This is a contribution to a feshrift devoted to Professor William Schabas. It takes as its starting point President Obama's atrocities prevention and response initiative, a key product of which has been a concerted inter-agency effort to improve the United States' ability to prosecute atrocity crimes by closing gaps in our penal and immigration codes and preventing this country from serving as a safe haven for abusers. A quick survey of Title 18 reveals three obvious gaps in the federal penal code: the United States lacks a crimes against humanity statute, the war crimes statute has a limited jurisdictional reach and does not conform to U.S. obligations under the 1949 Geneva Conventions, and the list of chargeable forms of responsibility excludes express mention of superior responsibility. These gaps significantly hinder the reach of the United States' prosecutorial authorities and have led to instances of impunity, and incomplete accountability, where perpetrators in our midst cannot be prosecuted for their substantive crimes and must be dealt with through immigration and other remedies — a distant second-best option when crimes against humanity are at issue.
Through the platform of the Atrocities Prevention Board, the Obama Administration should work with Congress to rectify these statutory shortcomings, and a domestic crimes against humanity statute should be the first priority. That Congress is now Republican-controlled is no barrier to such reforms; indeed, much of the international criminal law that is now found in the U.S. code enjoyed broad bipartisan support and was, in fact, enacted during Republican administrations. The real challenge will be to overcome the deep-seated anti-cooperative ethos that has descended upon Congress. And yet, improving the ability of the United States to prosecute those who would commit crimes against humanity offers a sliver of common ground to lawmakers hailing from both sides of the aisle. Inspired by the same ideals that have undergirded all of Professor Schabas's work, the United States government should take advantage of this clear consensus to strengthen the United States' prosecutorial authorities in the service of atrocities prevention and response.
Download the paper from SSRN.