Counselor for War Crimes Accountability Eli M. Rosenbaum Opening Statement Before the Senate Judiciary Committee at a Hearing Titled, “From Nuremberg to Ukraine: Accountability for War Crimes and Crimes Against Humanity”

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Opening Statement as Prepared for Delivery

Thank you, Chairman and Ranking Member, for inviting the Department of Justice to address gaps in federal law that significantly limit our ability to bring war criminals and perpetrators of human rights crimes to justice.

Given the shocking crimes being perpetrated by Russia during its unprovoked war against Ukraine, this hearing could not possibly be held at a more appropriate, urgent, or, frankly, terrifying time.

The Justice Department is committed to holding the perpetrators of such grave crimes fully accountable. During a trip to Ukraine in June, Attorney General Garland announced the creation of the Department’s War Crimes Accountability Team, to centralize and strengthen our Ukraine accountability efforts, and he asked me to lead it. 

Unfortunately, however, the Title 18 war crimes statute does not cover the vast majority of war criminals who have come to the United States, who are here, or who will eventually come here – because it confers jurisdiction only when a victim or perpetrator is a U.S. person, not on the basis that the perpetrator has immigrated to our country or is otherwise on U.S. soil. The statute also contains other provisions that limit our ability to enforce it.

Having prosecuted World War II Nazi cases for nearly four decades, I can attest to the deep frustration we experienced because statutory limitations like those made it impossible to criminally prosecute any of the many Nazi criminals we found here. Instead, we could bring only civil actions against them. Russian and other war criminals who come here should not be able similarly to escape criminal justice or even find safe haven here.

There’s a second major gap: the federal torture statute doesn’t confer jurisdiction based on the victim’s U.S. nationality. Thus, even if a civilian U.S. citizen or a U.S. military servicemember becomes a victim of torture abroad under color of law, the U.S. ordinarily has no jurisdiction to prosecute unless the perpetrator is a U.S. citizen or is subsequently present here.

And there’s a third major gap: we don’t have a statute criminalizing “crimes against humanity.” Such laws – the first of which the United States famously co-prosecuted at the post-World War II Nuremberg trials – allow for the prosecution of certain criminal acts, such as enslavement or mass murder, when committed as part of a systematic or widespread attack against a civilian population, even if those acts occur outside the context of an armed conflict or a genocide. War crimes and genocide statutes alone simply are not sufficient to address the full and tragic array of large-scale atrocity crimes that continue to beset the world. I would be pleased to provide examples of infamous and horrific crimes that are beyond federal prosecutors’ reach in the absence of a crimes against humanity statute.  

The Departments of Defense, Homeland Security, State, and Justice, among other agencies, have agreed on technical solutions that would fill all three gaps that I’ve just mentioned. If those gaps are filled, the Justice Department can play, and is eager to play, a much fuller role in the crucial effort to make the post-Holocaust imperative “Never Again” a reality, not just an endlessly unrealized aspiration. 

Thank you, Chairman and Ranking Member, for affording me the opportunity to testify here today. I would be pleased to respond to questions.

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