Many individuals suspected of serious human rights violations such as torture, war crimes, recruitment or use of child soldiers, or genocide cannot be prosecuted for the violations due to legal limitations or insufficient admissible evidence. The prosecution of these individuals for other offenses and their subsequent removal from the United States, however, are often important government objectives. These matters can involve significant foreign relations and complex legal issues, particularly because they often involve investigating foreign government actors, foreign political strife, conduct in armed conflicts, as well as overlapping investigations with other districts and countries. As a result, the Department must pursue the prosecution of suspected human rights violators in a consistent and coordinated manner. The responsibility for this coordination is assigned to the AAG of the Criminal Division.
For purposes of this section, a suspected human rights violator matter or case includes any criminal or civil investigation or prosecution in which the charges allege or the evidence during the investigation, trial, or sentencing indicates that the target assisted or otherwise participated in any of the following activities, whether or not the government charges or attempts to prove them:
- violations of the federal criminal statutes covering genocide, torture, war crimes, or recruitment or use of child soldiers;
- extrajudicial or unlawful killings, assaults, deprivation of liberty or similar crimes committed abroad under color of law or by persons acting on the basis of an association with the U.S. government; and
- persecution abroad on the basis of race, religion, ethnicity, national origin, gender, or political opinion.
A. Required Notification
The USAO shall promptly notify the Human Rights and Special Prosecutions Section (HRSP) of the Criminal Division when the USAO opens any matter that involves the investigation or prosecution of a suspected human rights violator for offenses that do not fall within the confines of JM § 9-2.139. In other words, the USAO shall notify HRSP if it opens a matter involving a suspected human rights violator even if—
- charging torture (18 U.S.C. §§ 2340-2340B), a war crime (18 U.S.C. § 2441), genocide (18 U.S.C. §§ 1091-1093) or child soldiers (18 U.S.C. § 2442) is not legally or factually possible; or
- the matter will not require the government to either define torture, war crimes, use or recruitment of child soldiers, or genocide, or to prove that torture, a war crime, use or recruitment of child soldiers, or genocide was committed.
B. Notification and Approval Requirements for Matters of National Significance
If the Assistant Attorney General for the Criminal Division determines that a matter covered by this section is a matter of national significance, HRSP will notify the USAO of that determination. In such cases, the notification, consultation, concurrence, and prior approval requirements set out in paragraphs C, D, E and F of JM § 9-2.139 shall apply. The AAG for the Criminal Division may deem a matter to be of national significance because the matter—
- presents important public policy considerations or novel issues of law;
- involves particular facts and circumstances that may set precedent or be related to other investigations or prosecutions;
- may have international or foreign policy implications;
- is an urgent or sensitive case; or
- may substantially affect the uniform application of the law.
If the AAG does not deem a matter to be of national significance, no further notification or approval is required, although consultation is encouraged. If the AAG and the USAO disagree whether a matter is of national significance, the matter will be resolved by the Deputy Attorney General.
[new April 2018]