With no laws to prosecute war criminals who live in the United States seeking safe haven after committing crimes against humanity abroad, Washington has begun to take action against criticism of its objections to the International Criminal Court (ICC). A Senate Judiciary subcommittee heard testimony this week to plug that loophole from a panel ranging from international lawyers to high-profile Darfur activists like American Olympic speed skater Joey Cheek and actress Mia Farrow. They are seeking stronger solutions for pursuing perpetrators still at large and speaking out against the Khartoum government’s efforts to shield government officials accused of perpetrating mass crimes of rape and murder in western Sudan. One of those testifying, American University law professor Diane Orentlicher, says  that the atrocities being committed in Darfur illustrate that the time has come for the United States to take a more serious look at efforts to apprehend war criminals.

“What is significant about crimes against humanity is that they’re atrocities that are targeted against civilians. They’re not simply acts of war, but the target is civilians themselves,” she points out.

Although US support for prosecution of crimes against humanity dates back to World War Two and extends to curbing more recent upheavals in Rwanda, Yugoslavia, and Sierra Leone, there is no law on the books to prosecute persons responsible for mass atrocities that do not fall under the definition of genocide, torture or other select human rights violations. Professor Orentlicher says that the Bush administration made great strides to bridge this ambiguity with last year’s passage of the Genocide Accountability Act to steer American citizens, companies and government agencies away from conducting business with foreign regimes like Sudan that promote attacks against their own population. Beyond this, she says, it discourages war criminals from going on the run.

“It means from now on, if someone commits genocide and comes to the United States, we can prosecute them for genocide if we cannot send them to another place where they will be prosecuted. It is, of course, part of the mandate of the International Criminal Court itself to prosecute cases of genocide under cases that fall within the jurisdiction of the International Criminal Court, but that court did not create the crime of genocide. The crime of genocide emerged out of World War Two, and the United States has been a party to the genocide convention for 20 years. So our commitment to punishing genocide predates the commitment of the International Criminal Court’s to do the same thing. But the goals are quite similar and compatible,” she notes.

On the question of two Sudanese government officials who have been indicted by the ICC for perpetrating crimes in Darfur, Orentlicher cautions that the international community needs to act more forcefully to support those prosecutions.

“These two men enjoy just an astonishing freedom of movement, and the international community created a mandate for the International Criminal Court to prosecute these atrocities and then has for the most part left the court without any kind of serious support to carry out its mandate, and we need to change that. There needs to be serious pressure on the government of Sudan to surrender the two people who have been indicted,” she said.

The creation of a Senate subcommittee on Human Rights and the Law in January of last year has resulted in efforts by its chairman, Illinois Senator Dick Durbin, to hold hearings on crimes against humanity in an effort to focus American concerns around holding perpetrators accountable under US law. Such crimes include murder, rape, enslavement, extermination, ethnic cleansing, and arbitrary detention. A substantial portion of this week’s hearing focused on the crisis in Darfur, where hundreds of thousands of people have been murdered and several million have lost their homes and local communities. Professor Orentlicher says that a historical reluctance to prosecute these offenses on American shores stems from a mistrust of international political motives for going after accused war criminals, but that that attitude is starting to change.

“At the time the United States entered its strongest objections to the work of the International Criminal Court, it was a brand new institution, and there were a lot of concerns within the US government about how it would operate. There were concerns in particular that the institution would operate as an anti-American body and that it wouldn’t operate in accordance with appropriate principles of independence and would act instead in a politically motivated way. We now know that that’s not how it has operated. The United States has had absolutely no grounds in practice to be concerned with the way the court has operated, and in fact, I think its practice over the last few years has gone a long way toward alleviating American anxieties about the court,” she reasons.

The ICC track record in prosecuting cases against offenders from Serbia to Rwanda to Sierra Leone has prompted Washington not to oppose and block the referral of the Darfur situation to court headquarters at the Hague and has encouraged testimony that could lead to what Senator Durbin and others hope will result in new legislation to address crimes against humanity.                

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