International Law

In the wake of its civil war, South Sudan has struggled to build democratic institutions and deliver justice for human rights abuses and atrocity crimes.

In the final hours prior to the Senate’s recess last month, it was heartening to see many of President Joe Biden’s nominees for ambassadorships confirmed. Lengthy gaps in the leadership of America’s global diplomatic corps can undermine the integrity of U.S. foreign policy and risk national security.        Still missing, however, is America’s coordinating leadership, both in Washington and abroad, in the pursuit of international justice. Biden’s nominee for Ambassador at Large for Global Criminal Justice, Beth Van Schaack, awaits a hearing before the Senate Foreign Relations Committee and a Senate vote. This empty chair in Foggy Bottom is all the more impactful as atrocity crimes, such as genocide, crimes against humanity, and war crimes, continue to wreak havoc across the globe — mass murders and rape, ethnic cleansing, and ceaseless destruction of civilian habitats that spawn chaos and instability and shock our consciences. Awaiting the new ambassador at large is a long list of situations where U.S. leadership is needed to strengthen accountability for atrocity crimes, including in the Tigray region of Ethiopia, Syria, Yemen, Myanmar, Cameroon, the Xinjiang region of China, Venezuela, North Korea, Sudan, and South Sudan. All of these unfortunate realities are, or should be, nonpartisan as they go to the core of human existence. They demonstrate, in spades, the need to enhance U.S. multilateral leadership, intra-governmental coordination, and creative ideas about how to prevent and respond to atrocities. We know from our own respective years in this position that the leadership of the Office of Global Criminal Justice (GCJ) in the State Department is critical to help ensure that atrocity crimes, first and foremost, are rightfully focused upon and that new challenges of accountability are properly addressed. There also are justice issues being pursued before the International Court of Justice where an American judge sits, the U.N. Human Rights Council where the United States recently was elected to a seat, and in domestic courts at home and abroad. Review of a crimes against humanity bill to fill gaps in the federal criminal code also awaits Congress. The ambassador at large would help coordinate the U.S. government’s engagement on all these fronts. Van Schaack, an accomplished academic and former deputy at GCJ, will not be alone if confirmed. For example, the Senate was smart to confirm three of the senior officials who will be critical to enforcing the Uyghur Forced Labor Act: Ambassador to China R. Nicholas Burns; the State Department’s Assistant Secretary for Economic and Business Affairs, Ramin Toloui; and the Ambassador at Large for International Religious Freedom, Rashad Hussain. The Act will provide sharper economic and labor tools to address labor exploitation as part of efforts to achieve accountability and justice for the atrocity crimes committed against China’s Uyghur citizens.  We urge the Senate Foreign Relations Committee, and then the full Senate, to move quickly on this important diplomatic post, which Van Schaack would be the first woman to fill.

This year we commemorate the 75th anniversary of the verdict of the Nuremberg Tribunal: on 30 September and 1 October 1946, the International Military Tribunal (IMT) delivered its Judgement in the trial against the most high-ranking political and military leaders of the German Nazi regime. On this occasion, the Leuven Transitional Justice Blog commissioned a special series to examine the lasting legacy of the Nuremberg Trials. In this seventh instalment, David J. Scheffer looks back on the influence of the Nuremberg precedent on the subsequent drafting processes of the statutes of international courts. The influence of the London Charter and Nuremberg principles on international criminal tribunal-building since 1993 has been profound and lasting. As I wrote in my memoir, All the Missing Souls: A Personal History of the War Crimes Tribunals: “The charters of the Nuremberg and Tokyo international military tribunals were the templates for the drafting endeavours of the modern tribunals. They confirmed the core definitions of crimes against humanity and war crimes and set the stage for the Geneva Conventions in 1949. The military tribunals deprived leaders of any immunity from prosecution and soldiers of the defence of superior orders. Their charters insisted on due process protections for the defendants, regardless of how repulsive or guilty they appeared.” As a statute-drafter and negotiator on behalf of the United States Government during the 1990’s in the creation of five tribunals (the International Criminal Tribunals for former Yugoslavia (ICTY) and Rwanda (ICTR), the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court (ICC)), I relied upon the London Charter and Nuremberg principles as the opening template for fundamental principles of law and due process. The endeavour, of course, evolved with successive tribunal statutes that were negotiated and drafted, as each one built upon the experience of immediately preceding statutes.  But the London Charter and Nuremberg principles stood guard, essentially, as the gold standard that I relied upon as a reminder of the origins of international criminal law that must be engraved for the ages. During the initial weeks of the Clinton Administration in early 1993, I happened to be reading The Anatomy of the Nuremberg Trials: A Personal Memoir, by Telford Taylor, a senior U.S. prosecutor at Nuremberg. The book had just been published and I devoured it as I began my work as Senior Adviser and Counsel to the new U.S. Permanent Representative to the United Nations, Dr. Madeleine Albright. We were thrust immediately into dealing with the atrocities of the Balkans War, which I have written about in The Sit Room: In the Theater of War and Peace.  Ambassador Albright led in the U.N. Security Council to create an international criminal tribunal quickly to bring perpetrators of atrocity crimes (genocide, crimes against humanity, and war crimes) in the Balkans to justice. The precedents of the London Charter and Nuremberg principles loomed foremost in our minds as we sought, and obtained, Security Council approval and then as the statute of the ICTY was negotiated and drafted. Indeed, on 22 February 1993, which was the day Resolution 808 authorising the establishment of the ICTY was approved, Ambassador Albright told her Security Council colleagues: “There is an echo in this chamber today. The Nuremberg principles have been reaffirmed. We have preserved the long-neglected compact made by the community of civilised nations 48 years ago in San Francisco to create the United Nations and enforce the Nuremberg principles. The lesson that we are all accountable to international law may have finally taken hold in our collective memory. The debates over the state of international law that so encumbered the Nuremberg Trials will not burden this tribunal.”  I drafted those words for her with Taylor’s book on my desk, reminding me of the powerful precedent of almost a half century earlier and upon which the ICTY would be built. On 13 May 1993, Ambassador Albright convened a working session at the U.S. Mission to the United Nations in New York of academic and practitioner experts to review various draft statutes of the ICTY, as a final draft would soon be put to a vote in the Security Council. I invited Telford Taylor, who was teaching at Columbia University, to join the session. He would be the voice of Nuremberg. Taylor stressed the criticality of the documentary record that underpinned the prosecution of the Nuremberg cases. He foresaw, correctly, a more difficult task in the Balkans, where the ICTY would need to rely much more on witness testimony. One can draw a straight line between many of the London Charter provisions and what appeared in the ICTY statute. The London Charter had become well established as the plausible template for an international criminal tribunal (despite the Nuremberg court being a military tribunal) that had avoided attracting much academic or political objections over the decades since the Nuremberg Trials. That point was critical to ICTY drafters, including the U.N. lawyers who produced the final draft. To garner a unanimous Security Council vote on 25 May 1993, for Resolution 827, the argument had to prevail that the ICTY statute essentially reflected customary international law principles emerging from the London Charter. Since the major legal debate would be about whether the Security Council had the legal authority under the U.N. Charter to create an international criminal tribunal as a subsidiary organ, we wanted any concerns about the substantive character of the ICTY statute to be minimal and successfully rebuttable. So, to ground the ICTY statute in the London Charter and the legacy of Nuremberg was essential. In the drafting of the ICTR statute, one Nuremberg issue that served as a precedent for what to avoid reared its head: collective culpability. As I wrote in All the Missing Souls: “The Rwandans also wanted to cover groups as well as individuals in the tribunal statute. This would have meant that mere membership in a Hutu group, such as the National Police, Coalition for the Defence of the Republic, Democratic Republican Movement, or murderous Interahamwe, would have subjected an individual to criminal liability. The same tactic was employed in 1945 with the London Charter, which empowered the Nuremberg Tribunal to define as criminal any group or organisation to which any defendant appearing in Nuremberg belonged. In the end, the Nuremberg Tribunal declared three of six organisations named in the indictment as criminal in character. But no one else at the table wanted to go down that path in Rwanda, as it pointed toward collective culpability—precisely what we argued must not be the future of justice in the Balkans or Rwanda. The Rwandan negotiators backed down.” During the long years of negotiations leading to the Rome Statute of the ICC, the Nuremberg precedent was a persistent touchstone of reference and reliance. As the U.S. Ambassador at Large for War Crimes Issues during the second term of the Clinton Administration, I led the U.S. delegation to the U.N. talks. I vividly recall the many times that the German delegation would invoke the Nuremberg precedent to emphasise the imperative of creating the ICC, particularly with respect to the crime of aggression. The Japanese delegation, on the other hand, invoked both the Nuremberg and the Tokyo Tribunals’ precedents to emphasise the due process protections that all defendants before the ICC must be accorded. The early objection to and longstanding criticism of the Nuremberg Trials as “victor’s justice” reverberated throughout the years of negotiation of the Rome Statute and to the present day regarding the ICC. While the ICC is a broadly subscribed treaty-based institution of presumptively objective application to all individuals and nations falling within its jurisdiction, the fact that some major powers and populous nations remain outside of its reach for all intents and purposes points to the argument of impunity for the “victors”. The People’s Republic of China, United States, Russia, India, Pakistan, Turkey, Myanmar, Indonesia, Thailand, Vietnam, Saudi Arabia, Israel, Iran, South Sudan, Eritrea, or Ethiopia, for example, can play victor in their internal repression or foreign military adventures without necessarily attracting accountability before the ICC. Thus, the claim of “victor’s justice” has persisted, albeit differently conceived, with the precedent of Nuremberg its stepfather. Remarkably, one of the American prosecutors, Ben Ferencz, at Nuremberg survived long enough to have relentless influence on the creation and operation of the ICC and, in particular, the Rome Statute’s long journey to codify the crime of aggression. The aim to prosecute aggression dominated Justice Robert H. Jackson’s approach to the initial Nuremberg Trials and Ferencz carried forth that mandate as he lobbied for its inclusion in the Rome Statute. I first met Ferencz when the ICC negotiations commenced at the United Nations in 1995. He skilfully lobbied me in my role as the U.S. negotiator for years thereafter. The memory of Nuremberg shaped all that he said, including long into the 21st century as the definition of and procedural requirements to prosecute the crime of aggression finally were agreed to and codified at the Review Conference of the Rome Statute convened in Kampala, Uganda, in 2010. Nuremberg is a “forever legacy” that will continue to shape the growth of international criminal law. I have no doubt that a century from now judges will cite the London Charter, the Nuremberg principles, and the jurisprudence of the Nuremberg Trials as they render justice in the wake, tragically, of further atrocity crimes.

(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.