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41 Denv. J. Int'l L. & Pol'y 185 (2012-2013)
Criminalizing Extrajudicial Killings

handle is hein.journals/denilp41 and id is 199 raw text is: CRIMINALIZING EXTRAJUDICIAL KILLINGS ERIN CREEGAN* I. INTRODUCTION If those who committed torture abroad come to the United States, they can be prosecuted as torturers, or deported under human rights provisions of U.S. immigration law.2 But our ability to criminally punish extrajudicial killings- often very closely linked to the crime of torture-is less. For example, if a state official commits an extrajudicial killing by torturing and ultimately killing an individual, and later comes into the jurisdiction of the United States, punishment options are limited to those described above.3 Why is this? There are a few reasons for the difficulty in bringing individuals that have committed extrajudicial killings to justice. The biggest obstacle is that an extrajudicial killing is not criminalized under international law in as broad a manner as torture. Even though torture seems less severe than death, torture is an action that is never excusable under international law. Yet states are permitted to intentionally kill individuals in a number of circumstances. They may execute them after due judicial process, they may incapacitate them in a valid exercise of law enforcement, or they may target them pursuant to the laws of armed conflict. Even the term extrajudicial killing does not perfectly reflect the situations in which a state may kill-war and law enforcement operations are both extrajudicial, yet killing is and should be permitted in both cases. * Erin Creegan is a Trial Attorney at the U.S. Department of Justice, National Security Division, Counterterrorism Section, and an Adjunct Professor the George Washington University Law School and the University of Maryland, College Park. The opinions represented in this paper are those of the author and do not express the positions of the United States Government in any way. 1. 18 U.S.C. § 2340(a)-(b)(2) (2001). 2. See 8 U.S.C. § 1182(a)(3)(iii) (2010) (Inadmissible aliens): Any alien who, outside the United States, has committed, ordered, incited, assisted, or otherwise participated in the commission of - (I) Any act of torture, as defined in section 2340 of title 18; or (II) Under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note), is inadmissible. See also 8 U.S.C. § 1227(a)(4)(D) (2010) (Deportable aliens) (invoking the same descriptions from § 1182 to remove already admitted aliens). 3. For another example of an immigration prosecution, see, e.g., 18 U.S.C. § 1015(a) (2001) (Whoever knowingly makes any false statement under oath, in any case, proceeding, or matter relating to ... any law of the United States relating to naturalization, citizenship, or registry of aliens . . . shall be fined under this title or imprisoned not more than five years .... ). 185