By: Madaline George

Last week, U.S.  immigration officials announced plans to deport 150 Bosnians Serbs whom they believe took part in war crimes and ethnic cleansing during the conflict in the former Yugoslavia; a total of 300 people are suspected of having concealed their wartime activities on their immigration papers. Immigration officials suspect that as more evidence comes to light and witnesses come forward the number of suspects could reach 600.   As many as half of the current 300 are suspected of having participated in the 2005 Srebrenica massacre in which 8,000 unarmed Bosnian Muslims were murdered. In 2004 the UN officially declared the massacre at Srebrenica an act of genocide. And while the International Criminal Tribunal for the former Yugoslavia has charged 161 of those individuals ‘most responsible’ and convicted nearly 80, many lower-level perpetrators escaped, a number of who came into the United States under the radar.  “The idea that the people who did all this damage in Bosnia should have a free pass and a new shot at life is just obscene to me,” said Michael MacQueen, an Immigration and Customs Enforcement historian leading  many of these investigations.

The cemetery at the Srebrenica-Potočari Memorial and Cemetery to Genocide Victims

The cemetery at the Srebrenica-Potočari Memorial and Cemetery to Genocide Victims

Immigration officials report that another 64 Balkan immigrants with ties to war crimes have already left the United States as the result of legal proceedings or by fleeing while under investigation.

Some immigration lawyers worry that the government has gone too far here, conducted too wide a sweep of former Bosnian immigrants. Some of these individuals, the lawyers say, are subject to deportation because they concealed their service in the Bosnian Serb army, without sufficient evidence of actual participation in atrocities.

Removing human rights perpetrators from the United States is a major goal of the U.S. Immigration and Customs Enforcement agency (ICE). ICE estimated in 2011 that more than 1,900 individuals from 96 countries are living in the United States who may have committed human rights abuses abroad.

ICEIn order to combat this pressing issue, the Department of Homeland Security established the Human Rights Violators and War Crimes Center in 2008 to investigate immigrants from former conflict zones with increased efficiency and collaboration with other federal agencies. The division has launched investigations into immigrants from El Salvador, Ethiopia, Guatemala and Rwanda, but has focused the majority of its attention to the conflict in the former Yugoslavia that killed over 100,000 people and displaced another 2 million between 1992 and 1995.  More than 120,000 Bosnians sought U.S. visas in the mid-1990s, and the immigration system relied mostly on their honesty regarding their backgrounds.

Since 2004, ICE has arrested more than 275 individuals for human rights related violations under relevant criminal and immigration statutes and denied more than 139 individuals entry visas.

Some individuals within the United States are deportable under the Immigration and Nationality Act, [INA]. Under the INA individuals who participated in “Nazi persecution, genocide or the commission of any act of torture of extrajudicial killing,” in the recruitment or use of child soldiers, or who is a foreign government official who “participated in the commission of severe violations of religious freedom” are subject to deportation, if ICE can successful uncover sufficient evidence. Unlike nearly all criminal statutes, the INA established no statutes of limitation on deportation grounds.

The United States must resort to actions in the field of immigration against these human rights perpetrators due to a series of limitations within the domestic criminal code. While the United States has legislation prohibiting genocide, war crimes, torture, and the recruitment or use of child soldiers, it lacks criminal jurisdiction to prosecute most crimes against humanity, such as murder, rape, extermination, persecution, apartheid, and enforced disappearance of persons.

Moreover, statutes of limitation often present a serious obstacle to prosecution. War crimes which do not result in death carry a five year statute of limitations. Torture carries an eight-year statute of limitations if the acts did not result in death or serious bodily injury or the foreseeable risk of such. There is no statute of limitation for genocide, or for war crimes and torture that foreseeably risks or results in serious injury or death. Therefore, individuals who committed these acts outside of the statute of limitations – which is the case for many perpetrators of the Rwandan Genocide or the conflict in the former Yugoslavia in the early 1990’s – are not subject to criminal liability within the United States. While they can occasionally be prosecuted under civil statutes and subjected to a fine, this does not serve as proper punishment for such brutal crimes and is insufficient justice for victims.

As criminal prosecution for the underlying crime is often not an option, another avenue the government can take is to prosecute these individuals for visa or immigration fraud. When someone immigrates to the United States, either as a refugee or another category of immigrant, they are required to answer a series of questions, including membership in armed forces, political affiliations.

Frequently however, the United States government must forgo even criminal charges related to visa and immigration fraud because evidence of misrepresentations did not come to light in time. The statute of limitations is five and ten years respectively, for visa fraud and naturalization fraud.  But immigration and naturalization fraud results in weak sentences – visa fraud has a maximum jail time of ten years. And there is no guarantee these individuals will be deported after a conviction or sentence.

The United States may therefore be a “safe haven” for perpetrators.