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US
STATUTORY ANALOGUES TO ARTICLE 5 CRIMES
For detailed information on US criminal jurisdiction over
ICC crimes see:
War Crimes
Some but not all war crimes may be prosecuted by US civil
courts, whether committed within or outside of the US, but
only when:
- the victim is a US national or member of the US armed
forces (18 USC §
2441[b]), or
- the perpetrator is a former service member or a civilian
accompanying the military overseas (18
USC §§ 3261–3267).
US Military courts have universal jurisdiction over war crimes
to the extent permitted by international law, with the exception
of some cases involving civilians.
- GRAVE BREACHES OF GENEVA CONVENTIONS, Rome Statute
Article 8(2)(a): 18 USC
§ 2441(c)(1) defines war crimes as conduct "defined
as a grave breach in any of the international conventions
signed at Geneva 12 August 1949, or any protocol to such
convention to which the United States is a party."
- OTHER SERIOUS VIOLATIONS OF THE LAWS AND CUSTOMS APPLICABLE
IN INTERNATIONAL ARMED CONFLICT, Rome Statute Article
8(2)(b): 18 USC §§
2441(c)(1), (2), (3). 18 USC § 2441(c)(2) specifically
defines a war crime as conduct "prohibited by Article 23,
25, 27, or 28 of the Annex to the Hague Convention IV, Respecting
the Laws and Customs of War on Land, signed 18 October 1907."
- CASES OF AN ARMED CONFLICT NOT OF INTERNATIONAL CHARACTER,
Rome Statute Articles 8(2)(c), (e): 18
USC § 2441(c)(3), defines war crimes of non-international
armed conflict as conduct "which constitutes a violation
of common Article 3 of the international conventions signed
at Geneva, 12 August 1949, or any protocol to such convention
to which the United States is a party".
- WAR CRIMES COMMITTED BY OR AGAINST MEMBERS OF US ARMED
FORCES OR A US NATIONAL, Rome Statute Article 8 generally:
18 USC §§
3261–3267 extends jurisdiction to cover certain
military and civilian persons who while "employed by or
accompanying the Armed Forces outside the United States
or while [members] of the Armed Forces" commit serious crimes
under Title 18 (if such acts would be crimes if committed
within the jurisdiction of the US), excluding civilians
who are "national[s] of or ordinarily resident in the host
nation" and active military members unless the crimes has
been committed with one or more civilian defendant. Former
military members are also covered. These statutes also allow
for the extradition of such individuals to the country where
the crime occurred under applicable treaties and international
agreements.
Crimes Against Humanity
The United States does not have any statutory provisions
that specifically address the concept of "crimes against humanity."
If committed in the US or by members of the US military most
Article 7 crimes would violate domestic US criminal or military
laws. If committed outside of the US, such crimes may be prosecuted
in US civil courts only if they involve torture, attempted
torture, or certain forms of international terrorism.
- MURDER, Rome Statute Article 7(1)(a):
- 18 USC § 32,
acts of violence against aircraft and individuals on
aircrafts where such acts will likely endanger the safety
of the aircraft.
- 18 USC § 33,
destruction of persons operating or maintaining motor
vehicles committed with the "intent to endanger the
safety of any person on board or anyone who believes
will board."
- 18 USC § 37,
violence at international airports.
- 18 USC § 115,
murder of immediate family members of US officials,
judges, law enforcement officers, etc., with the intent
to interfere with, intimidate, or retaliate against
such an official, while engaged in performance of official
duties or with intent to retaliate against him or her.
- 18 USC § 844(f)(3),
action causing malicious damage to or destruction of
any building, vehicle or other personal or real property
owned or possessed or leased by the US by means of fire
or explosive.
- 18 USC § 930(c),
killing of a person by someone knowingly possessing
or causing to be present firearms or other dangerous
weapons in a federal facility or in the course of an
attack on such a facility.
- 18 USC § 1111,
"murder" defined as "unlawful killing of a human being
with malice aforethought."
- 18 USC § 1114,
killing of any officer or employee of the US or any
agency thereof while such an officer or employee is
engaged in official duties and anyone assisting them.
- 18 USC §§ 112,
878, 1116,
threats and violence against a foreign official, official
guest, or internationally protected person.
- 18 USC § 1119,
murder of a US national by a US national outside the
United States.
- 18 USC § 1203,
hostage taking.
- 18 USC § 1651,
piracy (not necessarily including murder) as defined
by the law of nations, committed on the high seas.
- 18 USC § 1652,
murder or any act of hostility against US citizens committed
by a citizen of the US on the high seas under color
of authority of any state.
- 18 USC § 1653,
acts of piracy by aliens.
- 18 USC § 2280,
violence against ships.
- 18 USC § 2281,
violence fixed maritime platforms.
- 18 USC § 2332,
killing of a US national while outside of the US.
- 18 USC § 2332(a),
unlawful use of weapons of mass destruction (other than
chemical weapons).
- 18 USC § 2332(b),
acts of terrorism transcending national boundaries.
- EXTERMINATION, Rome Statute Article 7(1)(b): No
specific US statutory provision covers extermination. However,
18 USC § 242 (deprivation
of rights under color of law) punishes those individuals
who willfully subjects those individuals to the deprivation
of any rights, privileges, or immunities secured or protected
by the Constitution or laws of the United States on account
of race, color or alienage.
- ENSLAVEMENT, Rome Statute Article 7(1)(c): Comparable
US statutory provisions in Title 18, Chapter 77 (Peonage
and Slavery) include:
- 18 USC § 1581,
holding or returning a person to a condition of peonage;
arresting any person with intent to return him or her
to such status; or obstructing enforcement of this section.
- 18 USC § 1582,
preparing or sailing vessels for slave trade.
- 18 USC § 1583,
enticement into slavery.
- 18 USC § 1584,
sale into involuntary servitude.
- 18 USC § 1585,
seizure, detention, transportation of persons from a
foreign shore with the intent to make them a slave.
- 18 USC § 1586,
voluntary service on vessels involved in the slave.
- 18 USC § 1587,
penalizing captains, master or commanders of a vessel
that has a slave on board.
- 18 USC § 1588,
penalizing those masters, owners or persons of any vessel
who receives on board any person with the knowledge
or intent that he or she is to be taken outside of the
US to be held or sold as a slave.
- 18 USC § 242,
the willful subjection of individuals to the deprivation
of any rights, privileges or immunities guaranteed under
the color of law.
- DEPORTATION, Rome Statute Article 7(1)(d): The
only comparable statutory provision is 18
USC § 1201, which covers the unlawful seizing,
confining, inveigling, decoying, kidnapping, abducting or
carrying away and holding for ransom or reward "or otherwise"
any person, or conspiracies or attempts to do the same.
- IMPRISONMENT, Rome Statute Article 7(1)(e): Analogous
US law includes 18 USC
§ 242, as discussed above under "Enslavement"
and 18 USC § 1201,
as discussed above under "Deportation".
- TORTURE, Rome Statute Article 7(1)(f): 18
USC § 2340(A) similarly defines torture "as an
act committed by a person acting under the color of law
specifically intended to inflict severe physical or mental
pain or suffering (other than pain or suffering incidental
to lawful sanctions) upon another person within his custody
or physical control."
- RAPE, SEXUAL SLAVERY, ENFORCED PROSTITUTION, FORCED
PREGNANCY, ENFORCED STERILIZATION, Rome Statute Article
7(1)(g):
- 18 USC § 2421,
knowingly transporting any individual with the intent
that such an individual engage in prostitution or any
sexual activity for which a person can be charged with
a criminal offense.
- 18 USC § 2422,
knowingly persuading, inducing, enticing or coercing
any individual to travel to engage in prostitution or
any sexual activity for which a person can be charged
with a criminal offense.
- 18 USC § 2423,
knowingly transporting an individual under 18 years
of age with the intent that he or she engage in prostitution
or any sexual activity for which a person can be charged
with a criminal offense.
Genocide
18 USC § 1091(d)
allows prosecution for genocide by US courts only if the crime
is committed in the US or the offender is a US national.
US
CASE LAW CITING TO ROME STATUTE
At the June 12, 2003 open Security Council meeting on the
renewal of SC Resolution 1422 (providing immunity from the
jurisdiction of the ICC to peacekeepers from non-state parties),
US Ambassador James Cunningham said that, "[t]he
ICC is not "the law." However, there are ten
US federal judicial cases from as long ago as 1999 and
as recent as December 2003 that cite to the ICC's Rome Statute
as an authoritative statement of the law. They come from several
different district courts as well as the Ninth and Eleventh
Circuits. Notable highlights include:
- US v. Duarte-Acero, in which the Eleventh Circuit
contrasted International Covenant on Civil and Political
Rights (ICCPR) Article 14(7)'s allowance of successive prosecutions
in different countries with the ICC Draft Statute of 1994's
prohibition of trials before any other court for criminal
acts for which that person has been tried by the ICC.
- Ford v. Garcia, in which the Eleventh Circuit referred
to Rome Statute Article 28 to support its finding of plain
error in the giving of a command responsibility instruction.
- Wiwa v. Royal Dutch Petroleum et al., in which
the US District Court for the Southern District Court of
New York referred to Rome Statute Article 7 as an authoritative
definition of crimes against humanity and determined that
the facts of the case satisfied that definition.
- Mehinovic et al. v. Vuckovic, in which the US District
Court for the Northern District of Georgia referred to Rome
Statute Article 7 as an authoritative definition of crimes
against humanity, including the crime of rape; referred
to Article 5 as an example of the absolute prohibition on
genocide; and referred to Article 25 to demonstrate that
it is well established that those who "assist in the commission
of acts prohibited by international law may be held individually
responsible."
- Tachiona v. Mugabe, in which the US District Court
for the Southern District of New York referred to Rome Statute
Article 27 as authoritative evidence that foreign government
agents no longer have absolute defenses against litigation
"challenging their private conduct as crimes against humanity
or other egregious abuses of human rights contravening international
norms."
- Presbyterian Church of Sudan v. Talisman Energy,
in which the US District Court for the Southern District
of New York reproduced Rome Statute Article 25(3) in its
entirety to demonstrate the well established nature of complicit
liability (including solicitation, inducement, aiding and
abetting, etc.) for international law violations.
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