| by Beth Van Schaack

( May 22, 2014, Washington DC , Sri Lanka Guardian) Ryan Goodman’s post on Sri Lanka calls for the prosecution under U.S. law of Gotabaya Rajapaksa. In prior posts, we’ve discussed the way in which international crimes (including war crimes) have been incorporated into U.S. law. By way of background, this post offers a primer on the U.S. War Crimes Act, 18 U.S.C. §2441.

The statute was enacted in 1996. Following the revelations of custodial abuses being committed at Abu Ghraib and the Supreme Court’s ruling in Hamdan v. Rumsfeld that the “Global War on Terror” constituted a non-international armed conflict, Congress substantively amended the War Crimes Act in 2006 to diminish the potential for prosecutions of U.S. personnel for war crimes (in ways not really relevant to any potential Rajapaksa prosecution) with the passage of the Military Commissions Act (MCA). The statute allows for the prosecution of war crimes committed abroad, but only if the perpetrator or victim is a U.S. citizen or member of the U.S. Armed Forces:

(a) Offense.—Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances.—The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States….

As mentioned in a prior post, it is notable (and regrettable) that our war crimes statute allows for the exercise of nationality jurisdiction only: the victim or perpetrators must be a U.S. national or member of the U.S. armed forces. When Congress was debating the War Crimes Act in the mid-1990s, both the Department of Defense (see the letter from General Counsel Judith Miller and testimony of John H. McNeill, Senior Deputy General Counsel) and the Department of State (see the testimony of Michael J. Matheson, Principal Deputy Legal Adviser, and letter by Barbara Larkin, Acting Assistant Secretary, Legislative Affairs) argued to Congress that the U.S. should allow for the prosecution of any individual present in the United States in order to be in compliance with the 1949 Geneva Conventions; the Department of Justice resisted on the ground that extraterritorial cases are difficult. President Clinton, upon signing the statute into law, expressed a commitment to work with Congress to expand the scope of the legislation to enable the prosecution of war crimes committed by any person who comes within the jurisdiction of U.S. courts. That has yet to happen, but in any case the current nationality requirement is easily satisfied given Rajapaksa’s U.S. citizenship.

In terms of prosecutable violations, the statute actually goes much farther than the 1949 Geneva Conventions in terms of allowing for the prosecution of war crimes committed in non-international armed conflicts (NIACs). While common Article 3 (CA3) of those treaties (so named because it is common to all four Geneva Conventions) prohibits certain conduct when committed within a NIAC, it does not create—or mandate the creation of—a penal regime. Nonetheless, the United States included these violations in its war crimes statute (although the MCA de-criminalized two acts prohibited by CA3). As a result, the United States can prosecute the following crimes when committed in a NIAC, all of which were implicated in the Sri Lankan civil war:

Cruel or inhuman treatment
Mutilation or Maiming
Intentionally causing serious bodily injury
Sexual assault or abuse
Taking hostages

The Department of Justice’s Human Rights & Special Prosecutions (HRSP) section would have the lead on coordinating any Rajapaksa prosecution. HRSP is headed by former International Criminal Tribunal for the former Yugoslavia (ICTY) Senior Trial Counsel, Teresa McHenry, and is staffed by several other international criminal lawyers, including Eli Rosenbaum, who has worked for years to identify, denaturalize, and deport Nazi war criminals within the United States. The HRSP office was formed in 2010 when the Office of Special Investigations (OSI)—which had the Nazi brief under Rosenbaum—was merged with the Domestic Security Section—which handled other contemporary human rights crimes under McHenry—within the Criminal Division of the Department of Justice (DOJ). With local U.S. attorneys as well as the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) Human Rights Violators and War Crime Unit (HRVWCU), HRSP coordinates the prosecution of individuals accused of committing a host of international crimes (including torture, the use/recruitment of child soldiers, war crimes, trafficking, and genocide). (A list of cases is here and here). HRSP and HRVWCU also handle prosecutions under a range of immigration statutes that allow the U.S. government to denaturalize, deport, or pursue other remedies against individuals who committed fraud during an immigration proceeding or process, including while completing visa forms to come to the United States. These immigration statutes are utilized when it is impossible to prosecute the person for the underlying substantive crime due to some constitutional or other impediment (such as the prohibition against ex post facto prosecutions).

So, for example, the U.S. government had to prosecute Rwandan Prudence Kantengwa for immigration fraud, perjury, and obstruction of justice because the genocide in Rwanda pre-dated a 2007 amendment to the genocide statute, 18 U.S.C. § 1091, extending universal jurisdiction over the crime. The charges reflect the fact that the defendant provided false information about her role in the Rwandan genocide to U.S. officials when she completed a background questionnaire for immigration purposes. Likewise, Jorge Sosa was convicted of covering up his involvement in the 1982 Dos Erres massacre in Guatemala when he applied for lawful permanent residence in 1997 and naturalization in 2007. He fled to Canada, but was extradited to California in 2012 to stand trial. These convictions, while not carrying the stigma of international criminal law, do serve the important purpose of preventing the United States from becoming a safe haven for human rights abusers. The HRSP section also assists with the extradition of individuals facing charges elsewhere.

The War Crimes Act has no statute of limitations, so the passage of time will not impede prosecutions. (International law contains no statute of limitations for international crimes generally). Approval from the Assistant Attorney General (AAG) or his/her designee is required, however, before any prosecution can go forward (see Sec. 9-2.139 of the U.S. Attorneys’ Manual).

As we have detailed in a prior post, the war crimes committed during the final days of the Sri Lankan civil war, as well as post-war abuses, have already been well documented. This includes reports of the U.N. Secretary-General’s Panel of Experts, the U.S. State Department (disclosure: my former office produced these congressional reports), and NGOs (e.g., the International Crisis Group and the International Crimes Evidence Project). In addition, the High Commissioner for Human Rights has initiated an independent and impartial investigation into the human rights situation in Sri Lanka, including the commission of violations and abuses during the war. It is clear that investigations are happening within the United States as well. In order for any charges under U.S. law to go forward, however, Rajapaksa would have to be found in, or extradited to, the United States. That said, pursuing charges would go far toward limiting Rajapaksa’s freedom of movement, at least to countries that have an extradition treaty with the United States.

ABOUT THE AUTHOR : Beth Van Schaack is a Visiting Scholar at the Center for International Security & Cooperation at Stanford University and a Professor of Law at Santa Clara University School of Law. She was formerly the Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own and not those of the State Department.