[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                      GENOCIDE AND THE RULE OF LAW

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 23, 2007

                               __________

                           Serial No. 110-123

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

MAXINE WATERS, California            J. RANDY FORBES, Virginia
WILLIAM D. DELAHUNT, Massachusetts   LOUIE GOHMERT, Texas
JERROLD NADLER, New York             F. JAMES SENSENBRENNER, Jr., 
HANK JOHNSON, Georgia                Wisconsin
ANTHONY D. WEINER, New York          HOWARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
ARTUR DAVIS, Alabama                 DANIEL E. LUNGREN, California
TAMMY BALDWIN, Wisconsin
BETTY SUTTON, Ohio

                      Bobby Vassar, Chief Counsel

                    Michael Volkov, Minority Counsel


                            C O N T E N T S

                              ----------                              

                            OCTOBER 23, 2007

                                                                   Page

                           OPENING STATEMENT

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     2

                               WITNESSES

Mr. Eli M. Rosenbaum, Director, Office of Special Investigations, 
  Criminal Division, United States Department of Justice, 
  Washington, DC
  Oral Testimony.................................................     4
  Prepared Statement.............................................     7
Ms. Diane F. Orentlicher, Professor, Washington College of Law, 
  American University, Washington, DC
  Oral Testimony.................................................    15
  Prepared Statement.............................................    17
Mr. Jerry Fowler, United States Holocaust Memorial Museum, 
  Washington, DC
  Oral Testimony.................................................    21
  Prepared Statement.............................................    23
Ms. Gayle E. Smith, Senior Fellow, Center for American Progress, 
  Washington, DC
  Oral Testimony.................................................    25
  Prepared Statement.............................................    27

                                APPENDIX

Material Submitted for the Hearing Record........................    39


                      GENOCIDE AND THE RULE OF LAW

                              ----------                              


                       TUESDAY, OCTOBER 23, 2007

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 1:40 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Scott, Johnson, Forbes, Gohmert, 
Coble, and Chabot.
    Staff present: Ameer Gopalani, Majority Counsel; and 
Veronica Eligan, Majority Professional Staff Member.
    Mr. Scott. The Subcommittee will now come to order.
    I am pleased to welcome you today to the hearing before the 
Subcommittee on Crime, Terrorism, and Homeland Security on 
``Genocide and the Rule of Law.''
    Following the mass atrocities committed before and during 
World War II, the international community sought to condemn 
genocide. The slaughtering of individuals simply because they 
are a member of a certain ethnic or racial group has occurred 
throughout history, but until the 1940's, the crime did not 
have a name.
    Raphael Lemkin, a holocaust survivor and the architect of 
the Genocide Convention, an international treaty ratified by 
over 100 countries, fashioned the term ``genocide'' from the 
Greek word ``genus,'' meaning race or tribe, and the Latin term 
for killing, ``cide.'' But the invention of the word did not 
prevent genocide from happening.
    As we witnessed, as many as 800,000 Tutsi minority men and 
women and children were murdered in Rwanda. Mass violence also 
occurred against citizens in Bosnia, where up to 8,000 Muslim 
men and boys were systematically executed.
    Obligations of the United States under the Genocide 
Convention are in the criminal code, in Title 18, beginning at 
Section 1091. Genocide is defined in that section as having the 
specific intent to destroy, in whole or in part, a national 
ethnic, racial or religious group. The code offers severe 
punishment for anyone who commits genocide within the United 
States.
    The law also makes it a Federal crime for a U.S. national 
to commit genocide anywhere in the world. Fortunately, there 
has not been a need to use the law against anyone now covered 
by it. However, by only covering genocide if it is committed in 
this country or committed by a U.S. national, we leave a gap 
which allows non-U.S. persons who commit genocide elsewhere to 
come to this country with impunity under our laws.
    Genocide continues to be a threat in the world and we 
should attack it wherever we find it. We see what the lack of 
enforcement against genocide evolves to most clearly today in 
Darfur. In that region, we see the tragic replay of the 
suffering and death. Hundreds of thousands of innocent people 
have been killed, raped, tortured, forced to flee, and over two 
million people have been driven from their homes.
    For them, the commitment of ``never again'' after the 
holocaust rings hollow.
    So we must ask ourselves why this is so. Is the failure of 
law, or of will, or both? This hearing will probe ways that we 
may, as a country, contribute to the prevention and punishment 
of genocide through more effective implementation of relevant 
parts of the conventions against genocide.
    In that regard, we will examine our own laws against 
genocide to assure that they provide for the prosecution and 
punishment of all acts of genocide wherever they occur and by 
whomever they are committed.
    To this end, the gentleman from California, Mr. Berman, and 
the gentleman from Indiana, Mr. Pence, have introduced the 
Genocide Accountability Act, H.R. 2489, legislation designed to 
amend Title 18 of the U.S. Code, to allow for prosecution of 
non-U.S. nationals in the United States who have committee 
genocide outside of the United States, just as U.S. nationals 
can now be prosecuted.
    The United States should have the ability to prosecute 
those who find safe haven in the United States for their acts 
of genocide. The Genocide Accountability Act would end this 
impunity gap in the genocide law.
    With that said, I will recognize the gentleman from Texas, 
who is standing in for the Ranking Member, the gentleman from 
Texas, Mr. Gohmert, for his statement.
    Mr. Gohmert. I thank you, Chairman Scott. I want to thank 
you for scheduling this hearing.
    We are honored to have the distinguished panel of witnesses 
to share their views on this important and timely issue.
    Perpetrators of genocide have committed some of the most 
heinous crimes ever carried out. Genocide is a crime not only 
against the specific victims targeted for extermination, but it 
is also a crime against humanity.
    History is replete with horrible images of human suffering, 
where victims are selected based on their human 
characteristics. In the modern era, we have seen technological 
advances used for destructive reasons in carrying out genocide.
    The idea that individuals, hundreds, thousands, and 
hundreds of thousands, are singled out and systematically 
targeted for extermination offends any person's belief in 
humanity or the rule of law.
    In recent decades, we have seen ethnic cleansing during the 
civil war in the former Yugoslavia, systematic mass killings in 
Rwanda, Sierra Leone and, of course, there is the ongoing 
suffering in Darfur.
    The United States government has long been a key 
participant in global law enforcement efforts to help end 
genocide, war crimes, and crimes against humanity.
    Our government trains and assists the prosecutors and 
judges who handle genocide cases in the international tribunals 
and domestic courts. Further, our government extradites 
perpetrators of genocide and other human rights violators found 
in this country to courts and tribunals for prosecution.
    In cases where our government discovers that suspected war 
criminals have become naturalized citizens or have illegally 
obtained visas to visit our country, the government has charged 
them--imposed denaturalization and removed them from this 
country.
    I welcome the opportunity to hear from the witnesses how we 
can continue to bring the perpetrators of genocide to justice. 
I look forward to working with my friend, Mr. Scott, on this 
important issue, because it is clear crimes of this devastating 
nature that occur elsewhere, if not stopped, will come to roost 
here in our midst.
    Thank you. I yield back.
    Mr. Scott. Thank you.
    We have a distinguished panel of witnesses here today to 
help us consider the important issues that are currently before 
us.
    Our first witness is Eli Rosenbaum, Director of the Office 
of Special Investigations in the Criminal Division of the 
Department of Justice. He is the longest serving prosecutor-
investigator of Nazi criminals in world history, having worked 
on these cases at the Department of Justice for more than 20 
years.
    He is a graduate of the Wharton School of the University of 
Pennsylvania, where he received his MBA, and of the Harvard Law 
School.
    Our next witness is Professor Diane Orentlicher, currently 
serving as special counsel to the Open Society Justice 
Initiative, while on a 1-year leave from the Washington College 
of Law at American University, where she is professor of 
international law.
    She is a founding director of the law school's War Crimes 
Research Office and is co-director of its Center for Human 
Rights and Humanitarian Law. In 2004, the United Nations 
Secretary General appointed her to serve as the United Nations 
Independent Expert on Bombating Impunity.
    We next have Jerry Fowler, who is the founding director of 
the U.S. Holocaust Memorial Museum's Committee on Conscience, 
taught at George Washington University Law School and George 
Mason University Law School, and is a graduate of Stanford Law 
School and Princeton University.
    From 1983 to 1987, he was stationed in Germany as an office 
of the U.S. Army. From 1993 to 1995, he served as a special 
litigation counsel for the U.S. Department of Justice.
    Before joining the museum, he was legislative counsel for 
the Lawyers' Committee for Human Rights.
    And, finally, we will have Gayle Smith, senior fellow at 
the Center for American Progress. She previously served as 
special assistant to the president and senior director for 
African affairs at the National Security Council from 1998 to 
2001 and as senior advisor to the administrator and chief of 
staff of the U.S. Agency on International Development from 1994 
to 1998.
    She was based in Africa for over 20 years as a journalist, 
covering military, economic and political affairs issues. She 
is a member of the Council on Foreign Relations and serves on 
the board of the African-American Institute, USA for Africa and 
the National Security Network.
    Each of the witnesses' written statements will be made part 
of the record. I would ask each witness to summarize his or her 
testimony in 5 minutes or less. And to stay within that time, 
there is a lighting device at the table. It will go from green 
to yellow to red when the time is up.
    We will now begin with Mr. Rosenbaum.

  TESTIMONY OF ELI M. ROSENBAUM, DIRECTOR, OFFICE OF SPECIAL 
INVESTIGATIONS, CRIMINAL DIVISION, UNITED STATES DEPARTMENT OF 
                    JUSTICE, WASHINGTON, DC

    Mr. Rosenbaum. Thank you, Chairman Scott and distinguished 
Members of the Subcommittee, for holding this important 
hearing.
    It is a privilege to appear before you today. As the 
director of the Justice Department's Office of Special 
Investigations, I am pleased to discuss the department's 
ongoing efforts against perpetrators of genocide, war crimes, 
and crimes against humanity.
    My office, OSI, which has been handling denaturalization 
and removal cases against World War II era Nazi criminals since 
its creation for that purpose in 1979, had its mission expanded 
in 2004, so that it now also handles certain cases of genocide 
and other crimes perpetrated abroad since the conclusion of the 
second World War.
    Bringing these perpetrators to justice obviously is a 
mission of the very greatest important.
    On a personal note, participating in the quest for justice 
on behalf of the victims of genocide has been the great 
privilege of my professional life. I would like to think that 
in doing so, I have, in some sense, continued the work that my 
father, who died just this past July, did in Europe.
    He served his country and the causes of freedom and 
humanity during and after World War II in the Third Infantry 
Division and then in the United States Seventh Army, and his 
responsibilities at war's end included questioning Nazi war 
crimes suspects.
    When he tried to tell me once, when I was 15 years old, 
what he had seen at the Dachau concentration camp upon his 
arrival there 2 days after its liberation, his eyes welled with 
tears and he was unable to speak. He never could tell me, but I 
understood.
    In May, I was in Rwanda and made an unforgettable visit to 
the genocide memorial in Kigali, where the First Lady had laid 
a wreath during her 2005 visit.
    When I came to work at OSI, I could hardly have imagined 
that genocide would again be perpetrated. I would like to add 
that Sigal Mandelker, the deputy assistant attorney general, to 
whom I report, and who would be testifying here today but for a 
prior commitment outside the country, is the granddaughter of 
three grandparents who did not survive Hitler's horrific 
genocide of six million Jews.
    Her mother was orphaned by the Holocaust, and her father 
lost his mother at the age of just 5. This is an issue about 
which she feels deeply, both personally and professionally, as 
do I and all of my colleagues who work on these cases at the 
Department of Justice.
    The department continues to utilize all tools available 
against perpetrators of these crimes, including prosecution, 
extradition and removal, and provision of assistance to 
countries and tribunals that prosecute these crimes.
    First, the Department of Justice makes use of civil and 
criminal charges to ensure that the perpetrators of such crimes 
don't find safe haven in the United States. For the past 28 
years, the Office of Special Investigations has identified, 
investigated and brought civil denaturalization and removal 
cases against World War II Nazi perpetrators and we have 
successfully pursued more than 100 of these cases.
    In addition, U.S. attorney's offices around the country, 
OSI and the Criminal Division's Domestic Security Section 
criminally prosecute individuals who allegedly participated in 
genocide, war crimes, and crimes against humanity for offenses 
such as visa fraud, unlawful procurement of naturalization and 
false statements.
    For example, a number of Bosnian Serbs, including 
individuals who served in units implicated in the Srebrenica 
massacres, have been arrested by Immigration and Customs 
Enforcement and charged with immigration related crimes for 
concealing their prior service in the Bosnian Serb military.
    Two of those men who have been removed by ICE to Bosnia 
were indicted last December by Bosnian authorities on charges 
of murder and other serious offenses.
    Third, we extradite individuals wanted for human wanted for 
human rights violations. For example, in March of 2000, 
following the conclusion of hard fought litigation, the United 
States turned over Elizaphan Ntakirutimana to the International 
Criminal Tribunal for Rwanda.
    This individual, a pastor at the time of the Rwanda 
genocide, was accused of devising and executing a lethal scheme 
in which Tutsi civilians were encouraged to seek refuge in a 
local religious complex, to which he then directed a mob of 
armed attackers. With his participation, the attackers 
thereupon slaughtered and injured those inside.
    In 2003, Ntakirutimana, a one-time Texas resident, was 
convicted by the tribunal of aiding and abetting genocide and 
he was sentenced to 10 years imprisonment. Moreover, a 
Department of Justice prosecutor played a crucial role in 
bringing those charges.
    Finally, the United States continues to provide substantial 
assistance to foreign governments and to various international 
tribunals that are investigating and prosecuting human rights 
cases abroad, including the international criminal tribunals 
for both Rwanda and the former Yugoslavia.
    Indeed, the U.S. has been the largest contributor to both 
of these tribunals. The department has also loaned a number of 
experienced law enforcement professionals to the ICTY, 
including the former head of DSS.
    Under the leadership of the Criminal Division's Office of 
Overseas Prosecutorial Development and Training and, also, the 
Division's International Criminal Investigative Training 
Assistance Program, we have also operated major training 
programs and provided capacity-building assistance in the 
investigation and prosecution of war crimes, including to the 
various countries and jurisdictions of the former Yugoslavia.
    Mr. Chairman, thank you again for holding this important 
hearing today. We are very grateful for the tools that Congress 
has provided U.S. in these enormously important cases, and I 
welcome any questions you may have.
    [The prepared statement of Mr. Rosenbaum follows:]

                 Prepared Statement of Eli M. Rosenbaum

















    Mr. Scott. Thank you.
    Ms. Orentlicher?

   TESTIMONY OF DIANE F. ORENTLICHER, PROFESSOR, WASHINGTON 
      COLLEGE OF LAW, AMERICAN UNIVERSITY, WASHINGTON, DC

    Ms. Orentlicher. Mr. Chairman and distinguished Members of 
this Subcommittee, I am grateful for the opportunity to share 
my views about a subject that could hardly be more important or 
consequential--the role of the United States in combating 
genocide through the rule of law.
    As a party to the 1948 Convention on Genocide, the United 
States has long recognized that genocide is a crime under 
international law and has vowed to prevent and punish it.
    Yet we haven't always honored our commitment to prevent or 
halt genocide when we have been in a position to act, and the 
principal law implementing our treaty obligation to punish 
genocide does not go far enough. In particular, as the Chairman 
already has noted, it does not empower U.S. authorities to 
bring genocide charges against foreigners who are believed to 
have committed genocide abroad and who have then sought 
sanctuary in our own country.
    My remarks will focus on this gap, whose problematic 
implications can be easily resolved through legislation that 
falls squarely within the province of this Subcommittee.
    First, though, I want to say that this hearing honors a 
point that was central to the life project of Raphael Lemkin, 
who, as the Chairman has noted, was the Polish scholar who 
famously gave genocide its name and then devoted himself to 
persuading States to condemn genocide as a crime under 
international law.
    In his view, it was absolutely essential to confront 
genocide through law, not just an all-too-fragile code of 
conscience but an enforceable code of law.
    His tireless crusade culminated in 1948, when the U.N. 
General Assembly adopted the Genocide Convention. But Lemkin 
did not live long enough to realize another goal that was also 
important to him--United States ratification of the Genocide 
Convention.
    That didn't happen until 1988, almost 30 years after 
Lemkin's death.
    The convention itself is brief. It recognizes that genocide 
is a crime under international law. It defines genocide in the 
terms that the Chairman already summarized, and it imposes two 
simple obligations--states must prevent and punish genocide.
    The first duty, to prevent genocide, begins at home but 
transcends national borders. That is, the treaty counts on 
states to take measures in their own countries to combat 
conditions that are conducive to genocide. But it also 
recognizes that the risk of genocide anywhere engages the 
responsibilities of states everywhere.
    In its first and so far only judgment applying the Genocide 
Convention, last February the International Court of Justice 
ruled that parties to the genocide convention ``must employ all 
means reasonably available to them so as to prevent genocide as 
far as possible.''
    What is significant about that judgment is that the Court 
affirmed that the duty to prevent genocide outside your own 
boundaries is not merely aspirational, but is legally binding.
    The second duty is the one I am going to focus on in the 
rest of my remarks. That is the duty to punish genocide in 
situations where we have already failed to prevent it. 
Obviously, the two duties are related. If states routinely 
punished genocide when it occurred they would dispel the 
impunity that sustains people who commit genocide.
    The question I would like to address in my remaining time 
is whether U.S. law adequately fulfills our obligations of 
punishment under the Genocide Convention.
    In brief, our law does not go far enough to ensure 
prosecution of genocide suspects found in our own territory. 
Although, as the Chairman noted, the United States can 
prosecute people believed to have committed genocide here or 
U.S. nationals thought to have committed genocide abroad, we 
cannot bring genocide charges against people who commit 
genocide outside our borders and then seek haven here.
    The Genocide Accountability Act of 2007, which was 
introduced in the House in May, addresses this gap. In my 
written testimony, I describe how the principal U.S. law that 
implements the Genocide Convention, the Proxmire Act, largely 
fulfills the letter of our treaty obligation to ensure that 
people who commit crimes of genocide in U.S. territory can be 
prosecuted here.
    But I have no doubt that if the genocide convention were 
enacted today, it would include a provision requiring states 
who signed the convention to enact legislation making it 
possible to prosecute foreigners in their territory who 
committed the crime of group annihilation abroad.
    More recent international conventions, such as the 
Convention against torture and the Convention against Enforced 
Disappearance, routinely include provisions of this sort. In 
fact, as a party to the Torture Convention, the United States 
has enacted legislation enabling Federal prosecutors to bring 
torture charges against aliens suspected of committed torture 
abroad who are found in the United States.
    Many other countries do the same for genocide and have used 
their laws to prosecute perpetrators from Rwanda and the former 
Yugoslavia.
    Looking beyond our own courts, the United States has played 
a leading role in supporting various international courts that 
have jurisdiction over genocide, as well as strengthening local 
courts in countries that have been ravaged by mass atrocities.
    As Mr. Rosenbaum's testimony highlights, legislation 
enacted in recent years goes farther, enabling us to 
denaturalize, deport or exclude genocidaires. U.S. authorities 
can, as he has indicated, prosecute people who lie about their 
background in relation to genocide, but they can only do so on 
charges such as visa fraud.
    An additional advance, but one that also highlights the 
limits in our law, is that in 2004 Congress enacted legislation 
directing the attorney general, when deciding on legal options 
relating to aliens who have in the past been involved in 
genocide, to consider options for prosecution. That is, when he 
considers legal options he is supposed to consider options for 
prosecution.
    But there is a glaring problem.
    Mr. Scott. Could you summarize the rest of your testimony, 
please?
    Ms. Orentlicher. Yes. The attorney general's options are 
limited, and let me try to illustrate that very briefly by 
citing a case that was reported earlier this month in the 
Cleveland Plain Dealer.
    The case that was described in this news article involved 
someone who was prosecuted for lying about his involvement in a 
military unit that was connected to the 1995 massacre in 
Srebrenica, which has been legally judged to be a genocide.
    He was not prosecuted, however, for genocide itself. He was 
convicted of lying about his service in this Srebrenica unit. 
As the Cleveland Plain Dealer reported, ``Jurors heard little 
about the Srebrenica genocide or about Maslenjak's specific 
duties.''
    Instead, the judge who tried the case ``repeatedly told 
jurors that Mskebhaj was on trial for immigration violations, 
not war crimes.''
    Now, while this case and many others demonstrate our 
commitment to ensure that the United States is not a sanctuary 
for genocidaires, it also highlights the gap in our law that I 
have mentioned before.
    Whenever we can deport people to countries where they will 
be prosecuted for genocide committed in that territory, we 
should, and the United States has made great strides in 
strengthening legal systems in countries like Bosnia.
    But in other countries that have been ravaged by genocide, 
the legal system is in shambles, and let me just quickly say, 
for example, in Rwanda, which, at one point, had 130,000 
genocide suspects in jail waiting for prosecution, only 11 
lawyers survived the genocide.
    So while our attorney general is directed to consider 
options for prosecutions, very often, when the person in his 
hands is a suspected genocide perpetrator, his options are 
illusory.
    In closing, Mr. Chairman, those who commit genocide count 
on our acquiescence, confident that they will not be held 
accountable for crimes that we have a hard time even imagining.
    The Genocide Convention was meant to shatter that 
confidence and transform our enabling silence into mobilized 
action, grounded in law. By passing the Genocide Accountability 
Act of 2007, Congress would strike a major blow against the 
impunity that sustains perpetrators of genocide.
    Thank you, Mr. Chairman.
    [The prepared statement of Ms. Orentlicher follows:]

               Prepared Statement of Diane F. Orentlicher

    Mr. Chairman, Ranking Member Forbes, and distinguished members of 
this Subcommittee, it is an honor to appear before you. I am especially 
grateful for the opportunity to share my views about a subject that 
could hardly be more important and consequential--the role of the 
United States in combating genocide through the rule of law.
    As a party to the Convention on the Prevention and Punishment of 
the Crime of Genocide (``Genocide Convention''), which the United 
States ratified in 1988, the United States has recognized that genocide 
is a crime under international law and has vowed to prevent and punish 
it.\1\ Yet we have not always honored our commitment to prevent 
genocide when we have been in a position to act, and the principal law 
implementing our treaty obligation to punish genocide does not go as 
far as it should. In particular, it does not empower U.S. authorities 
to bring genocide charges against foreigners who are believed to have 
committed genocide abroad and have sought sanctuary in our country. My 
remarks this afternoon will focus on this gap, both because of its 
significant implications and because of the ease with which this 
problem can be fixed.
---------------------------------------------------------------------------
    \1\ Article I of the Convention provides: ``The Contracting Parties 
confirm that genocide, whether committed in time of peace or in time of 
war, is a crime under international law which they undertake to prevent 
and to punish.''
---------------------------------------------------------------------------
    As a foundation for my remarks, I would like to place the 
significance of current U.S. legislation concerning genocide against 
the broader backdrop of our decades-long national struggle to confront 
this extraordinary crime.
    As a nation, we have at times provided extraordinary leadership in 
confronting genocide and other mass atrocities--and, at critical times, 
we have faltered or failed when our consciences should have summoned us 
to respond to a real-time campaign of extermination.
    In our failures, we have scarcely stood alone. Every genocide that 
has been allowed to take place--or to continue unchecked once under 
way--represents an indelible stain on global conscience. For every 
State that has the capacity to counter the consuming carnage 
constituting genocide has a responsibility to do what it can to stop it 
in its tracks.

          LEMKIN'S LAW-MAKING GENOCIDE AN INTERNATIONAL CRIME

    This point may seem morally obvious, but it was an uphill struggle 
even to make genocide a crime in international law, much less to assure 
implementation of that law. Raphael Lemkin, the Polish scholar who 
devised the word genocide and then campaigned relentlessness for a 
treaty outlawing it, thought it unthinkable that international law did 
not criminalize violence whose aim is to obliterate a human community, 
not because of something they had done but because of who they are--
members of a religious community, an ethnic clan or a racial group. In 
fact, Lemkin realized, this all-too-familiar crime of annihilation did 
not even have a name that captured its unique depravity.
    Lemkin gave the crime a name, fashioned from the Greek word genos, 
meaning race or tribe, and the Latin root for killing, cide. It took 
longer, however, to persuade world leaders to outlaw genocide, although 
Lemkin campaigned relentlessly to make this happen. For Lemkin, it was 
essential to confront genocide through law--not an all-too-fragile code 
of conscience, but an enforceable law of humanity. Thus Lemkin would 
have been gratified by the premise implied by the name of this hearing, 
``Genocide and the Rule of Law.''
    Lemkin's tireless crusade culminated in 1948 when the fledgling 
United Nations General Assembly adopted the Convention on the 
Prevention and Punishment of the Crime of Genocide. But Lemkin did not 
live long enough to see his adoptive country, the United States, become 
a party to the treaty. Lemkin died in 1959, 29 years before the United 
States ratified the Genocide Convention.

                        THE GENOCIDE CONVENTION

    The Convention itself is brief, imposing just two principal duties: 
In its first article, the treaty confirms that genocide is a crime 
under international law which States parties undertake to both to 
prevent and to punish. Before the treaty elaborates on these two 
obligations, Article II sets forth what has become the authoritative 
definition of genocide under international law.
    To those who are unfamiliar with this area of law, the treaty's 
definition of genocide may seem surprisingly narrow. To constitute 
genocide, a perpetrator must have committed at least one of five 
enumerated acts and must have done so with the very specific and narrow 
intent to destroy, in whole or in part, a national, ethnic, racial or 
religious group ``as such.'' It is not enough that the perpetrator 
killed a large number of people who share, say, a common ethnic 
affiliation. Instead, the perpetrator must have intended through his 
acts to destroy the ethnic group itself, in its entirety or in 
substantial part.
    The five acts constituting genocide when committed with genocidal 
intent are:

        (a)
             Killing members of the targeted group;

        (b)
             Causing serious bodily or mental harm to members of that 
        group;

        (c)
             Deliberately inflicting on the group conditions of life 
        calculated to bring about its physical destruction;

        (d)
             Imposing measures intended to prevent births within the 
        group; and

        (e)
             Forcibly transferring children of the group to another 
        group.

                      THE DUTY TO PREVENT GENOCIDE

    As noted earlier, the first duty imposed by the Genocide Convention 
is to prevent genocide. For countries that have ratified the treaty, 
including of course the United States, this means not only taking 
action to combat conditions that are conducive to genocide in their own 
societies, but also taking effective action to stop genocide when they 
see it taking place beyond their shores. In short, the Convention 
recognizes, wherever genocide occurs, it engages the responsibility of 
countries' everywhere to take action in their power to bring it to an 
end.

                      THE DUTY TO PUNISH GENOCIDE

    The second duty assumed by parties to the Genocide Convention is to 
punish genocide when it occurs. The Convention provides not only that 
individuals committing genocide ``shall be punished,'' but also that 
conspiracy to commit genocide, direct and public incitement to commit 
genocide, attempt to commit genocide and complicity in genocide ``shall 
be punished.'' \2\ Of particular relevance to this hearing, the 
Convention requires States parties to enact legislation to give effect 
to the treaty, particularly by providing ``effective penalties for 
persons guilty of genocide'' or related acts, such as attempting to 
commit genocide.\3\
---------------------------------------------------------------------------
    \2\ Article IV, read in conjunction with Article III.
    \3\ Article V.
---------------------------------------------------------------------------
    The two obligations imposed by the convention--to prevent and to 
punish genocide--are related, of course: If each country made good on 
its promise to punish genocide whenever it occurred, the scope for this 
horrific brand of carnage would be radically diminished.

     UNITED STATES RATIFICATION AND IMPLEMENTATION OF THE GENOCIDE 
                               CONVENTION

    Once the United Nations adopted the Genocide Convention, it took 
the United States another forty years to ratify it. Congress paved the 
way for U.S. ratification in 1988 by enacting the Genocide Convention 
Implementation Act of 1987, known as the Proxmire Act for the Senator 
who (like Lemkin) tirelessly campaigned on behalf of the Genocide 
Convention--this time for U.S. ratification.
    It is the duty to punish genocide that the United States sought to 
implement through the Proxmire Act. That act, codified in section 1091 
of title 18 of the United States Code, makes it a federal crime to 
commit genocide; to attempt its commission; or to directly and public 
incite others to commit genocide when the offense is committed in the 
United States or the alleged offender is a U.S. national.
    When read together with other provisions of the federal criminal 
code concerning conspiracy and complicity, the Proxmire Act for the 
most part fulfills the legislative obligations concerning punishment 
set forth in the Genocide Convention. In fact, by making genocide a 
crime when committed abroad by a U.S. national, the Proxmire Act goes 
farther than what is required by the explicit text of the treaty. 
Article VI of the Genocide Convention explicitly requires prosecution 
only by the State in which genocide occurs or by an international 
criminal court, while not excluding other venues for prosecution.

                            GAPS IN U.S. LAW

    But if the Proxmire Act largely fulfilled the explicit legislative 
obligations relating to punishment imposed by the Genocide Convention, 
both the treaty itself and our implementing legislation have become 
anachronistic in light of broader developments in international 
criminal law during the past two decades. More important, our legal 
framework is not sufficient to ensure punishment of individuals who 
commit genocide and then seek sanctuary in this country.
    Let me first explain why the framework of prosecution reflected in 
current U.S. law is anachronistic. Specialized human rights treaties of 
more recent vintage than the Genocide Convention, such as the 1984 
Convention against Torture and the 2006 Convention on Enforced 
Disappearance, require States parties to establish their criminal 
jurisdiction over persons suspected of committing the core treaty 
crime--torture, for example, or enforced disappearance--not only when 
the crime was committed in their own territories or by one of their 
nationals, but also when it was committed outside their territories, 
even when the victims were not their nationals, when the alleged 
perpetrator is in their territory and is not extradited for trial in 
another jurisdiction or transferred to an international tribunal.
    States have long recognized that this option--that is, the ability 
to prosecute foreign nationals who have committed atrocious crimes 
abroad--must be available, not as a tool of first resort but instead 
one of last resort. For obvious reasons, this option must be available 
in situations where a person believed to have committed a crime of 
global concern enjoys impunity in the country where he or she committed 
her crimes and no other appropriate forum is available for prosecution. 
What has changed in recent decades is a markedly greater willingness by 
States to exercise jurisdiction in these situations. This change is 
reflected, among other ways, in the approach taken in the two treaties 
I just mentioned.
    Several developments have led a significant number of countries to 
adopt or enforce legislation establishing jurisdiction over genocide, 
wherever committed, if the perpetrator is in their territory. The 
developments underlying this trend include, tragically, the 1994 
genocide in Rwanda and ``ethnic cleansing'' in the former Yugoslavia, 
which included the 1995 Srebrenica genocide. These and other recent 
episodes of mass atrocity gave rise to the creation of several 
international tribunals, starting in 1993. To our credit, the United 
States took the lead in establishing these tribunals and has provided 
crucial support to their operation.
    The very establishment of these tribunals signaled a new 
international resolve to ensure that perpetrators of atrocious crimes 
would be prosecuted, and helped nurture an expectation that they would 
in fact face the bar of justice. Yet none of these tribunals would be 
able to prosecute more than a small fraction of perpetrators. In this 
setting, some countries began to prosecute perpetrators of mass 
atrocities, including genocide, who had sought haven in their 
territories.
    In contrast, the United States cannot prosecute foreigners who have 
committed international crimes other than torture and various acts of 
terrorism and then seek sanctuary here. Remarkably, we can prosecute a 
foreigner for torture but not genocide. Thus, if we discover that a 
notorious alleged perpetrator of the 1994 genocide in Rwanda is living 
in the United States--and in fact this has happened--our genocide law 
does not allow federal prosecutors to bring genocide charges against 
the suspect; we can only deport him.
    During the past eleven years, we have narrowed the impunity gap 
created by this loophole in our law, but we still have not done nearly 
enough. For example, a law enacted in 1996 \4\ permits the United 
States to transfer individuals indicted by either the International 
Criminal Tribunal for Rwanda or the International Criminal Tribunal for 
the former Yugoslavia, both of which have jurisdiction over genocide, 
to the relevant tribunal, and the United States has done so. But the 
Rwanda and Yugoslavia tribunals are in wind-up phase: they are no 
longer taking on new cases, and they never had the capacity to try more 
than a fraction of the atrocities that led to their creation.
---------------------------------------------------------------------------
    \4\ National Defense Authorization Act, Pub. L. No. 104-106, 
Sec. 1342, 110 Stat. 486 (1996).
---------------------------------------------------------------------------
    In 2004, Congress took another important step by amending our 
immigration law to expand grounds for denying admission to and 
excluding aliens on human rights grounds.\5\ Congress also directed the 
Attorney General, when considering appropriate action against aliens 
believed to be responsible for certain offences that include genocide, 
to give ``consideration'' to ``the availability of criminal prosecution 
under the laws of the United States'' or ``of extradition . . . to a 
foreign jurisdiction that is prepared to undertake a prosecution'' for 
the conduct that may underlie removal or denaturalization.\6\ While 
this is an important acknowledgment that persons suspected of genocide 
should be prosecuted in an appropriate jurisdiction, the Attorney 
General's options are unwisely limited.
---------------------------------------------------------------------------
    \5\ 8 U.S.C. Sec. Sec. 1182(a)(3)(E)(ii), 1227(a)(4)(D).
    \6\ 8 U.S.C. Sec. 1103(h)(3).
---------------------------------------------------------------------------
    As I have already noted, under current law the United States cannot 
prosecute a foreign national for genocide committed abroad, even if the 
victims included U.S. citizens. As for extradition to a foreign 
jurisdiction, in countries that have recently been scourged by genocide 
the judiciary is likely to be in shambles. Consider Rwanda. The Rwandan 
government estimates that over half a million people participated in 
the 1994 genocide and at one point had jailed some 130,000 suspects. 
Yet when the 1994 genocide was over, only eleven Rwandan lawyers 
reportedly survived. While estimates vary, at least 60,000 suspects are 
still believed to be in custody awaiting trial in Rwanda on charges 
relating to the 1994 genocide.
    And so when the Attorney General is directed to consider options 
for prosecuting a genocidaire in our midst, his options may prove 
largely illusory.
    The Genocide Accountability Act of 2007, which was adopted by 
unanimous consent in the Senate and has been introduced in the House, 
would fill the most significant gap in our law against genocide: It 
would make it possible for federal prosecutors to issue genocide 
indictments against foreign nationals who allegedly committed genocide 
abroad and then sought sanctuary here.
    In doing so, the legislation would hardly break new legal ground, 
even under United States law. As a party to the 1984 Torture 
Convention, the United States enacted legislation \7\ enabling U.S. 
courts to exercise criminal jurisdiction when the alleged offender is a 
U.S. national or when he or she ``is present in the United States, 
irrespective of the nationality of the victim or alleged perpetrator.'' 
Last December, the United States brought its first indictment under 
this law.
---------------------------------------------------------------------------
    \7\ Torture Convention Implementation, codified at 18 U.S.C. 
Sec. Sec. 2340-2340B.
---------------------------------------------------------------------------
    Nor would the Genocide Accountability Act of 2007 establish the 
United States as a forum of first resort for prosecuting genocidaires 
found in our territory. We would still be able to extradite a genocide 
suspect for trial abroad in a forum that may be more appropriate than 
the United States. But what the proposed law would do is enable U.S. 
prosecutors to ensure prosecution of those who have committed one of 
the most serious crimes imaginable when there is no realistic prospect 
of a fair prosecution in another forum. In doing so, we would strike a 
powerful blow against the impunity that encourages atrocious crimes.

                               CONCLUSION

    Those who commit genocide count on our acquiescence, confident that 
they will not be held to account for crimes that we can scarcely bear 
to imagine. The Genocide Convention was intended above all to shatter 
the confidence of genocidaires, transforming our enabling passivity 
into mobilized action grounded in law. Yet the United States is now 
legally disabled from taking one of the more effective steps we could 
and should take to deal with genocidaires in our own midst--bringing 
them to justice. By passing the Genocide Accountability Act of 2007, 
Congress would make a major contribution in combating the impunity that 
sustains genocidaires.

    Mr. Scott. Thank you.
    Mr. Fowler?

  TESTIMONY OF JERRY FOWLER, UNITED STATES HOLOCAUST MEMORIAL 
                     MUSEUM, WASHINGTON, DC

    Mr. Fowler. Thank you, Chairman Scott and distinguished 
Members of the Subcommittee, for this opportunity to address 
one of the most urgent problems confronting humanity, the 
problem of genocide.
    Your leadership on this issue is vitally important, and I 
thank you for it.
    I have the privilege of being the director of the Committee 
on Conscience at the United States Holocaust Memorial Museum, 
and one of the ways in which the museum seeks to honor the 
memory of those who suffered in the holocaust is working to 
prevent and stimulate effective responses to contemporary 
genocide.
    This key aspect of our living memorial was part of the 
original vision articulated by Elie Wiesel and the President's 
commission on the holocaust in 1979, who saw the need to 
prevent genocide as an obligation of a holocaust memorial. As 
they put it, ``A memorial unresponsive to the future would 
violate the memory of the past.''
    Today, we are confronting genocide in the Darfur region of 
Sudan. It is a massive catastrophe and a hugely complex one, as 
well. It is vital to acknowledge the complexity, but not lose 
sight of the moral contours of the situation, and the moral 
contours are these.
    Hundreds of thousands of civilians have perished and over 
two million have been driven from their homes. Thousands of 
women and girls have been raped and hundreds of thousands of 
lives are hanging in the balance, even as we speak today.
    The primary responsibility for this catastrophe rests with 
the government of Sudan. Not only has that government 
manifestly failed to protect its citizens from this massive 
violence, in the vast majority of cases, the government has 
actually instigated it.
    In May 2004, I went to Chad and traveled along the Chad-
Sudan border, meeting refugees from Darfur, listening to their 
stories, seeing the incredibly harsh desert into which they had 
been driven. And I should add that at that point in time, the 
people in Chad were receiving international assistance, but the 
government in Sudan was still blocking international aid and 
assistance to people driven into the desert who were not able 
to leave Darfur.
    One day near the end of that trip, I met a woman named 
Hawa. I interviewed her in the small makeshift hut she had 
constructed out of sticks and some plastic sheeting that the 
U.N. had given her.
    We were inside this hut along with her four children, an 
elderly woman, and my translator. Outside it was well over 100 
degrees and inside, the atmosphere was oppressive. She told me 
about the day her village was attacked. She told me that her 
father was killed, her brother was killed, a cousin was killed, 
30 people in her village were killed that day, and her mother 
disappeared.
    And I have to admit that I suddenly felt overwhelmed by her 
suffering and by all the suffering that I had heard from 
refugees day after day after day, and I felt compelled to get 
out of that hut.
    So I thanked her for sharing her story and I started to 
crawl out, when she started talking in a low voice. And I 
looked over at her and tears were streaming down her cheeks and 
she was asking, ``What about my mother? What about my mother? I 
don't know if she is alive or if she is dead.''
    And I felt as though she was asking me for an answer, which 
I couldn't possibly give her. All I could think to do was to 
ask her her mother's name and promise to bring her name back to 
Americans. And her mother's name is Khadiya Ahmed. Khadiya 
Ahmed.
    So I am telling you that name and telling you that as vast 
as this catastrophe is, as genocide always is, as many people 
as it has affected, it is also about one woman who didn't know 
where her mother was and probably won't until there is peace 
and security in Darfur.
    One thing that I have come to believe with all my heart is 
that what we do, whether we act or remain indifferent has an 
effect on those around us. If we are silent, others believe 
silence is permissible, perhaps even necessary. If we speak 
out, others will be encouraged to speak out.
    As Elie Wiesel has said many times, ``Silence only helps 
the perpetrators, never the victims.''
    In the main hall of the Holocaust Memorial Museum is 
inscribed a passage from the book of Isaiah, ``You are my 
witnesses.'' This passage works on several levels. Most 
obviously, it is underscoring the fact that visitors to the 
museum are themselves becoming witnesses to the enormity of the 
holocaust.
    That passage from Isaiah also is a challenge, a challenge, 
using the present tense, to imply a continuing obligation on 
all of us to bear witness to the crimes and injustice of today, 
as well as the crimes and injustice of yesterday.
    The Holocaust Memorial Museum has been an essential part of 
and has helped stimulate a burgeoning constituency of 
conscience that is standing up and speaking out for those whose 
lives are hanging in the balance.
    Citizens from all walks of life have joined together to say 
that they will not stand silently by while genocide happens on 
their watch, and more join that constituency every day. They 
are standing up and bearing witness and shaping society by 
their reactions.
    That constituency of conscience is growing, and any 
political leader who ignores its voice does so at his peril. By 
authorizing the creation of the Holocaust Memorial Museum, a 
memorial to victims of a particular genocide, Congress placed 
in the metaphorical heart of our nation the memorial core of 
Washington, DC, the universal principle that indifference to 
genocide is not an American value.
    Living up to this principle is an enormous task, but not an 
impossible one, and the challenge that faces each and every one 
of us is to transform that principle into a practical reality.
    Thank you.
    [The prepared statement of Mr. Fowler follows:]

                   Prepared Statement of Jerry Fowler

    Chairman Scott, Ranking Member Forbes, distinguished members of the 
subcommittee, thank you for this opportunity to address one of the most 
urgent problems confronting humanity--the problem of genocide. As my 
testimony will make clear, your leadership on this issue is vitally 
important and I thank you for it.
    I have the privilege of being the director of the Committee on 
Conscience at the United States Holocaust Memorial Museum. As you know, 
the Holocaust Memorial Museum is our national memorial to victims of 
the Holocaust, a public-private partnership supported both by the 
Federal government and the generous donations of thousands upon 
thousands of ordinary Americans. In the relatively brief period that it 
has been open, it has achieved worldwide stature as a steward of 
Holocaust memory and a voice of moral authority.
    One of the ways in which we seek to honor the memory of those who 
suffered in the Holocaust is by working to prevent and stimulate 
effective responses to contemporary genocide. This key aspect of our 
living memorial was part of the original vision articulated by Elie 
Wiesel and the President's Commission on the Holocaust back in 1979. In 
their report to President Jimmy Carter recommending the creation of a 
national memorial, they noted that of all the issues they looked at, 
none was more perplexing or more urgent than trying to prevent future 
genocide. And they saw the need to prevent genocide as an obligation of 
a Holocaust memorial. As they put it, ``a memorial unresponsive to the 
future would violate the memory of the past.'' Memory, in other words, 
imposes obligations.
    Events since the Museum opened in 1993 have proved the sad wisdom 
of the Commission's words. Even as the Museum was being dedicated in 
April 1993, mass violence was being used against civilians in Bosnia as 
the former Yugoslavia disintegrated. That violence did not incite an 
effective international response, but it did bring us a new euphemism 
for genocide and crimes against humanity: ``ethnic cleansing.'' And 
before it was over, in July 1995, the world witnessed the worst single 
massacre on the European continent since the end of the Holocaust, near 
a place called Srbrenica. More than 7,000 Bosnian Muslim men and boys 
who had taken refuge with their families in a so-called ``UN safe 
area'' were separated from their wives and daughters and sisters and 
handed over to the Bosnian Serb military, who proceeded to 
systematically execute them. The two individuals most responsible for 
that massacre, incidentally, Radovan Karadzic and Ratko Mladic, are 
still at large even though they have been under indictment by the 
International Criminal Tribunal for the former Yugoslavia for more than 
a decade.
    A year to the month after the Museum opened, in April 1994, 
genocide began in the tiny central African country of Rwanda. In 100 
days, as many as 800,000 people were murdered in a campaign that was 
planned and executed by extremist leaders of the country's Hutu 
majority. And I want to emphasize that it, like all genocides, was 
planned and executed. It was not ancient tribal hatreds erupting. It 
was not, as was suggested at the time, what ``those people do from time 
to time.'' It was a conscious crime, organized by human beings making 
deliberate choices. Three out of every four members of the Tutsi 
minority were slaughtered. Mass rape of Tutsi women was also used as 
part of the program of destruction, as indeed it was in Bosnia as well.
    These events confirmed, if such confirmation was necessary, that 
genocide and related crimes against humanity did not end with the 
Holocaust. Far from it. The willingness of political leaders to use 
mass violence against civilians to achieve their goals is an ever 
present menace to humanity and will be so long as those leaders believe 
that their crimes will be met with indifference and impunity.
    The juxtaposition of Bosnia and Rwanda with the opening of the 
Holocaust Memorial Museum gave added urgency to a question facing the 
Museum's leadership--how should the nation's Holocaust memorial respond 
when genocide or related crimes against humanity threaten today? The 
Museum's governing Council, recalling the Presidential Commission's 
view of the obligations of memory, concluded unanimously that silence 
was not an option. It created a Committee on Conscience to guide the 
Museum's genocide prevention and response activities--in short, to 
alert the national conscience to threats of genocide and related crimes 
against humanity.
    But all of this begs the larger question: what is our 
responsibility--collectively and individually, whether we be private 
citizens or public servants--when genocide is threatened or actually 
occurring?
    To answer that question, let me start by invoking the work of Ervin 
Staub. He was a young boy in Hungary who was rescued from the Nazis by 
Raoul Wallenberg, the courageous Swedish diplomat who rescued thousands 
of Hungarian Jews, including a distinguished member of this House, 
Congressman Tom Lantos. Today, Staub is a psychologist at the 
University of Massachusetts-Amherst. He has written a classic work 
about the Holocaust and mass violence called The Roots of Evil. In it, 
he asks, as a psychologist, how did this happen? In a chapter on 
bystanders, he explained that
    [b]ystanders, people who witness but are not directly affected by 
the actions of perpetrators, help shape society by their reactions. . . 
. They can define the meaning of events and move others toward empathy 
or indifference. They can promote values and norms of caring, or by 
their passivity or participation in the system they can affirm the 
perpetrators.
    That is a powerful truth he has articulated: ``People who witness . 
. . help shape society by their reactions. . . . They can promote 
values and norms of caring, or . . . they can affirm the 
perpetrators.''
    What we do, whether we act or remain indifferent, has an effect on 
those around us. If we are silent, others believe silence is 
permissible, perhaps even necessary. If we speak out, others will be 
encouraged to speak out. As Elie Wiesel has said many times, silence 
only helps the perpetrators, never the victims.
    In the main hall of the Holocaust Memorial Museum is inscribed a 
passage from the book of Isaiah, ``You are my witnesses.'' This passage 
works on several levels. Most obviously, it is underscoring the fact 
that visitors to the Museum are themselves becoming witnesses to the 
enormity of the Holocaust.
    It also echoes the explanation that General Dwight Eisenhower gave 
for insisting on visiting newly liberated camps. ``I made the visit 
deliberately,'' he said, ``in order to be in a position to give first 
hand evidence of these things if ever, in the future, there develops a 
tendency to charge these allegations to propaganda.'' Witness, in other 
words, protects against the distortion or denial of history.
    Finally, the passage from Isaiah is a challenge--a challenge--using 
the present tense to imply a continuing obligation on all of us to bear 
witness--to the crimes and injustice of today as well as the crimes and 
injustice of yesterday. And as Professor Staub says, ``People who 
witness help shape society by their reactions.''
    Today, we are confronting genocide in the Darfur region of Sudan. 
It is a massive catastrophe, and a hugely complex one as well. It is 
vital to acknowledge the complexity, but not lose sight of the moral 
contours of the situation. And the moral contours are these: hundreds 
of thousands of civilians have perished, and over two million have been 
driven from their homes. Thousands of women and girls have been raped. 
And hundreds of thousands of lives are hanging in the balance even as 
we speak today. The primary responsibility for this catastrophe rests 
with the government of Sudan. Not only has that government manifestly 
failed to protect its citizens from this massive violence, in the vast 
majority of cases the government has actually instigated it.
    In May 2004, I went to Chad and traveled along the Chad-Sudan 
border, meeting refugees, listening to their stories, seeing the 
incredibly harsh desert into which they had been driven. The daily 
temperatures at that time of year rose to 115 to 120 degrees. On many 
days there was a sandstorm, cutting visibility to a hundred yards. One 
day near the end of that trip, I met a woman named Hawa. I interviewed 
her in the small makeshift hut she had constructed out of sticks and 
some plastic sheeting that the UN had given her. We were inside this 
hut along with her four children, an elderly woman and my translator. 
Outside it was well over 100 degrees, and inside the atmosphere was 
oppressive.
    She told me about the day her village was attacked. She told me 
that her father was killed, her brother was killed, a cousin was 
killed. Thirty people in her village were killed, and her mother 
disappeared.
    I have to admit that I suddenly felt overwhelmed by her suffering, 
by all the suffering I had been witnessing in those days and felt 
compelled to get out of that hut. I thanked her for sharing her story 
and started to crawl out, when she started talking in a low voice. I 
looked over at her, and tears were streaming down her cheeks. She was 
asking, ``What about my mother? What about my mother? I don't know if 
she is alive or if she's dead?''
    I felt as though was asking me for an answer, which I could not 
possibly give her. All I could think to do was to ask her her mother's 
name and promise to bring her name back to Americans. Her mother's name 
is Khadiya Ahmed--actually a common woman's name in Darfur. So I'm 
telling you that name, and telling you that as vast as this catastrophe 
is, as many people as it has affected, it also is about one woman who 
didn't know where her mother was and probably won't until there is 
peace and security in Darfur.
    The Holocaust Memorial Museum has been an essential part of, and 
has helped stimulate, a burgeoning constituency of conscience that is 
standing up and speaking out for those whose lives are hanging in the 
balance. We joined with colleagues to found the Save Darfur Coalition 
and worked with a tireless group of Georgetown students to help them 
launch Students Taking Action Now: Darfur (STAND), which now has 
expanded to hundreds of campuses worldwide. Citizens from all walks of 
life have joined together to say that they will not stand silently by 
while genocide happens on their watch and more join every day. They are 
standing up and bearing witness and shaping society by their reactions. 
That constituency of conscience is growing, and any political leader 
who ignores its voice does so at his peril.
    By authorizing the creation of the Holocaust Memorial Museum, a 
memorial to victims of a particular genocide, Congress placed in the 
metaphorical heart of our nation--the memorial core of Washington, DC--
the universal principle that indifference to genocide is not an 
American value. Living up to this principle is an enormous task, but 
not an impossible one. And the challenge that faces each and every one 
of us is to transform that principle into a practical reality.

    Mr. Scott. Thank you.
    Ms. Smith?

TESTIMONY OF GAYLE E. SMITH, SENIOR FELLOW, CENTER FOR AMERICAN 
                    PROGRESS, WASHINGTON, DC

    Ms. Smith. Good afternoon, Mr. Chairman, and thank you for 
the invitation to testify.
    I am not testifying here today as a lawyer. I am one of the 
few people in Washington who is not an attorney. I am here as a 
practitioner and base my remarks and views on having spent 
considerable time in the field where I have seen genocide up 
close and personal, and as a former policymaker, where I 
grappled with it in government.
    The Genocide Accountability Act, in my view, is of extreme 
importance, first and foremost, as a matter of principle. U.S. 
prosecutors have jurisdiction over cases involving terrorism 
and torture, even if the action occurred outside the United 
States.
    Logic demands that if tortures can be held accountable in 
U.S. courts, so, too, must the perpetrators of genocide. But 
equally as important, I think it is good policy, and I want to 
briefly outline five reasons why I think that is so.
    First, it reinforces our commitment to the rule of law and, 
in particular, lends weight to the convention on the prevention 
and punishment of the crime of genocide, a genocide that has 
been weakened by the world's modern failures and is in 
desperate need of practical application.
    Second, it will contribute to breaking the cycle of 
impunity. Genocides often occur in cycles. What we saw in 
Rwanda in 1994 was not the first of its kind.
    Third, by an enacting legislation that will amend our laws 
to hold the perpetrators of genocide to account, we send a 
real-time signal to perpetrators of genocide today that there 
is a mechanism for accountability and a cost for their actions.
    One of the challenges we face in Darfur right now is that 
the government and its proxy forces in the militia believe that 
there is no cost for their actions. This is a small, but 
extremely significant signal that, yes, indeed, there is a 
price to be paid.
    Fourth, as a matter of policy, it puts us on the road 
starting to act on the responsibility to protect, the doctrine 
that posits that government can't or won't protect its own 
people, the international community will act. It is a doctrine 
that embraces our common humanity, but one that is, at present, 
empty. This one move can start to put flesh on the bones of the 
doctrine that might signal to the rest of the world that we 
stand for and believe and hope in their futures.
    But, finally, Mr. Chairman, at the end of the day, this 
will make a difference in people's lives. You may recall a case 
in the 1990's where a young Ethiopian woman working as a 
cleaner in a hotel in Atlanta stood before the elevator, and 
when the doors opened, she was facing the man who had tortured 
her during a period in that country's history known as the 
``red terror.''
    She called her friends who were held with her and confirmed 
his identity. She had them sneak a peak at him from behind 
closed doors. They confirmed that this was the man that had 
held them upside down, prodded them with electrical wires, and 
tortured them repeatedly for weeks.
    Because of our law, they were able to bring him to trial on 
grounds of torture in the United States. Because of our law, 
they won. The woman said afterwards that she had remained quiet 
for 15 years, and when she won, she said, ``Before, when I saw 
him, I was tied up and hanging upside down. But this time, I am 
standing up and facing him. I don't have to be afraid of him.''
    She went on to say that ``This is everybody's case and not 
just mine.''
    Mr. Chairman, genocide knows no borders. This is not just 
someone else's case or someone else's crime. It is ours, and I 
am encouraged that we will soon act to make that so.
    Thank you.
    [The prepared statement of Ms. Smith follows:]

                  Prepared Statement of Gayle E. Smith









    Mr. Scott. Thank you. And I want to thank all of our 
witnesses for their testimony.
    We will now recognize Committee Members for questions for 5 
minutes. Then I will recognize myself for the first 5 minutes 
and start with Mr. Rosenbaum.
    The present jurisdiction for prosecutions for genocide, how 
do they compare with the present jurisdiction for torture?
    Mr. Rosenbaum. As has been said by other witnesses, in the 
case of genocide, the crime has to have been committed either 
within the United States or by a United States citizen for a 
Title 18 genocide prosecution.
    That, of course, doesn't cover extradition and removal and 
other tools that are available to us.
    In the case of torture, the perpetrator has to be either in 
the United States or a U.S. national abroad.
    Mr. Scott. And if they are in the United States, they can 
be prosecuted for the torture that happened abroad.
    Mr. Rosenbaum. Yes, Mr. Chairman.
    Mr. Scott. Now, you have found people who allegedly 
committed genocide in the United States and you have prosecuted 
them, but not for genocide, is that right?
    Mr. Rosenbaum. There have, as of yet, been no Title 18 
prosecutions for genocide.
    Mr. Scott. But you have been able to prosecute them for 
other things.
    Mr. Rosenbaum. Yes, sir.
    Mr. Scott. In some cases, you have been able to extradite 
them back to the country of origin and they can get prosecuted 
there, right?
    Mr. Rosenbaum. Yes, Mr. Chairman.
    Mr. Scott. OKAY. What new law do you need to be able to 
prosecute them here?
    Mr. Rosenbaum. Well, I am not in a position, this being an 
oversight hearing, to offer an opinion on legislation that is 
needed. Obviously, there is the Genocide Accountability Act 
that has been mentioned.
    Mr. Scott. Let me ask, without giving an opinion, would the 
Genocide Accountability Act give you the jurisdiction that 
would allow the prosecution in the United States?
    Mr. Rosenbaum. It would not give us any jurisdiction over 
people who are in the United States who already participated in 
genocide, but, yes, in future cases, future genocides, there 
would be some number of cases presumably where individuals come 
here and we would then have jurisdiction to prosecute.
    Mr. Scott. Let me make sure I understand this. You are 
saying that genocide that has already occurred would not be 
prosecutable, but prospectively, they would be subject to 
jurisdiction under the Genocide Accountability Act.
    Mr. Rosenbaum. As I read that statute, yes, Mr. Chairman.
    Mr. Scott. And under that act, when would the court 
determine whether or not genocide had occurred? Would that have 
to be decided independently by the United Nations or some 
independent or would that be decided during the trial itself?
    Mr. Rosenbaum. I assume the latter. I don't see any 
reference in the statute or in the bill to who makes that 
decision. So I assume that it would be the case that it is done 
in the manner of other criminal offenses.
    Mr. Scott. Thank you. My time is probably up.
    The gentleman from North Carolina, Mr. Coble?
    Mr. Coble. Thank you, Mr. Chairman.
    Good to have you all with us.
    Mr. Rosenbaum, let me follow up on the Chairman's question, 
to be sure I understand it.
    Is it true that we cannot indict someone for genocide if it 
was committed outside the United States, even if the victim or 
the accused is an American citizen?
    Mr. Rosenbaum. We can indict, Congressman, if the 
perpetrator is an American citizen.
    Mr. Coble. Now, what benefit will be forthcoming if H.R. 
2489 is passed? Which I happen to think is a good piece of 
legislation, by the way.
    Mr. Rosenbaum. Well, I am not here to, with respect, 
Congressman, to opine on benefits. I can say what the statute 
would do, and I say that because there is, at this point, no 
formal Administration position on the bill.
    That having been said, of course, the Department of Justice 
broadly supports the goals of bringing genocidaires to justice.
    Mr. Coble. I think the goals are indeed commendable.
    Let me try maybe a modified extension of the other 
question.
    Can we indict one for torture, material support for 
terrorism, terrorism financing, and hostage-taking if these 
acts occur outside of the United States' territorial boundary?
    Mr. Rosenbaum. I am not an authority on all of those 
statutes, Congressman. I do know something about the torture 
statute and generally about terrorism offenses, and so the 
answer to your question is, so far as I know, generally, yes.
    Mr. Coble. Professor, is it your belief that H.R. 2489, if 
enacted, is constitutional?
    Ms. Orentlicher. I can't think of any reason why it 
wouldn't be constitutional.
    Mr. Coble. I am sure some naysayers probably will find some 
reason for it. But as I said before, I think this is a good 
approach, and I embrace it warmly.
    Mr. Fowler, if enacted, the bill at hand, and, also, Ms. 
Smith, what impact would it have upon other countries, in your 
opinion?
    Mr. Fowler. Well, I think on an issue like this, in 
particular, the United States sets a standard for what other 
countries do, and countries look at our practices, for better 
or for worse, in modeling their own behavior. So I think it 
would set a standard.
    Mr. Coble. I would think it would not negatively impact. 
Would you concur with that?
    Mr. Fowler. Yes, sir.
    Mr. Coble. Ms. Smith?
    Ms. Smith. Yes. And I would simply add that for countries 
that may, in fact, at present, be committing acts of genocide, 
it would send the reverse signal, and I think cause them to 
think twice both, obviously, before sending people here 
believing they can seek safe haven in the United States, but 
also, again, understanding the United States will impose a cost 
for their action.
    Mr. Coble. I got you. Thank you all for your testimony.
    I yield back, Mr. Chairman.
    Mr. Scott. Thank you.
    The gentleman from Georgia, Mr. Johnson?
    Mr. Johnson. Thank you, Mr. Chairman.
    I would like to commend the members of the panel for your 
work in this very important field, which is often something 
that is taken for granted, perhaps, by persons who have never 
been victimized or even understand what genocide is.
    Certainly, I am sure that your work doesn't pay a whole lot 
and you are not in it for the money, you are in it for this 
pursuit of justice. And so I must commend you for your 
involvement in this area.
    I would take the opportunity to make sure that the public 
at large knows what genocide actually is. In 1948, the United 
Nations General Assembly adopted the convention on the 
prevention and punishment of the crime of genocide, and it 
imposes two core obligations on participating states.
    First, states parties undertake to prevent genocide and, 
second, they commit to punish genocide, as well as several 
related acts, such as attempting to commit genocide.
    And in 1987, Congress enacted legislation to bring U.S. law 
into conformity with the genocide convention and the genocide 
convention defines genocide as one of five enumerated acts, 
when they are committed with the intent to destroy, in whole or 
in part, a national ethnical, racial or religious group, as 
such.
    The acts that constitute genocide, when committed with this 
very specific intent, are the killing of members of the group; 
B, causing serious bodily or mental harm to members of that 
group; C, deliberately inflicting on the group conditions of 
life calculated to bring about its physical destruction; D, 
imposing measures intended to prevent births within the group; 
and, E, forcibly transferring children of the group to another 
group.
    To constitute genocide, these acts must be undertaken with 
the aim of destroying the targeted group or a substantial part 
of that group, as such.
    Having said that, I would like to ask how many countries 
have adopted legislation establishing jurisdiction over 
genocide. Anyone could answer.
    Ms. Orentlicher. I don't know the exact number, but quite a 
few countries have for some time been able to do that. An 
increasing number of states in recent years have adopted 
legislation that enables them to prosecute genocide that occurs 
outside their territory.
    During the 1990's, a number of countries, including 
Germany, prosecuted people for genocide committed during the 
conflict in the former Yugoslavia and in Rwanda.
    Those events, in fact, provided one of the main impetuses 
for countries to either enforce statutes they had had on the 
books for a long time but had not an occasion to use, or to 
pass legislation that they suddenly saw a need for.
    In the wake of these conflicts, refugees were having 
experiences much like the type of experience Ms. Smith 
described in Atlanta. They would see the people who had 
committed genocide enjoying refuge in Germany, for example, and 
they would say, ``This is the person who participated in the 
genocide that claimed my family.''
    And so prosecutions have taken place in a number of 
countries. So we are not, unfortunately, in the lead on this, 
but it is not unusual to have this kind of legislation.
    Mr. Johnson. Now, Ms. Smith, the case that you spoke of in 
Atlanta, was the person who was spotted by the victim, was he 
actually prosecuted or was it a civil proceeding, a civil suit? 
Was it a criminal prosecution?
    Ms. Smith. No. It was a civil suit. But I think, 
interestingly, I was living in Africa at the time and I will 
tell you that the story of that suit spread across the 
continent like wildfire. It was known in Ethiopia, it was known 
in Rwanda, it was known in the Congo, it was known in Sudan.
    And, again, it may seem a small and single suit, but it is 
one that sent a message I believe prosecutions for genocide 
would also do.
    Mr. Johnson. Certainly. Was there any reason why that 
individual was not prosecuted criminally?
    Ms. Smith. I would have to defer to my colleagues, who are 
lawyers. Do you know?
    Ms. Orentlicher. We have had a law, I think it is for about 
10 years, that enables us to bring--this was the law that was 
discussed earlier--that enables us to bring torture 
prosecutions against foreigners particularly in these kinds of 
situations.
    It has been difficult to develop the evidence to bring 
those cases, and so far there has actually been only one 
prosecution instituted for torture as a crime under the law. 
The first indictment was brought last December.
    Mr. Johnson. Did you have something to add, sir?
    Mr. Rosenbaum. I am generally familiar with that case, and 
I believe it was the case and, of course, it is a torture case, 
not a genocide case--that the crimes took place before our 
Federal torture statute in Title 18 went into effect, which was 
in November 1994.
    Mr. Johnson. Have there been any genocide prosecutions in 
the United States, that you know of, Mr. Rosenbaum?
    Mr. Rosenbaum. No, Congressman, there have not.
    Mr. Johnson. And what would be the reason for that?
    Mr. Rosenbaum. In general, our approach has been to 
extradite and remove individuals believed to have taken part in 
genocide to the countries in which those crimes took place, so 
that the people of those countries can judge the perpetrators, 
the alleged perpetrators, and see up close justice being done.
    There are, as has been mentioned, as well, the terms of the 
statute which have to be satisfied in order for us to be able 
to prosecute.
    Mr. Scott. The gentleman's time has expired.
    Mr. Johnson. Thank you.
    Mr. Scott. The gentleman from Ohio, Mr. Chabot?
    Mr. Chabot. Thank you very much, Mr. Chairman.
    I want to thank the witnesses for their testimony here this 
afternoon. I know we have a vote on the floor, so I will try to 
be relatively brief.
    Two months ago, I was in Darfur with a couple of my 
colleagues, Sheila Jackson Lee from Texas and Adrian Smith from 
Nebraska. We went to a refugee camp. Abu Shouk was where we 
were, which is in, actually, northern Darfur, and we obviously 
learned a lot.
    We have been following this, to the degree that one can in 
Congress when you are on the other side of the world, but 
seeing it firsthand is something else. And it really is, to my 
knowledge, one of the greatest human tragedies that we have 
seen in many years on earth, really, 200,000 to 400,000 people 
having lost their lives, 2.5 million people who have been 
displaced either over into Chad or in camps within Darfur 
itself.
    And, of course, there are 6,000 troops there, African Union 
troops. The hybrid force is going to be going in there, but the 
Sudanese government seems to be dragging its feet, finding 
excuses to draw this process out, and now there have been 
attacks on NGO folks and people just trying to help are being 
attacked.
    Some of it seems to be banditry, car-jackings and the rest. 
Some of it seems to be really intimidation. But as you all 
know, what ultimately happened is you had the--typically, what 
would happen is you would have a village that would be bombed, 
either by plane or helicopter, and then the Janjaweed would 
come in shortly after on horseback or on camels and would rape 
and pillage and destroy.
    And the horrors that took place and the stories that we 
heard, and you have all heard them, as well, Mr. Fowler, in 
particular. You mentioned what you saw in the camps in Chad.
    My question is, and I have got a number of them, but I will 
just limit it to one at this point, the Janjaweed was 
essentially used by the government----
    Mr. Scott. If the gentleman would suspend for just a 
minute.
    Mr. Chabot. I would be happy to.
    Mr. Scott. There is a situation outside the door. I would 
ask people not to use these two doors for a few minutes.
    The gentleman can----
    Mr. Chabot. To what extent could government officials in 
Sudan or leaders in the Janjaweed be subject to either existing 
laws or this legislation, if it would become law, and how could 
that be a tool for improving conditions on the ground, I guess 
is pretty much what I wanted to go to.
    Ms. Smith?
    Ms. Smith. Sure. There are members of the government, a 
member of the Janjaweed militia, as well as, in fact, one of 
the rebels who had been indicted by the international criminal 
court. So there are cases internationally, but they have been 
indicted for crimes against humanity and not genocide.
    In our case, given that both the executive branch and the 
Congress have deemed this crisis genocide, I would think that 
it would be possible to, on that basis, be able to either move 
against or at least question some senior government officials 
by virtue of their presence in the United States.
    I think the other thing that it would do, quite frankly, 
is, again, reinforce this notion that there is a cost. It is an 
extraordinary thing. For almost 5 years, over two million 
people have been ripped from their homes. Women have been 
raped. Their communities have been destroyed.
    It goes on. There is now more violence in the camps. It is 
absolutely unchecked. I was out there just a couple of weeks 
ago, and it grows worse by the day.
    But, quite frankly, the government and the militia forces 
have gotten away with it. The signal from the international 
community is it is really a shame, but never mind.
    So, again, I think that this does offer us the opportunity 
to say to the Sudanese government, as the United States 
government, ``We are serious about this, you will not find safe 
haven in the United States and if, indeed, you commit acts of 
genocide, we will hold you accountable.''
    I don't think it is enough to tip the balance. I do think 
it is enough to, at least around the edges, force them to 
recalibrate their calculations.
    Mr. Chabot. Thank you. I would just note that even in the 
camps, as you mentioned, the people aren't really safe. There 
is gunfire at night that scares the heck out of the kids. You 
have got men coming in over the walls or over the fences and 
intimidating and attempting to rape women in the places and, of 
course, when they go out for firewood, they are subject to the 
Janjaweed.
    I think Mr. Rosenbaum wanted to say something. Then I will 
yield back after him, if I can.
    Mr. Rosenbaum. Thank you, Congressman.
    If I might add, perpetrators in Darfur will know that this 
is not a country in which they have any possibility of finding 
safe haven. As Ms. Smith noted, our cases are reported in 
Africa and around the world.
    We have a very robust program that we run in conjunction 
with our partners at Immigration and Customs Enforcement (ICE), 
an extraordinary partnership in excluding perpetrators of 
genocide, war crimes, and crimes against humanity, identifying 
any who might come here and bringing whatever legal action we 
can, usually with the goal of removing them to a place in which 
they can be prosecuted criminally.
    But when we can prosecute criminally here, that is almost 
always the preferred recourse and the one to which we turn.
    I would note that the Assistant Attorney General in charge 
of the Criminal Division, Alice Fisher, recently appointed a 
counsel solely to handle these kinds of cases, to advise her, I 
should say, on these kinds of cases.
    We have had a Criminal Division since well before World War 
II, and this is the first time, the first Administration in 
which someone has been designated to serve in that capacity, 
and I think it is a very good indication of the Justice 
Department's commitment to ending impunity.
    Mr. Chabot. Thank you. Thank you, Mr. Chairman.
    Mr. Scott. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Forbes?
    Mr. Forbes. Mr. Chairman, I would yield my time to the 
Chairman.
    Mr. Scott. I just had one follow-up question, Mr. 
Rosenbaum, and that is you had indicated that the Genocide 
Accountability Act may not cover past acts of genocide.
    This being just a jurisdictional bill, why would that be 
subject to ex post facto consideration?
    Mr. Rosenbaum. I should be careful and say that I am not 
speaking on the basis of having seen an analysis of the bill, 
but rather just on my assumption as a career Federal 
prosecutor, that a bill that covers or that renders people 
prosecutable has to be prospective, lest it violate the ex post 
facto clause of the United States Constitution.
    But we have two other lawyers here, one of whom is a law 
professor, and I haven't conferred with them. I don't know what 
their view would be.
    Mr. Scott. Do either of the law professors have a different 
view on that?
    Ms. Orentlicher. I have not seen an analysis of this issue 
either, and I am not sure how it would come out. As you 
suggest, this could be seen as simply a jurisdictional bill 
and, certainly, under international law, there would not be any 
retroactivity issues.
    That is, the prohibition of retroactive punishment under 
international law does not bar prosecuting someone for 
genocide, which has long been established as a crime under 
international law.
    This llegislation, as you suggest, would provide another 
forum for prosecuting something that is already criminal. But I 
also would not be surprised if Mr. Rosenbaum's assumption about 
letislative intent were correct.
    Mr. Scott. We will do an analysis then. Appreciate the 
answers.
    Are there any other questions?
    If there are no further questions, the hearing standards 
adjourned at this point. If someone could ascertain whether or 
not the hall has been opened.
    Pending that, the Committee hearing is now adjourned. I 
thank the witnesses for their testimony.
    [Whereupon, at 2:37 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Maxine Waters, a Representative in 
  Congress from the State of California, and Member, Subcommittee on 
                Crime, Terrorism, and Homeland Security

    I thank Chairman Bobby Scott and Ranking Member Randy Forbes for 
organizing this hearing on ``Genocide and the Rule of Law.''

               GENOCIDE AND THE LAWS OF THE UNITED STATES

    In 1948, the United Nations General Assembly adopted the 
``Convention on the Prevention and Punishment of the Crime of 
Genocide,'' also known as the Genocide Convention.
    The Genocide Convention requires states to make efforts to prevent 
genocide as well as punish acts of genocide. The purpose of today's 
hearing is to discuss ways to update and revise U.S. laws to allow us 
to prosecute genocide more effectively, when we have the opportunity to 
do so.
    Under current law, the United States cannot prosecute a person for 
an act of genocide, unless the act was committed within the United 
States, or unless the alleged offender is an American citizen. In 
contrast, many other federal crimes, such as torture, hostage taking, 
and terrorism financing, allow extraterritorial jurisdiction for crimes 
committed outside the United States by non-U.S. nationals. The Justice 
Department reportedly has identified individuals who are living in the 
United States and who participated in the Rwandan and Bosnian 
genocides. However, the Justice Department cannot arrest or prosecute 
these individuals, because they are not American citizen and the 
genocides in which they participated did not take place in the United 
States.
    In order to close this loophole, my colleague from California, 
Congressman Howard Berman, introduced H.R. 2489, the Genocide 
Accountability Act of 2007. Congressman Berman's legislation amends the 
federal criminal code to allow the prosecution of acts of genocide 
committed by an alleged offender who is a permanent resident of the 
United States, or who is brought into or found in the United States, 
even if the offense occurred outside the United States. I am proud to 
support H.R. 2489, and I ask Congressman Berman to add my name as a 
cosponsor.

                           GENOCIDE IN DARFUR

    Even as we speak at this hearing, a genocide is being committed in 
Sudan against the people of Darfur. More than 200,000 people have been 
killed by Sudanese government forces and armed militias since 2003, and 
another 200,000 people have died as a result of the deliberate 
destruction of homes, crops and water supplies and the resulting 
conditions of famine and disease. More than 2.5 million people have 
been displaced.
    According to a recent United Nations report, attacks against 
humanitarian aid workers have increased 150 percent in the past year. 
There are 13,000 humanitarian aid workers in Darfur, providing aid to 
more than 4 million people, and violence limits their ability to reach 
people in need. In June, approximately one in six humanitarian convoys 
leaving the capitals of Darfur provinces were ambushed by armed groups. 
About two-thirds of the population of Darfur is dependent upon these 
courageous aid workers and the aid they bring.
    Early in 2006, I visited the Darfur region with my good friend from 
California, Speaker Nancy Pelosi, and I was deeply disturbed by what I 
saw. As far as the eyes could see, there were crowds of displaced 
people who had been driven from their homes, living literally on the 
ground with nothing but little tarps to cover them. That was almost two 
years ago, and yet this genocide has been allowed to continue.

                           SUDAN LEGISLATION

    I introduced H.R. 3464, the Stop Importing Gum Arabic from the 
Genocidal Government of Sudan Act. This bill would tighten economic 
sanctions against Sudan by eliminating an exemption for gum arabic. Gum 
arabic is a substance derived from a plant with a variety of commercial 
uses. Gum arabic is plentiful in Sudan, and the United States imports 
an estimated 4,000 to 5,000 tons of Sudanese gum arabic every year, 
despite the government of Sudan's continuing genocide against the 
people of Darfur. I introduced this bill because I believe it is time 
for the United States to get serious about stopping this genocide. This 
bill is cosponsored by Congressman Howard Berman and Congressman Barney 
Frank.
    I also introduced H.Res. 628, a resolution to express the sense of 
Congress that the President should take action to boycott the Olympic 
Games in China, unless the Chinese government acknowledges and condemns 
the genocide taking place in Darfur and ends its military and economic 
support for the government of Sudan. China is the world's largest 
supplier of military arms and equipment to Sudan, and Sudan is using 
these supplies to commit genocide in Darfur. I introduced this 
resolution because I believe that the spirit of the Olympics is not 
compatible with any actions directly or indirectly supporting genocide. 
This resolution is cosponsored by another one of my colleagues from 
California, Congressman Dana Rohrabacher.

                               CONCLUSION

    Genocide is a heinous and despicable crime, which contradicts all 
of the values we in America hold dear. We must use every tool at our 
disposal to stop genocide from occurring and to hold those who commit 
genocide responsible for their actions. I look forward to the testimony 
of the witnesses and the suggestions they have for improving our 
ability to prevent and prosecute genocide wherever and whenever it 
occurs.

                                

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security

    Thank you, Mr. Chairman, for convening this important hearing on 
``Genocide and the Rule of Law.'' The hearing is particularly important 
since it will explore how Congress can develop and revise laws to 
respond more vigorously to prosecute genocide. In particular, the 
hearing will examine how the United States can more effectively 
implement its obligations as a party to the Genocide Convention.
    Mr. Chairman, its is very sad that the 20th century which excelled 
in technological innovation and great accomplishments in arts and 
letters will most likely be remembered for events which tragically 
symbolized the man's inhumanity to man. The genocide in Rwanda, the 
Armenian genocide, the Holocaust, the Khmer Rouge genocide to ,name a 
few ,showed us the excesses of totalitarian regimes and the 
monstrosities of efforts to annihilate entire ethnic, racial and 
religious groups.
    Sadly, the trend is continuing with the deplorable situation in 
Darfur, a region I had an opportunity to visit recently and witness 
first-hand the plight of the Darfurians who are victims of the 
systematic annihilation attempt supported by the Government of Sudan.
    Not since the Rwandan genocide of 1994 has the world seen such a 
systematic campaign of displacement, starvation, rape, mass murder, and 
terror as we are witnessing in Darfur for the last three years. At 
least 400,000 people have been killed; more than 2 million innocent 
civilians have been forced to flee their homes and now live in 
displaced-persons camps in Sudan or in refugee camps in neighboring 
Chad; and more than 3.5 million men, women, and children are completely 
reliant on international aid for survival.
    Unless the world stirs from its slumber and takes concerted and 
decisive action to relieve this suffering, the ongoing genocide in 
Darfur will stand as one of the blackest marks on humankind for 
centuries to come.
    Efforts to prevent genocide and prosecute its perpetrators are an 
important measure of the reaction of the civilized world to this 
barbaric phenomenon. In that sense, the 1948 Convention against 
Genocide lead the way to confront this phenomenon and create a legal 
basis to combat it.
    In 1948, the United Nations General Assembly adopted the 
``Convention on the Prevention and Punishment of the Crime of 
Genocide.'' \1\ As its title suggests, the treaty imposes two core 
obligations on participating states: first, state parties undertake to 
prevent genocide; and second, they commit to punish genocide as well as 
several related acts, such as attempting to commit genocide. In 1987, 
Congress enacted legislation to bring U.S. law into conformity with the 
Genocide Convention.
---------------------------------------------------------------------------
    \1\ Convention on the Prevention and Punishment of the Crime of 
Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, 280.
---------------------------------------------------------------------------
    The Genocide Convention contains a number of substantive 
provisions. The Genocide Convention establishes our core obligations in 
combating the genocide phenomenon--preventing and punishing Genocide.
    The document gives the UN a broad license to deal with genocide. In 
addition, individual states are expected to do all they can to prevent 
genocide. It also gives responsibility to state parties to prosecute 
the perpetrators of genocide.
    Mr. Chairman, I speak for many Americans when I say that the US 
should do it's very best to prosecute the crime of Genocide. The 
Proxmire Act is a valiant legislative effort to fulfill the spirit of 
the Genocide Convention.
    The ``Proxmire Act'' (The Genocide Convention Implementation Act of 
1987) is the key U.S. law implementing the Genocide Convention. When 
read together with other provisions of the federal criminal code 
concerning conspiracy and complicity, the Proxmire Act addresses the 
explicit obligation set forth in Article VI of the Genocide Convention 
concerning prosecution of genocide and related criminal acts in courts 
of the State where genocide occurs. In addition, the Proxmire Act makes 
it a federal crime for a U.S. national to commit genocide anywhere.
    The number of civil wars accompanied by ethnic cleansing and 
outright genocide which charter zed the end of the 20th century 
anywhere from Bosnia-Herzegovina to the civil wars in Somalia and 
Liberia produced a number of perpetrators of genocidal acts who ended 
up on American shores. This fact revealed a shortcoming in our current 
laws under which, the United States cannot indict someone for genocide 
committed outside the United States, even when the victim is an 
American citizen, unless the perpetrator is a U.S. national.
    In contrast, the laws on torture, material support for terrorism, 
terrorism financing, hostage taking, and many other federal crimes 
allow for extraterritorial jurisdiction for crimes committed outside 
the United States by non-U.S. nationals.
    Realizing this legal gap in our obligations to prosecute 
perpetrators of Genocide I commend my colleagues Mr. Berman and Mr. 
Pence for introducing the Genocide Accountability Act., H.R. 2489 in 
May of 2007.
    Mr. Chairman, this legislation would close a legal loophole that 
prevents the U.S. Justice Department from prosecuting people in our 
country who have committed genocide. The bill specifically amends Title 
18 to establish federal criminal jurisdiction over the crime of 
genocide wherever the crime is committed. This jurisdiction should be 
exercised when the alleged offender is present in the United States and 
he or she will not be vigorously and fairly prosecuted by another court 
with appropriate jurisdiction.\2\
---------------------------------------------------------------------------
    \2\ The loophole in genocide law has real-life consequences. The 
Justice Department has identified individuals who participated in the 
Rwandan and Bosnian genocides and who are living in the United States 
under false pretenses. Under current law, these individuals cannot be 
arrested or prosecuted, because they are not U.S. nationals and the 
genocides in which they were involved did not take place in the United 
States.
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    Many countries have adopted or enforced legislation establishing 
jurisdiction over certain international crimes, including genocide, 
wherever committed if the alleged perpetrator is in their territory and 
any additional requirements are satisfied. This will be a further step 
in the right direction so that no perpetrator of Genocide living on US 
soil can go unpunished and a good step toward fulfilling our duty to 
remove this deplorable phenomenon from the face of earth.
    Thank you, Mr. Chairman for convening this important hearing and I 
look forward to hearing from our distinguished witnesses. I yield back 
the balance of my time.

                                




                                




                                 
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