful and outrageous? as matters of fact rather than general recognition; they must be done ?for the purpose? of everything described in the interpreted violation (as opposed to simply being done); the acts must be done ?in a manner so serious? rather than simply done as a matter of degree; and ?any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency? (emphasis added), which raises the bar for a Common Article 3 violation given that there might be at least one reasonable person who would deem the acts acceptable and given that ?beyond the bounds of human decency? could be construed as a higher bar to jump than ?outrages upon personal dignity.? (One can easily imagine a CIA interrogator concluding that a particular form of interrogation may diminish (perhaps in someone else?s mind ?outrageously?) a detainee?s ?personal dignity? but that the ?bounds of human decency? have not (yet) been crossed.) The end result is another gap in American criminal law on Common Article 3 violations when compared to what existed prior to the Executive Order of July 20, 2007, and the MCA and during the period of enforceability of the War Crimes Act of 1996, as amended in 1997 (namely, 1997 to 2006).

In addition, the MCA denies penal sanctions for certain conduct otherwise criminalized by the MCA (murder, mutilation or maiming, and intentionally causing serious bodily injury) under the War Crimes Act of 1996, as amended, or with respect to crimes triable by the military commissions, in the event such conduct occurs in connection with ?collateral damage? or ?death, damage, or injury incident to a lawful attack.? These terms are left undefined and one is left to speculate why the designation of either consequence necessarily extinguishes any criminal liability whatsoever. The long-standing rule of proportionality in the law of war appears to be tested here. Interestingly, in the criminal codes of various foreign jurisdictions and in the Rome Statute of the International Criminal Court, a bright line has been drawn on the issue of collateral damage: it is a war crime to intentionally launch an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. The latter caveat, of ?clearly excessive? character, would be a difficult one to achieve for purposes of prosecution but it is a standard that has gained widespread acceptance, including among the U.S. Armed Forces. The MCA?s apparent ?collateral damage? gap, one that permits collateral damage even if it is inflicted in a manner that is ?clearly excessive in relation to the concrete and direct overall military advantage anticipated,? thus narrows the scope of liability for war crimes under American law.

Despite what may appear to be an impressive compilation of war crimes that can be prosecuted under the War Crimes Act of 1996, even in its truncated version following the amendments of it under the MCA in 2006, there remain a significant number of war crimes under customary international law as confirmed in both the practice of the international and hybrid criminal tribunals and the Rome Statute of the ICC which have not been codified in U.S. law. In contrast, most if not all of these war crimes have been codified in the criminal codes of some of America?s major allies, thus empowering them to prosecute explicit war crimes, particularly with respect to their own nationals. The list includes the following war crimes, stated in abbreviated form:

Pertaining to international armed conflicts:
? Attacking civilians
? Attacking civilian objects
? Attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission
? Improper use of a flag, insignia or uniform of the United Nations
? Improper use of the distinctive emblems of the Geneva Conventions
? Transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory
? Attacking protected objects
? Mutilation
? Medical or scientific experiments
? Employing prohibited gases, liquids, materials or devices (but see BWC/CWC)
? Employing prohibited bullets
? Outrages upon person dignity
? Rape
? Sexual slavery
? Enforced prostitution
? Forced pregnancy
? Enforced sterilization
? Sexual violence
? Using protected persons as human shields
? Attacking objects or persons using the distinctive emblems of the Geneva Conventions
? Starvation as a method of warfare
? Using, conscripting, or enlisting children (unless and until the Child Soldiers Accountability Act of 2007 is adopted and enacted).

Pertaining to non-international armed conflicts:
? Attacking civilians
? Attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission
? Attacking protected objects
? Pillaging
? Rape
? Sexual slavery
? Enforced prostitution
? Forced pregnancy
? Enforced sterilization
? Sexual violence
? Using, conscripting, and enlisting children (unless and until the Child Soldiers Accountability Act of 2007 is adopted and enacted)
? Displacing civilians
? Treacherously killing or wounding
? Denying quarter
? Mutilation
? Medical or scientific experiments
? Destroying or seizing the enemy?s property

While it remains possible through innovative interpretation of indictable common crimes under the U.S. Code to prosecute an American citizen or a narrow range of aliens for one or more common crimes that may overlap with one or more of these unindictable war crimes, the haphazard methodology of any such prosecution in the context of war crimes denies the United States the opportunity to prosecute such war crimes per se and hence identifies the country as a virtual safe haven for those who commit such crimes. The complexity of the exercise may explain why there has been no war crimes prosecution under the War Crimes Act of 1996, as amended, and why no U.S. attorney has sought to portray any prosecution in the federal courts as a war crimes prosecution.

When one examines the situation with respect to U.S. military courts, there exist many uncertainties and largely a theoretical power to prosecute war crimes rather than any significant precedents of doing so. Much would turn, if the opportunity arose, on the military courts? interpretation of the law of war under international law. Under 10 U.S.C. § 818, general courts-martial ?have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal?? This general provision is elaborated by the Manual for Courts-Martial United States, which states: ?General courts-martial may try any person who by the law of war is subject to trial by military tribunal for any crime against: (a) The law of war;?? The Manual also provides, ?Nothing in this rule limits the power of general courts-martial to try persons under the law of war.? In addition, jurisdiction resides with military commissions and other military tribunals of ?concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried? by them. The reach of U.S. military courts and military commissions over civilians in certain circumstances, enemy belligerents of either military or civilian character, or foreign nationals of countries not at war with the United States remains problematic and may turn on how well-established any particular war crime is under principles of universal jurisdiction in international law.

Rather than try to parse the myriad of possibilities for military court jurisdiction over the commission of war crimes by U.S. nationals of civilian or military character or by aliens of any number of different characterizations, I emphasize one point: It is not possible to extract from the UCMJ, Title 10 of the United States Code, or the jurisprudence of U.S. military courts any definitive list of explicit war crimes which such military courts are empowered to prosecute against U.S. military personnel, enemy belligerents, or civilians engaged or caught up in hostilities or on occupied territory. One exception is the Military Commissions Act of 2006. Military Commissions established thereunder are empowered to prosecute ?any offense made punishable by [and defined in the Military Commissions Act of 2006] or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.? Although a detailed list of triable offenses that cover many explicit war crimes is set forth in the MCA, that list does not cover all established war crimes and thus the Commissions? supplemental jurisdiction over the ?law of war? may need to trigger the prosecution of additional war crimes in the future.

The UCMJ Article 32 investigations and, in some cases, courts-martial of U.S. service personnel arising from U.S. military operations in Afghanistan and Iraq have not to date been grounded on charges of war crimes, even though on the surface many of the incidents might invite serious scrutiny as possible war crimes and certainly, to the rest of world, appear to exhibit characteristics of war crimes. Rather, these investigations and courts-martial have relied upon the punitive articles of the UCMJ, few of which constitute a war crime per se and are more properly understood as common crimes that may be committed by American soldiers. Typical charges in connection with cases arising from Iraq or Afghanistan are assault, failure to obey an order or regulation, murder, cruelty and maltreatment, dereliction of duty, manslaughter, rape, and conduct unbecoming an officer and a gentleman?all charges that also could be brought as crimes against fellow soldiers or civilians in the United States. Because the UCMJ does not have a clearly identifiable list of war crimes in its punitive articles (perhaps one that could read ?Acts Against the Laws and Customs of War?), it remains difficult to describe the military justice system as one focused on, or even defined by, the prosecution of war crimes. The primary exception in the UCMJ, discussed above, turns on trials governed by the ?law of war,? an option rarely invoked by military courts.

In 2005 an Air Force JAG officer, Mynda L.G. Ohman, who at the time was one of my top students seeking an LL.M. in international law, wrote a excellent thesis for me on Titles 10 and 18 of the U.S. Code and succinctly summarized how antiquated the UCMJ has become in the context of war crimes prosecutions. The following is an extract (exclusive of footnotes) from her thesis that I believe merits the subcommittee?s attention:

?As part of federal statutory law, the War Crimes Act may be incorporated and charged under the UCMJ. Article 134 of the UCMJ, the ?general article,? allows the military to import non-capital federal criminal statutes and charge them in a military court-martial. This broadens the subject matter of criminal offenses available to a court-martial. Not only are the punitive articles of the UCMJ available to the military prosecutor, any federal criminal statute that applies where the crime was committed could also be charged under the general article. This provision would generally allow military authorities to incorporate the War Crimes Act into military prosecutions and charge U.S. service members with certain war crimes.

?While the UCMJ has the flexibility to import federal law into trials by courts-martial, it has its limits. Courts have interpreted the language of the general article to bar importation of federal capital crimes into UCMJ proceedings. Where federal civilian courts have jurisdiction over criminal offenses that authorize the death penalty, these federal crimes may not be brought before a court-martial under Article 134. For example, the most serious crimes under the War Crimes Act?those in which the victim dies as a result of the defendant?s conduct?trigger the authorization of the death penalty under the federal criminal statute. Therefore, such crimes cannot be charged as war crimes in a trial by court-martial. Still, military prosecutors may charge the underlying conduct as a violation of another punitive article, as has been the practice for more than one hundred years.

?This has created a lopsided result. The Department of Defense is normally the agency that prosecutes members of the United States armed forces. Federal criminal law allows for punishment of certain war crimes, yet, the federal law may not be utilized in military prosecutions to the same extent as in federal civilian courts. The effect of this limitation is that courts-martial must continue to largely rely on the offenses defined by Title 10 when charging crimes that occur during an armed conflict. As a result, the most egregious crimes under the laws of war committed by U.S. military members are charged as common crimes under the UCMJ. For example, the intentional, fatal shooting of a person protected by the Geneva Conventions will likely be charged as murder under Article 118, and torture will likely be charged as an assault under Article 128. Compared to federal prosecutions, offenses tried by courts-martial will often carry lower maximum penalties.

?The UCMJ currently defines offenses that fall into three broad categories: crimes that are purely military offenses with no corresponding civilian provisions, common crimes that appear in both the UCMJ and in most state and federal criminal codes, and offenses that by definition or explanation are related to military operations, combat, or war. Where the UCMJ appears to have stagnated is in codifying breaches of evolving international humanitarian laws affecting warfare. The UCMJ was enacted in 1950, five years before the United States ratified the Geneva Conventions. During every conflict, reports of serious misconduct by U.S. forces emerge, and the U.S. military has responded by bringing such offenders before courts-martial. Yet, the convictions are for common crimes, not war crimes.?

Among the various options for how to modernize the UCMJ, Major Ohman proposed ?adding a new War Crimes article to the UCMJ to 1) align the UCMJ with existing federal criminal law, 2) better insulate U.S. military members from the use of military commissions, and 3) seize upon the secondary preventive benefits of having a separate article that specifically defines and punishes war-related crimes.? In such a new War Crimes article should be listed, with particularity, the U.S. Government?s confirmation of the war crimes which now exist under customary and codified international law. The new UCMJ article should mirror those war crimes fully listed and incorporated into Title 18 as a matter of federal criminal law. The new UCMJ article also should incorporate a comprehensive listing of crimes against humanity in the event Title 18 were to be amended to include such crimes, as discussed earlier in this testimony.
Conclusion

The federal criminal code and military code exhibit significant gaps in their respective coverage of atrocity crimes, namely genocide, crimes against humanity, and war crimes?categories of crimes which have evolved rapidly in international criminal law and human rights law during the last 15 years. Other major nations?America?s allies?have modernized their codes to enable their courts to prosecute the full range of atrocity crimes, thus reflecting their democratic choice to strengthen the rule of law in their own societies. Such modernizing exercises also reflect their pragmatic choice to minimize the exposure of the nationals of such nations to the scrutiny of international criminal tribunals because national courts will be able to carry that responsibility.

Progress is being made to modernize the federal criminal code through the Genocide Accountability Act of 2007, the Child Soldiers Accountability Act of 2007, and the Trafficking in Persons Accountability Act of 2007. Further work is required, however, to amend Title 18 of the U.S. Code so that the full range of crimes against humanity and war crimes can be prosecuted in federal courts without any question as to the ability of such courts to exercise complete subject matter jurisdiction over such international crimes. Title 10 of the U.S. Code requires amendment to enable military courts to fully prosecute war crimes and crimes against humanity. The jurisdiction of federal criminal courts should extend to all U.S. nationals who perpetrate atrocity crimes anywhere in the world and to any alien who commits an atrocity crime in the United States or anywhere else in the world and, in the latter situation, who also is present on U.S. territory.

Filling the gaps in American law pertaining to atrocity crimes would demonstrate that the United States has the confidence to reject impunity for such crimes and to hold its own nationals to account as well as foreign nationals over whom U.S. courts should be exercising personal jurisdiction. The United States would no longer be a safe haven in reality or as potential destination for untold numbers of perpetrators of atrocity crimes. Amending and thus modernizing Titles 10 and 18 in the manner proposed in this testimony would signal the end to exceptionalism in atrocity crimes and place the United States on an equal footing with many of its allies which already have recast their criminal law to reflect the reality of international criminal and humanitarian law in our own time.

Thank you. I would be pleased to answer any questions.

1 The international and hybrid criminal tribunals include the International Criminal Tribunals for the Former Yugoslavia and Rwanda, the Special Court for Sierra Leone, the Iraqi High Tribunal, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court. The term ?atrocity crimes? is explained in David Scheffer, Genocide and Atrocity Crimes, 1.3 Genocide Studies and Prevention 229 (2006); David Scheffer, The Merits of Unifying Terms: ?Atrocity Crimes? and ?Atrocity Law,? 2.1 Genocide Studies and Prevention 91 (2007).
2 28 U.S.C. §1350 (2006).
3 28 U.S.C. §1350 (2006).
4 The notable exception has been the sole case (against Emmanuel ?Chuckie? Taylor, the former leader of Liberia?s Anti-Terrorism Unit) prosecuted under the criminal Torture Statute (10 U.S.C. §2340A) since its enactment in 1994.
5 Uniform Code of Military Justice, 10 U.S.C. §§ 801-946 (2006). While it remains true that atrocity crimes likely could be prosecuted as multiple counts of common crimes under the UCMJ (such as genocide as multiple counts of murder or crimes against humanity as cruelty and maltreatment), the UCMJ does not provide for the specific atrocity crimes. The military prosecutor is left pondering whether to charge an atrocity crime under the general authority of UCMJ Article 18 or Article 134, which in fact are antiquated options rarely if ever employed.
6 Examples include the United Kingdom (International Criminal Court Act 2001, Chapter 17, Part 5, 11 May 2001); Australia (International Criminal Court (Consequential Amendments) Act 2002, 28 June 2002]; Canada (Crimes Against Humanity and War Crimes Act (2000, c. 24), 29 June 2000); Germany (Code of Crimes against International Law, 30 June 2002); The Netherlands (International Crimes Act (2003)); New Zealand (International Crimes and International Criminal Court Act 2000, 1 October 2000); Argentina (ICC Implementation Law (2007)); Spain (The Organic Act 15/2003); South Africa (Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, 18 July 2002).
7 Alissa J. Rubin and Paul von Zielbauer, Blackwater Case Highlights Legal Uncertainties, N.Y. TIMES, Oct. 11, 2007, at A1; Hearing on Private Security Contracting in Iraq and Afghanistan Before the House of Representatives Comm. on Oversight and Gov?t Reform, 110th Cong. (2007) (October 3, 2007); James Glanz, Security Guard Kills Iraqi Driver, N.Y. TIMES, Nov. 12, 2007, at A1.
8 Genocide Accountability Act, S. 888, 110th Cong. (2007) (passed Senate without amendment by unanimous consent on March 29, 2007, referred to House Committee on the Judiciary, Subcommittee on Crime, Terror, and Homeland Security on April 20, 2007).
9 This dilemma was glaringly apparent in two of my own experiences as Ambassador at Large for War Crimes Issues. The first was the inability to consider charging Elizaphan Ntakirutimana, who was indicted by the International Criminal Tribunal for Rwanda and arrested in Laredo, Texas, in December 1996, in federal court with the crime of genocide in the event he successfully blocked his transfer to the ICTR to stand trial in Arusha. Since he was an alien who was charged with committing genocide outside the United States, U.S. law barred prosecuting him for genocide. If we had not prevailed in federal court to uphold our authority to transfer him, he would have lived a free man in the United States. The federal litigation spanned four years: Surrender of Ntakirtutimana, 988 F.Supp 1038 (S.D. Tex. 1997); In re Ntakirutimana, 1998 WL 655708 (S.D. Tex. Aug. 6, 1998); Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999); Ntakirutimana v. Reno, 528 U.S. 1135 (2000). The second experience concerned Pol Pot, whom we had wanted at least to have the option of bringing to the United States to stand trial for crimes against humanity and genocide in Cambodia from 1975 to 1979 in the event he could have been apprehended prior to his death in 1998. The Department of Justice advised that U.S. courts probably would have no jurisdiction over Pol Pot and thus we had to seek a foreign jurisdiction, which proved very time-consuming, where he could be transported if captured. In the end, time spent trying to overcome U.S. jurisdictional inadequacies enhanced Pol Pot?s chances of avoiding imminent capture and sacrificed the opportunity to move more decisively against him.
10 Child Soldiers Accountability Act, S. 2135, 110th Cong. (2007).
11 Rome Statute of the International Criminal Court, art. 8(2), July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].
12 Trafficking in Persons Accountability Act, S. 1703, 110th Cong. (2007).
13 In this testimony I recommend that U.S. law be amended to incorporate a comprehensive list of and definitions for atrocity crimes.
14 Inter alia, 18 U.S.C. § 1111 (murder); § 2340 (torture); § 1584 (sale into involuntary servitude); § 1589 (forced labor); § 1201 (kidnapping); § 2242 (sexual abuse); § 2241 (aggravated sexual abuse).
15 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis art. 6(c), Aug. 8 1945, 59 Stat. 1546, 82 U.N.T.S 279 [hereinafter London Charter]; Charter for the International Military Tribunal of the Far East art. 5(c), Jan. 19, 1946, T.I.A.S. No. 1589, 4 Bevans 20 (1968), [hereinafter Tokyo Charter]; Statute of the International Criminal Tribunal for the Former Yugoslavia art. 5, S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993) [hereinafter ICTY Statute]; See Statute of the International Criminal Tribunal for Rwanda art. 3, S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) [hereinafter ICTR Statute]; Statute of the Special Court for Sierra Leone art. 2, Jan. 16, 2002, 2178 U.N.T.S. 145 [hereinafter SCSL Statute]; Statute of the Iraqi High Tribunal art. 12, Oct. 18, 2005, available at www.law.case.edu/saddamtrial/documents/IST_statute_official_english.pdf [hereinafter IHT Statute]; Rome Statute, supra note 11, art. 7.
16 See supra note 6.
17 See 18 U.S.C. § 3282.
18 None of the international or hybrid criminal tribunals have any comparable statute of limitations on the prosecution of crimes falling within their jurisdiction. Further, there are no statutes of limitations in the modernized criminal codes covering atrocity crimes of the United Kingdom, Australia, Canada, France (for ?serious crimes,? defined by the French Constitutional Court as so serious as to be of concern to the international community as a whole), Germany, The Netherlands (except for the least serious war crimes which are limited to 12 years), New Zealand, and South Africa.
19 Rome Statute, supra note 11, arts. 17-19.
20 See Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court, 167 MIL. L. REV. 20 (Mar. 2001) (This article received the American Bar Association?s military writing award); see also Michael P. Hatchell, Closing the Gaps in United States Law and Implementing the Rome Statute: A Comparative Approach, ILSA J. INT?L & COMP. L. 183 (Fall 2005).
21 18 U.S.C. § 1201.
22 Uniform Code of Military Justice, 10 U.S.C. §§801-946 (2006).
23 10 U.S.C. § 843 (2006).
24 Prosecutor v. Tadic, Case No. IT-94-1, Trial Chamber Opinion and Judgment, ¶¶ 741-3 (May 7, 1997) (defendant charged and convicted of crimes against humanity and war crimes); Prosecutor v. Jelisic, Case No. IT-95-10, Trial Chamber Judgment, ¶ 58 (Dec. 14, 1999) (defendant charged with and convicted of crimes against humanity and war crimes); Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber Judgment, ¶¶ 638, 645 (Sep. 2, 1998) (defendant charged with crimes against humanity and violations of the Geneva Conventions); Prosecutor v. Rutaganda, Case No. ICTR-96-3, Trial Chamber Judgment and Sentence, ¶¶ 403-445 (Dec. 6, 1999) (defendant charged with crimes against humanity and violations of the Geneva Conventions).
25 18 U.S.C. § 2441.
26 For example, The United Kingdom has criminalized all of the war crimes set forth in Article 8.2 of the Rome Statute of the ICC (International Criminal Court Act 2001 (c. 17), Section 50(1)) and can prosecute any alien who commits war crimes (or genocide or crimes against humanity) outside the United Kingdom provided such person subsequently becomes resident in the United Kingdom (International Criminal Court Act 2001 (c. 17), Section 68(1)).
27 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field arts. 49-50, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 33; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea arts. 50-51, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 86; Geneva Convention (III) Relative to the Treatment of Prisoners of War arts. 129-30, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War arts. 146-7, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 288.
28 18 U.S.C. § 2441(c)(1).
29 Regulations Respecting the Laws and Customs of War on Land, annexed to Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631 [hereinafter Hague Convention]; see 18 U.S.C. § 2441(c)(3).
30 The amended provision read: ?(c) DEFINITION ? As used in this section the term ?war crime? means any conduct?.(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflicts?? 18 U.S.C. § 2441(c)(3) (as it was codified from 1997 to 2006).
31 Military Commissions Act of 2006, 10 U.S.C. § 948(b) (2006).
32 Military Commissions Act § 6(b).
33 Exec. Order No. 13,440, 72 FR 40707 (July 20, 2007).
34 Among those allies and friends are the United Kingdom, Australia, Canada, Germany, The Netherlands, New Zealand, Spain, Argentina, and South Africa.
35 Department of the Army, Field Manual 2-22.3: Human Intelligence Collector Operations (2007).
36 Exec. Order No. 13,440, 72 FR 40707 (July 20, 2007), at § 3(b)(i)(E).
37 Military Commissions Act § 6(b)(3).
38 Rome Statute, supra note 11, art. 8(2)(b)(iv).
39 Manual for Courts-Martial, United States, R.C.M. 201(f)(a)(B)(i) (2005).
40 Id. R.C.M. 202(b).
41 10 U.S.C. § 821.
42 Douglass Cassel, Empowering United States Courts to Hear Crimes Within the Jurisdiction of the International Criminal Court, 35 NEW ENG. L. REV. 421, 430-32 & nn.40-49 (2001).
43 Military Commissions Act § 948d(a).
44 Military Commissions Act § 950(v).
45 10 U.S.C. § 32.
46 10 U.S.C. §§ 77-134.
47 Mynda L.G. Ohman, Integrating Title 18 War Crimes into Title 10: A Proposal to Amend the Uniform Code of Military Justice, a Thesis submitted to Professor David J. Scheffer in partial satisfaction of the requirements for the degree of Masters of Laws, The George Washington University Law School, May 24, 2005 (on file with Professor Scheffer).
48 Id.