Opinio Juris

Well, two experts on the Darfur conflict in Sudan think so. More evidence for my argument with Kevin (and Angelina Jolie) about the downside of the ICC actions in Sudan.

Is the International Criminal Court losing its way in Darfur? We fear it is. Chief prosecutor Luis Moreno-Ocampo's approach is fraught with risk -- for the victims of the atrocities in Darfur, for the prospects for peace in Sudan and for the prosecution itself.

We are worried by two aspects of Ocampo's approach, as presented to the U.N. Security Council early this month. One concerns fact: Sudan's government has committed heinous crimes, but Ocampo's comparison of it with Nazi Germany is an exaggeration. The other concerns political consequences: Indicting a senior government figure would be an immense symbolic victory for Darfurians. But Darfur residents need peace, security and deliverable justice more than they need a moment of jubilation. And with President Omar Hassan al-Bashir and his men still in power, a high-level indictment would probably damage all these objectives.

It seems like a no brainer that the U.S. should enact into domestic law punishments for "crimes against humanity." The recently created subcommittee on Human Rights and the Law of the U.S. Senate Judiciary Committee held a hearing yesterday to hear one-sided testimony on this question.

And really, is there any objection to enacting a statute making a crime under U.S. law to commit a crime against humanity? It goes without saying that such a criminal statute, to be truly useful, would require the U.S. to assert some pretty expansive theories of jurisdiction, maybe even universal jurisdiction. (The recent amendments to the statute punishing genocide have arguably done that). But this is probably not a real objection. If any crime supports the assertion of universal jurisdiction, I would think "crimes against humanity" would suffice.

As some of the testimony at the hearing suggested, the practical need for such a law is driven by the difficulty in proving the crime of genocide, especially the specific intent component of genocide (See Prof. Diane Orentlicher's testimony here for this argument).

Interestingly, none of the testimony (as far as I know) pointed out that while there is no criminal punishment in U.S. law for crimes against humanity, there is a civil sanction: a civil lawsuit under the Alien Tort Statute. As a longstanding critic of the ATS, I would prefer the criminal punishment, of course, but given the higher standards of proof required for a criminal prosecution, I don't really buy the claim that folks committing crimes against humanity can wander the U.S. in impunity. In other words, I highly doubt there will be any additional deterrence effect created by adding a criminal sanction to the civil sanction. To some degree, therefore, this whole hearing was grandstanding by the Senators so they could tell themselves that they are doing something about Darfur (when in fact they are pretty much doing nothing to help prevent further deaths in Sudan).

Still, I have to applaud the Senate's interest and the signs of congressional leadership on the incorporation of international law norms into U.S. law. Congress, I have argued elsewhere, is the proper institution for incorporating such norms (and not the courts) so it is nice to see Congress stepping up to its responsibilities here to develop international law, even if they aren't doing much at this point to protect international human rights in Sudan.