Joshua Childress’s reflection on whether prosecutions can occur for U.S. international crimes raises some important points. This response provides some more context for the challenge of bringing charges against U.S. officials for war crimes or crimes against humanity.
Childress convincingly explains how targeting first responders is difficult to justify under the Geneva Conventions since first responders should automatically get protection. After all, humanitarian law was founded on the belief that all militants deserve medical care, regardless of what side they are on.
Even if it is clear that first responders should not be targeted, there are a number of issues with bringing war crimes charges against U.S. officials in U.S. courts. While there is a federal statute that domesticated the Geneva Conventions, the War Crimes Act of 1996 (which was watered down with the Military Commissions Act of 2006 but still outlaws murder and intentionally causing serious bodily harm), the dilemma of whom to charge remains. More importantly, there are issues of evidence if these cases are tried domestically. Obtaining evidence from abroad is very difficult because of concerns about chain of custody and witness testimony. Courts are reluctant to allow in evidence if it cannot be authenticated (basically, if there is doubt that the document or other piece of evidence is what one party says it is), and authentication is very difficult with evidence gathered abroad. Courts are also concerned about evidence that has passed through multiple hands, again because of concerns about authentication.
Partly because of evidentiary issues, there have been no federal prosecutions in U.S. courts for war crimes committed abroad. In addition to the challenges mentioned above, judges also do not like to use video conferencing or other technologies for foreign witnesses because it limits the ability of the accused to cross-examine the testimony in front of the jury. Trials that bring witnesses from abroad are very costly, and a federal prosecutor may be reluctant to expend those resources if the case is not a slam-dunk.
Next, Childress points out that there are many examples of government officials challenging U.S. policy in courts. The examples that he points to are state officials bringing cases against federal officials, and even an individual suing the federal government for its war against ISIS. Tellingly, that latter suit was thrown out because the individual did not have standing.
The dilemma is that the War Crimes Act of 1996 is a federal law. State prosecutors cannot bring cases involving federal law, and there are no parallel state statues that I am aware of that codify war crimes. This leads back to my original argument: a federal prosecutor would have to bring a case against someone else in the executive branch. This may happen in the future, but not presently.
Finally, Childress points out that President Donald Trump is developing his border policies with malice. This may be the case, but it doesn’t automatically lead to an interpretation that the acts amount to a crime against humanity. Under the most authoritative definition from the International Criminal Court, the acts have to be part of a systematic and widespread attack against civilians. Yes, it’s rhetorically wise to refer to it as a crime against humanity, and the detention policies are horrible, but many acts are framed as international crimes when courts disagree. Genocide, for example, is frequently used to describe to mass killing even though it has a specific meaning in the law. Cases for genocide against communists, for example, are recognized in some international courts but not others because laws against genocide do not always protect groups defined by their political thought.
In the end, no one is denying that these are atrocious acts. The challenge, as I see it, is using the very weak domestic and international legal system the United States has to address them as international crimes.