I posted earlier on Senator Dick Durbin's proposed Crimes Against Humanity Act. It incorporates crimes against humanity into US law and provides for extra-territorial jurisdiction for any suspects subsequently found in the US.
It's a great step forward, albeit largely unnoticed in all the febrile debate about whether the US will join the International Criminal Court (a highly unlikely scenario in the next couple of decades given the need for Senate approval).
But will it be retrospective? I.e. could suspects from Rwanda (1994), Darfur (2003-), Cambodia (1975-79), or Liberia (1989-2003) be prosecuted in the US if they travel there? Or will the new law only apply from 2009 onwards?
The first hurdle is that in the USA retroactive legislation is unconstitutional under Article 1, Section 9 of the constitution. The US isn't alone in this - most countries prohit retroactive law making, and it's specifically prohibited by both the European Convention on Human Rights (Article 7) and the International Covenant on Civil and Political Rights (Article 15). However in both the ECHR and the ICCPR a specific exemption is made for atrocity crimes:
This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. [ECHR, Art 7.2]
In the UK we've been campaigning, succesfully, for the retrospective application of the jurisdiction of English courts over war crimes, crimes against humanity and genocide. Hitherto English law has applied prospectively from 2001, the date of our International Criminal Court Act. The British government has announced that it will change the law so jurisdiction will apply from 1991, following the example set by New Zealand. (The 1st January 1991 was chosen as the date from which the UN Security Council, when setting up the International Criminal Tribunal for the former Yugoslavia, definitively codified international law on crimes against humanity. I.e. from 1991 its beyond doubt that crimes against humanity were 'criminal according to the general principles of law recognised by civilised nations'. (A full discussion of retrospectivity, the ECHR, the ICCPR and international law can be found in our report: Suspected War Criminals and Genocidaires in the UK). )
The UK isn't alone: our colleagues at TRIAL in Switzerland are today testifying in the Swiss Senate about retrospectivity, and Senegal recently changed its constitution to allow for te retrospective application of jurisdiction.
And the US? Well it's not clear yet. The following exchange in the debate on the Genocide Accountability Act 2007 is illuminating:
MR PENCE: Mr. Speaker, I would like to engage in a colloquy on an issue affecting this legislation with the gentleman from California, Mr. BERMAN. Our legislation, H.R. 2489, and S. 888 are identical bills, as you know. But during the Crime Subcommittee hearingon H.R. 2489, a witness from the Departmentof Justice theorized that the changes proposed by this bill might constitute a violation of the ex post facto clauses of article I of the Constitutionin some cases. Let me ask you, if this legislation becomes law, Mr. BERMAN, would we be able to use it to prosecute a non-U.S. national taking part in the genocide in Darfur today? I yield to the gentleman from California.
Mr. BERMAN. I thank the gentleman for his question and yielding to me and appreciate his comments and partnership on this bill. In response, I would say that the genocide in Darfur is an ongoing crime. The House recognized it as such over 2 years ago, and there is no question that this crime continues today. We believe that ex post facto clearly would not apply in this situation.
Mr. PENCE. I thank the gentlemanfor clarifying that. Lastly, going back to that specific hypothesis from the witness from the Department of Justice, if this new law were used to prosecute a perpetrator of a past genocide, the assertion was it may constitute an ex post facto violation of the Constitution. Do you agree with that hypothesis?
Mr. BERMAN. The gentleman raises an important issue, and I do not agree with that hypothesis. I think the witness from the Department of Justice was offering a spontaneous and personal opinion, which he was careful to label as such, and not an official interpretation by the Department.
When we crafted this bill, we were careful to write it as narrowly and precisely as possible. We were and remain interested only in changing the circumstances under which certain parties may be charged under the genocide statute. Our intent is to make a procedural alteration to the current law and leave everything else in the statute untouched.
In determining whether or not a law presents a violation of the ex post facto clauses of the Constitution, courts have generally considered whether the new law: one, places the defendant at a substantial disadvantage compared to the law as it stood when he committed the crime of which he has been convicted; secondly, changes the definition of the crime; or three, increases the maximum penalty for it. The Genocide Accountability Act doesn't alter in anyway either the elements or the punishment for the crime of genocide.
The underlying notion here is that the defendant should be on notice that his actions constituted a crime. I think it would be very difficult for anyone to argue that the world is not on notice that we consider and have considered for many years genocide a crime. The United States has recognized genocide as a crime for nearly 60 years as a signatory of the Genocide Convention.
Neither do we make any change that would deprive one charged with the crime of any defense that is now available under the law. It is important to add that the Supreme Court has found a key exception to the ex post facto rule where changes to a law are procedural in nature.
In numerous decisions, the court has held that where a law involves changes in the procedures by which a criminal case is adjudicated as opposed to changes in the substantive laws of crimes, and I quote that phrase directly, that does not deprive a defendant of substantial legal protections, then it is constitutional.
It is our conclusion that this bill falls within that exception and makes only procedural changes to the law. So it was our intent that this law be used to prosecute perpetrators of genocide who are on notice that their acts constitute a crime wherever it was committed.
Mr. PENCE. I thank the gentleman for his response.
It may be that for tactical reasons the framers of the Crimes Against Humanity Act wish to rely on the same reasoning and not be specific on whether the Act will be retrospective in its effect - leaving it to the courts to sort out. However, even if only to have greater certainty in the law, is it not better to be upfront and introduce an amendment to specifically state the date at which each act is deemed to be a crime?
