Excerpted From: Elena Baylis, White Supremacy, Police Brutality, and Family Separation: Preventing Crimes Against Humanity Within the United States, 2022 University of Illinois Law Review 1475 (344 Footnotes) (Full Document)


ElenaBaylisThe United States has long acted as though it is safe from crimes against humanity occurring within its borders. Confident in its democratic traditions, constitutional norms, and commitment to the rule of law, it has treated mass atrocities as a danger that arises elsewhere, under authoritarian regimes or in wartorn states. Indeed, the United States considers itself a world leader in opposing crimes against humanity, genocide, and war crimes, regularly condemning these atrocities when committed by foreign governments and non-state actors.

But in fact, there is a real and growing risk of crimes against humanity within the United States, as illustrated by several paradigmatic events:

White supremacist and extremist violence: White supremacist and other extremist groups have escalated their hate speech, threats, and public displays of force from a deadly rally in Charlottesville in 2017 to an insurrectionist attack on the U.S. Capitol in 2021, in which the attackers carried Confederate flags, assaulted and killed police officers, and planned to murder the Vice President and Members of Congress;

Family separation policy: U.S. Customs and Border Patrol officers took thousands of immigrant children from their parents at the southern border of the United States in 2018, without tracking their family identities or locations, leaving many of these children still separated from their families today;

Sexual assaults against detainees: There have been thousands of allegations of sexual assaults by U.S. Department of Homeland Security (“DHS”) officers against immigrants in custody and detention that have gone uninvestigated by DHS; and

Racist police brutality: Systemic police brutality against Black Americans has persisted despite massive, nationwide, public protests, leaving Black Americans more than twice as likely as White Americans to be killed by police, regardless of the surrounding circumstances or any other relevant factors.

Furthermore, these developments are not momentary aberrations. Rather, they are the result of intensifying structural and contextual risk factors that are embedded in U.S. society and government institutions, like systemic racism, insufficient oversight in government agencies, and political movements that feed on nationalism and xenophobia. In addition, while the United States has a robust domestic legal system with ample constitutional protections and a complex administrative state with a high capacity for self-regulation, these existing protections have not controlled this escalating risk.

Although the risk of crimes against humanity is substantial, the United States does not have a federal law prohibiting crimes against humanity, nor any other protective mechanisms directly aimed at preventing crimes against humanity within its borders. In principle, a federal law could provide a comprehensive legal framework for protecting against crimes against humanity within the United States. Such a law might address gaps in existing criminal and constitutional law and afford a backstop against misuse of political authority. It could also serve an expressive function, furnishing a mechanism for condemning the concerned acts in the strongest possible terms. But the long history of treating mass atrocities as an international rather than a domestic issue and the wellknown U.S. resistance to domesticating international law have made it difficult to garner support for a federal crimes against humanity law; a past, failed attempt to pass crimes against humanity legislation produced a problematic bill that deviated in crucial ways from international law. Once instigated, crimes against humanity are difficult to interrupt and impossible to fully redress. Accordingly, it is vital to establish systemic legal and institutional safeguards in advance, while the risk of crimes against humanity is foreseeable but not inevitable.

This Article engages with these issues at the intersection of international and domestic law. It first applies international law to define crimes against humanity and assess the risk of crimes against humanity occurring within the United States. It then turns to domestic law to evaluate the potential for a federal law or other federal measures to protect against crimes against humanity, including the political obstacles, the likelihood that any future legislation will depart significantly from international law, and the implications for effectiveness.

This Article contributes to the legal scholarship in these areas in several ways. It is the first to systematically and comprehensively assess the risk of crimes against humanity occurring within the United States, using the United Nations Framework of Analysis for Assessing Atrocity Crimes (“UN Framework”) to identify and appraise overarching factors affecting the level of risk in the United States today. This Article is also the first to examine the role that a federal law could play in preventing crimes against humanity within the United States. In principle, such a law could be transformative, providing for culpability for government actors who are currently shielded from liability, offering an additional bulwark against violence by powerful non-state actors, and presenting a basis for comprehensive safeguards throughout government agencies with the authority to detain and use force. In reality, crimes against humanity legislation would face significant political resistance and might deviate from international legal norms in ways that would render it less effective, or even counterproductive. Finally, this Article contributes to the understanding of several evolving concepts in international criminal law, such as the scope of the policy element of crimes against humanity.

Part II begins with an overview of the purpose and definition of crimes against humanity under international law. The Article then evaluates the risk of crimes against humanity in the United States in Part III, first assessing several representative events under the international law definition of crimes against humanity, and then applying the UN Framework to evaluate the overarching structural and contextual factors contributing to a risk of crimes against humanity. Part IV assesses the potential for a federal law on crimes against humanity. It describes what a federal crimes against humanity law comporting with international standards could accomplish, explores the reasons that the United States has not adopted such a law, including its international orientation toward mass atrocities and its exceptionalism in its relationship to international law, and assesses a previous attempt to pass crimes against humanity legislation and its limitations. Finally, Part V explores several mitigation strategies, focusing on the U.S. military's approach to preventing war crimes as a possible model, as well as considering non-legislative tools that could institutionalize prevention mechanisms within the federal bureaucracy.

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As Part V suggests, there are many steps that could be taken to mitigate the risk of crimes against humanity within the United States. But the first and most important step is to recognize that risk. For too long, the federal government has behaved as if the risk of crimes against humanity exists only overseas, in fragile, conflict-ridden, and authoritarian states. While the United States has recognized, at least in principle, that atrocities have been committed against Black Americans and Native Americans, it has not acknowledged that race-based atrocities amounting to crimes against humanity continue into the present. The insurrection at the U.S. Capitol and the rise of White supremacist militias, the government policy of family separation at the southern border, widespread police brutality against Black Americans, and commonplace sexual assaults against immigrants in detention--all of these events signal that the risk of crimes against humanity occurring within the United States is real.

Within government institutions, there are insufficient protections against the development of harmful policies, and there is a fundamental imbalance between authority and oversight. In U.S. society, there is a rising tide of White supremacy and extremism that is accruing the capability to commit acts of violence up to and including crimes against humanity. Whether the United States addresses these risks within the auspices of existing domestic law or by enacting new legal and institutional measures, it is imperative to act before that balance tips too far, and crimes against humanity are no longer a risk but an undeniable reality.

Professor of Law, University of Pittsburgh School of Law.