Why Religious Persecution Justifies U.S. Legislation on Crimes Against Humanity

(This article is part of a series on a proposed Convention on the Prevention and Punishment of Crimes Against Humanity, due to be considered in discussions now scheduled to resume on Oct. 13 in the Sixth Committee, the U.N. General Assembly’s primary forum for discussion of legal questions.)

The enactment of U.S. legislation on crimes against humanity would strengthen the prospect of the United States one day seriously considering ratification of the proposed Convention on the Prevention and Punishment of Crimes Against Humanity. In testimony before the U.S. Commission on International Religious Freedom on Sept. 30, I sought to explain the importance of the legislation currently being crafted on Capitol Hill. I was joined at the hearing by Professor Leila Sadat, who focused on the convention’s many attributes. The following narrative is drawn from my testimony.

At the Nuremberg Trials following World War II, the Holocaust was first and foremost prosecuted by U.S. prosecutors as a crime against humanity with deeply embedded religious origins. If one surveys the atrocity crimes committed in recent decades and currently (namely genocide, crimes against humanity, and war crimes), religious violence stands out as a core element of many of these prejudicial assaults against multitudes of victims. Recall the persecution of the Muslim Cham community by the Khmer Rouge in Cambodia in the late 1970s, Bosnia in the early 1990s, Sudan for decades, ISIS and its rampage through the Middle East several years ago, including against the Yazidis, and today the Uyghurs in China, the Rohingya in Myanmar, and continuing religious turmoil in Nigeria, Kashmir, Yemen, Armenia-Azerbaijan, Ethiopia, the Holy Land, and Northern Ireland. Not everything that has transpired in these religion-stoked situations constitutes crimes against humanity, but this atrocity crime has left and continues to inflict far more scars on humankind than other international crimes.

The World Economic Forum reported in 2019 that religious violence across the globe is rising. That trend continues to this day. So this is reality knocking on our door.

Many of the criminal acts in the category of crimes against humanity have been employed in religious conflicts: widespread or systematic commission of murder, extermination, forcible transfer of population, torture, and mass rape or other forms of sexual violence, not to mention persecution that can underpin ethnic cleansing on religious grounds and unspecified “inhumane acts” that are confirmed by courts. Indeed, the London Charter that created the International Military Tribunal for the Nuremberg Trials and the Rome Statute that established the International Criminal Court (ICC) explicitly codified religious persecution as a crime against humanity.

Gap in U.S. Criminal Law

Regrettably, not only is there no convention on the prevention and punishment of crimes against humanity, there is a gap in U.S. federal criminal law regarding such violations, which do not exist in the U.S. Code, even though federal courts often have invoked crimes against humanity as enforceable customary international law in civil law matters. As recently as Sept. 15, the U.S. District Court in the Eastern District of Pennsylvania granted summary judgment in a civil lawsuit brought in February 2018 by survivor victims against a former Liberian warlord, Moses W. Thomas, for torture under the Torture Victim Protection Act and for both war crimes and crimes against humanity under the Alien Tort Statute. The plaintiffs survived a July 1990 massacre at a Lutheran Church in Monrovia, Liberia, during that country’s civil war. Thomas, accused of supervising the slaughter, returned from the United States to Liberia two years ago. If there had been a crimes against humanity statute in federal criminal law in 2018, Thomas could have been detained awaiting trial.

Further, were the United States to codify such criminal penalties, it would be well-placed to participate in the future in the proposed Convention on the Prevention and Punishment of Crimes Against Humanity as having already achieved its domestic requirements. The United States thus could serve as a leader to encourage prosecution of this body of atrocity crimes in national courts globally.

One can no longer logically argue that crimes against humanity, committed on such a large scale, should be absent from the federal criminal code, as if they merit the imprint of impunity. Frankly, this is an antiquated omission that could be viewed by others as an ever- shining green light to commit crimes against humanity without fear of U.S. criminal justice.

For many years, I and others have pointed to this glaring gap in federal criminal law. Senator Dick Durbin, chairman of the Senate Judiciary Committee, has long labored on legislation to codify and criminalize crimes against humanity, which is the draft bill that merits getting across the finish line for filing in this Congress. The American Bar Association Working Group on Crimes Against Humanity, which I chair and of which Professor Sadat and Professor Beth Van Schaack (a Just Security executive editor) are members, has been working to advance a crimes against humanity bill since 2015. The draft legislation also would correct a couple of other gaps in federal law to ensure criminal liability under U.S. law of non-American perpetrators of war crimes waged against anyone anywhere in the world if such alien perpetrators are present in the United States, and to bar from admission to the United States any alien who engaged in the commission of war crimes or crimes against humanity.

The United States should not be a safe haven for perpetrators of crimes against humanity during religious conflicts overseas or, for that matter, to advance any cause anywhere. A government cannot speak of religious freedom abroad – much less of seeking to defend it — if the same government is providing shelter to the very individuals who deny such religious freedom by committing crimes against humanity against those whose religious persuasion is different from their own. The interests of victims of crimes against humanity remain paramount. Provided jurisdictional requirements are met, the U.S. legal system should be structured to enable the Department of Justice to meet victims’ yearning for accountability.

Impunity for American Citizens?

Nor would it be plausible to permit an American citizen to commit crimes against humanity at home or abroad without being subject to criminal punishment under U.S. law. We have not accepted any such impunity for the commission of genocide, torture, or war crimes (including recruiting, enlisting, or conscripting children in an armed force or group or using children to participate actively in hostilities), and there is no rational argument why we should exclude crimes against humanity from the list of crimes that Americans must not commit or tolerate. We should be setting the example, particularly in the face of authoritarian regimes across the globe.

Further, just as federal criminal statutes pertaining to genocide, war crimes, and torture do not carve out the U.S. military from their reach, neither should the crimes against humanity bill. While crimes against humanity (and their tough contextual requirements) are not explicitly designated as such in the “punitive articles” of the Uniform Code of Military Justice, there are a number of violations in such punitive articles that can be found (or interpreted to fall) within the corpus of crimes against humanity. A federal criminal law would ensure — as with genocide, war crimes, and torture — that there is no loophole in federal law permitting the commission of crimes against humanity. If there were to be an intentional command decision to commit crimes against humanity and to do so as part of a known widespread or systematic attack against a civilian population — a scenario I would find shockingly un-American — then there must be an unambiguous means of accountability under U.S. law.

Even if one remains concerned about the exposure of American nationals to compliance with such international law, I would emphasize this point: Although the United States is not a State Party to the Rome Statute, the nation would be foolish not to have a crimes against humanity law to enforce on its own will. The principle of complementarity under the Rome Statute applies to both States Parties and non-party States to the treaty. Where a country has the capacity in its criminal law to investigate and prosecute crimes against humanity — as crimes against humanity and not lesser crimes — then that country can avoid ICC scrutiny for any such crimes allegedly committed by its nationals, provided the government proceeds in good faith to investigate and, if merited, prosecute any such individuals.

U.S. Needlessly Exposed to Scrutiny by ICC

This principle serves the interests of a non-party State, such as the United States, because the ICC may seek to investigate U.S. nationals if there are allegations that those individuals committed crimes against humanity on the territory of a State Party to the Rome Statute. The Court must respect the United States when it responds in good faith that it will investigate alleged crimes against humanity, just as it can currently do with respect to alleged genocide and war crimes if suspected by the Court, provided there is federal law enabling its law enforcement authorities to investigate and prosecute crimes against humanity. If there is no such law, then the ICC can ignore American protestations and claim that the United States lacks the legal capacity to undertake the task, which the Court then may proceed to undertake on its own. There are 104 countries, including all but one of the United States’ 27 NATO allies, that have codified crimes against humanity in their criminal codes. A large majority of these 104 countries are States Parties to the Rome Statute. National laws empower such countries to exercise their full complementarity rights under the Rome Statute, essentially requiring the Court to “back off.”  The United States oddly remains, because of this gap in federal law, needlessly exposed to scrutiny by the ICC.

All that being said, the legislation is primarily aimed at the more prominent objective of ensuring that alien perpetrators of crimes against humanity find no sanctuary in the United States.

Finally, David Miliband, president and chief executive officer of the International Rescue Committee, recently wrote and was interviewed about a new “age of impunity.”  The absence of  a crimes against humanity law in the U.S. federal criminal code certainly exemplifies that description of our times. It is almost a clarion call to those who commit such atrocities that the United States remains available for refuge, or even a quick visit to Disney World, without fear of prosecution. One might describe the United States as “Impunity World” for such world-class criminals.

A crimes against humanity bill should not be a heavy lift on Capitol Hill. It should be viewed as a bipartisan, non-partisan imperative for the sake of humankind. The modest part that the United States can play in this global challenge is to criminalize commission of crimes against humanity — in the same spirit as our lawmakers already have done for individual acts of genocide, torture, and war crimes — and thus provide a path to justice for the victims in particular.