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| International Criminal Court at The Hague (CNN) |
Experts associated with the United Nations say allegations contained in the Epstein files could point to crimes against humanity. How might such a finding play out, and what tribunal likely would be at the heart of an investigation and prosecution?
Our research indicates the International Criminal Court (ICC) at The Hague, Netherlands, probably would play a central role, but the ICC might face serious hurdles in seeking to prosecute citizens of the United States. How could that be? To address that question, we first look at the four types of criminal cases that can come before the ICC:
(1) Genocide -- The specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means;
(2) Crimes Against Humanity -- serious violations committed as part of a large-scale attack against any civilian population. The 15 forms of crimes against humanity listed in the Rome Statute include offences such as murder, rape, imprisonment, enforced disappearances, enslavement – particularly of women and children, sexual slavery, torture, apartheid and deportation;
(3) War Crimes -- Grave breaches of the Geneva conventions in the context of armed conflict and include, for instance, the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes;
(4) The Crime of Aggression -- The use of armed force by a State against the sovereignty, integrity or independence of another State. This is the central issue in Russia's 2022 invasion of Ukraine, and the ICC has issued an arrest warrant for Russian President Vladimir Putin.
Crimes associated with the Epstein files would fall under No. 2, Crimes Against Humanity. There is little doubt the ICC has the jurisdiction to prosecute such cases. But there is considerable doubt about the ICC's ability to prosecute U.S. citizens. That's because the United States is not a member of the ICC, primarily due to concerns about national sovereignty and the potential for politically motivated prosecutions of its military and political leaders. Also, the U.S. adopted the American Service-Members' Protection Act (ASPA) in 2002, and it gives the president power to use "all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court".
Does this mean Donald Trump could escape ICC accountability if the court found probable cause to believe he committed crimes against humanity as part of his ties to the Jeffrey Epstein matter? Given that the Epstein files tie Trump to allegations of murder and rape, it's a reasonable question. We don't have a clear-cut answer at the moment, but I'm going to continue to research it. My guess is that Trump and his governmental allies would stand a better than 50-50 chance of skating. As for business leaders and other private citizens, they might be on shakier ground, but the ASPA certainly throws a wrench into the wheels of justice regarding U.S. citizens.
How did the subject of the UN and the Epstein files arise? For that, we turn to a report from The Hill, under the headline "Epstein files allegations may amount to 'crimes against humanity': UN experts." Sophie Brams writes:
A panel of United Nations experts suggested that allegations detailed in the millions of documents released by the Justice Department (DOJ) connected to its probe of convicted sex offender Jeffrey Epstein could amount to some of the most serious crimes under international law.
The group of experts, appointed by the U.N. Human Rights Council, said in a statement released Monday that the files signal “the existence of a global criminal enterprise” that engaged in the “systematic and large-scale sexual abuse, trafficking and exploitation” of women and girls.
“These crimes were committed against a backdrop of supremacist beliefs, racism, corruption, extreme misogyny and the commodification and [dehumanization] of women and girls from different parts of the world," they said.
What are the legal requirements for a finding of crimes against humanity, and how might the content of the Epstein files meet them? The Hill report addresses both questions:
The U.N. panel warned that some accusations contained in the documents released by the DOJ may meet that threshold.
“All the allegations contained in the ‘Epstein Files’ are egregious in nature and require independent, thorough, and impartial investigation, as well as inquiries to determine how such crimes could have taken place for so long,” they said.
“So grave is the scale, nature, systematic character, and transnational reach of these atrocities against women and girls, that a number of them may reasonably meet the legal threshold of crimes against humanity,” the panel added:
To understand how Epstein-related crimes might be prosecuted, and under what standard, it helps to examine some basic definitions:
Crimes against humanity are defined under international law as when certain acts are committed “as part of widespread or systematic attack directed against any civilian population.” These acts — which include rape, sexual slavery, and murder, among other offenses — differ from war crimes in that they do not require armed conflict and can occur in peaceful times, according to the International Committee of the Red Cross.
The U.N. panel warned that some accusations contained in the documents released by the DOJ may meet that threshold.
The panel also addressed concerns that the Trump administration handled the files in a slipshod fashion, raising questions about transparency and unlawful redactions. Here is more from The Hill:
The Trump administration has been criticized for its handling of the investigation into Epstein and his associate Ghislaine Maxwell, with critics arguing it has not been transparent in the batches of documents released.
Lawmakers who reviewed the unredacted Epstein files at a DOJ office over the past week reported heavy, “unnecessary” redactions in what they saw. Trump officials have maintained the redactions are meant to ensure victims’ identities are kept private.
The U.N. panel echoed concerns about “botched redactions” that exposed victims’ information in previous disclosures — a blunder the Trump administration blamed on “technical or human error” when it announced it had taken down the documents and images.
“The grave errors in the release process underscore the urgent need for victim-centered standard operating procedures for disclosure and redaction, so that no victim suffers further harm,” they wrote.
If the UN panel reaches a finding of crimes against humanity, how might that play out? For insight on that question, we turn to a report at UN.com focusing on the global human-rights issues the Epstein files present:
In a statement on Monday, the independent experts – who serve in their individual capacities under mandates from the UN Human Rights Council and are not UN staff – warned that the alleged acts documented in the files could amount to some of the gravest crimes under international law.
The reported conduct could amount to sexual slavery, reproductive violence, enforced disappearance, torture, inhuman and degrading treatment, and femicide, according to the experts.
Under international criminal law, crimes against humanity occur when acts such as rape, sexual slavery, enforced prostitution, trafficking, persecution, torture or murder are committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack.
The experts said the patterns reported in the files may meet this threshold and must be prosecuted in all competent national and international courts.
This suggests an array of tribunals, prosecutors and judges will handle the cases, based on jurisdictional principles outlined under international law. The UN report notes that Epstein associate Ghislaine Maxwell has been convicted of sex trafficking and other offenses and sentenced to a 20-year prison sentence. But the report also states, "Questions persist regarding the potential involvement of additional individuals, financial structures and possible transnational dimensions of the alleged criminal enterprise."
In other words, the UN intends to pursue issues that largely have been covered up by the U.S. Department of Justice (DOJ) under Donald Trump.
Trump and his allies have essentially been begging the American public to "move on" from the Epstein files. But the UN appears to have no intention of following suit. From the report:
The experts hailed the courage and resilience of victims in seeking accountability at significant personal cost, stressing that under international human rights law, States are obligated to prevent, investigate and punish violence against women and girls, including acts committed by private actors. . . .
“The failure to safeguard [victims'] privacy puts them at risk of retaliation and stigma,” the experts warned.
They further underscored that “resignations of implicated individuals alone are not an adequate substitute for criminal accountability,” welcoming steps by some governments to probe current and former officials and private individuals named in the files. They called on other States to do the same.
“Any suggestion that it is time to move on from the ‘Epstein files’ is unacceptable. It represents a failure of responsibility towards victims,” they said.
“It is imperative that governments act decisively to hold perpetrators accountable,” the experts said. “No one is too wealthy or too powerful to be above the law.”
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