[Senate Hearing 110-46]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 110-46
 
                      GENOCIDE AND THE RULE OF LAW

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

                                HEARING

                               before the

                SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            FEBRUARY 5, 2007

                               __________

                           Serial No. J-110-9

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director
                                 ------                                

                Subcommittee on Human Rights and the Law

                 RICHARD J. DURBIN, Illinois, Chairman
EDWARD M. KENNEDY, Massachusetts     TOM COBURN, Oklahoma
JOSEPH R. BIDEN, Jr., Delaware       JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     SAM BROWNBACK, Kansas
                      Joseph Zogby, Chief Counsel
                 Mary Harned, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cardin, Benjamin L., a U.S. Senator from the State of Maryland, 
  prepared statement.............................................    70
Coburn, Hon. Tom, a U.S. Senator from the State of Kansas........     4
Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  prepared statement.............................................    82
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
    prepared statement...........................................    88
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   104
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   103

                               WITNESSES

Cheadle, Don, Actor and Activist, Los Angeles, California........    11
Dallaire, Lieutenant-General, Romeo A., Senator, Parliament of 
  Canada, Ottawa, Ontario........................................     8
Mandelker, Sigal P., Deputy Assistant Attorney General, Criminal 
  Division, Department of Justice, Washington, D.C...............     5
Orentlicher, Diane F., Professor of International Law, American 
  University, Washington, D.C....................................    16

                         QUESTIONS AND ANSWERS

Responses of Don Cheadle to questions submitted by Senator Coburn    36
Responses of Romeo A. Dallaire to questions submitted by Senators 
  Coburn and Cornyn..............................................    38
Responses of Sigal P. Mandelker to questions submitted by Senator 
  Durbin.........................................................    43
Responses of Diane F. Orentlicher to questions submitted by 
  Senators Coburn and Cornyn.....................................    50

                       SUBMISSIONS FOR THE RECORD

Alliance for Justice, Nan Aron, President, Washington, D.C., 
  letter.........................................................    55
American Progress Action Fund, John D. Podesta, President and 
  CEO, Mark D. Agrast, Senior Fellow, Washington, D.C., letter...    57
Amnesty International, New York, New York, statement.............    58
Armenian Assembly of America, Bryan Ardouny, Executive Director, 
  Washington, D.C., statement....................................    59
Armenian National Committee of America, Aram Hamparian, Executive 
  Director, Washington, D.C., letter and statement...............    65
Cheadle, Don, Actor and Activist, Los Angeles, California, 
  prepared statement.............................................    73
Dallaire, Lieutenant-General, Romeo A., Senator, Parliament of 
  Canada, Ottawa, Ontario, prepared statement....................    84
Freedom House, Jennifer Windsor, Executive Director, Washington, 
  D.C., letter...................................................    91
Genocide Intervention Network, Mark Hanis, Executive Director, 
  Washington, D.C., letter.......................................    92
Human Rights First, Elisa Massimino, Washington Director, 
  Washington, D.C., letter.......................................    94
Human Rights Watch, Jennifer Daskal, Advocacy Director, US 
  Program, and Tom Malinowski, Washington Advocacy Director, 
  Washington, D.C., letter.......................................    96
Hutson, John D., RADM JAGC USN (retired), Dean, Franklin Pierce 
  Law Center, Concord, New Hampshire, letter.....................    97
Jewish Community Relations Council, Alan Solow, Chair, and Jay 
  Tcath, Director, Chicago, Illinois, letter.....................    98
Jewish Council for Public Affairs, Steve Gutow, Executive 
  Director, Washington, D.C., letter.............................   101
Mandelker, Sigal P., Deputy Assistant Attorney General, Criminal 
  Division, Department of Justice, Washington, D.C., prepared 
  statement......................................................   106
Open Society Institute, Aryeh Neier, President, New York, New 
  York, letter...................................................   114
Orentlicher, Diane F., Professor of Law, American University, 
  Washington, D.C., prepared statement...........................   115
Save Darfur Coalition, David C. Rubenstein, Executive Director, 
  Washington, D.C., letter.......................................   126


                      GENOCIDE AND THE RULE OF LAW

                              ----------                              


                        MONDAY, FEBRUARY 5, 2007

                              United States Senate,
                  Subcommittee on Human Rights and the Law,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 3:02 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Richard J. 
Durbin, Chairman of the Subcommittee, presiding.
    Present: Senators Durbin, Cardin, Whitehouse, Cornyn, and 
Coburn.

  OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 
                   FROM THE STATE OF ILLINOIS

    Chairman Durbin. The Subcommittee on Human Rights and the 
Law will come to order. Welcome to our Subcommittee's first 
meeting. The topic today is genocide and the rule of law. This 
is the inaugural hearing of this newly created Subcommittee. We 
are honored to have a distinguished panel of witnesses for our 
first hearing. After a few remarks, I would like to recognize 
my Ranking Member, Senator Coburn of Oklahoma, for an opening 
statement. Then we will turn to the witnesses.
    A word about the new Subcommittee. First, my thanks to 
Senator Patrick Leahy, Chairman of the Senate Judiciary 
Committee, for establishing this Subcommittee and allowing me 
to serve as Chairman. Senator Leahy has a long record of 
championing human rights for many years, and this Subcommittee 
is further indication of his commitment.
    Without objection, I would like to enter into the record at 
this point a statement by Senator Leahy. Without objection, so 
ordered.
    This is the first time in the history of the Senate that 
there has been a Subcommittee focused on human rights. The 
timing is right. At this moment in history, it is vitally 
important to our national interest to promote greater respect 
for human rights around the world.
    When our leaders speak of our inherent desire for freedom 
and our communal need for democracy, they are acknowledging the 
fundamentals of human rights, and those who ignore and violate 
these fundamentals do more than challenge some idealistic goal. 
Repressive regimes that violate human rights create fertile 
breeding grounds for suffering, terrorism, war, and 
instability. In our time, the world is a much smaller place, 
and the social ills caused by human rights abuses know no 
borders. We will never be truly secure as long as fundamental 
human rights are not respected.
    Our own Declaration of Independence says, and I quote, ``We 
hold these Truths to be self-evident, that all Men are created 
equal, that they are endowed by their Creator with certain 
unalienable rights...'' Too many times in our history we have 
fallen short of this ideal, but this commitment to human rights 
was and is the promise of America.
    I hope this Subcommittee will give the Senate an 
opportunity to work together to maintain America's leadership 
in protecting and promoting fundamental human rights.
    America also stands for another revolutionary idea: the 
rule of law. As John Adams said, ``We are a government of laws, 
not of men.'' We should keep in mind that human rights are 
little more than empty promises if they are not enforceable in 
law. That is why this is the Human Rights and the Law 
Subcommittee and that is why we are part of the Judiciary 
Committee.
    When Chairman Leahy asked me to chair this Subcommittee, I 
knew that our first hearing had to be on the subject of 
genocide and the rule of law. Raphael Lemkin, a Holocaust 
survivor and the architect of the Genocide Convention, placed 
his faith in the ability of the law to prevent genocide. He 
implored the international community to adopt laws against 
genocide, saying, ``Only man has law...You must build the 
law.''
    To focus our discussion, I would like to ask those in the 
audience and my fellow members of the Subcommittee to allow a 
brief video on genocide that we created for this hearing. I 
will tell those in the audience in advance that there are some 
graphic scenes, but this is a graphic topic.
    [Videotape played:]
    [Senator Proxmire speaking: ``The supreme value that I'm 
sure Members of Congress and almost all Americans recognize is 
human life. Is there any greater crime than destroying a human 
life? There is. There's a more monstrous crime: the planned, 
premeditated destruction of millions who have done nothing 
wrong but belong to a particular religion or an ethnic group or 
a racial group.
    ``What am I talking about? I'm talking about genocide. I'm 
talking about the most monstrous crime in the history of 
humankind, when Hitler and the Nazis slaughtered 6 million 
Jews, destroyed European Jewry.
    ``This is our treaty. This country drafted the treaty. 
President Truman signed the treaty in 1948. Think of that--40 
years ago. Every major country in the world has ratified it and 
drafted the necessary implementing legislation to make it 
national law, except the United States of America. President 
Kennedy asked for it. President Johnson asked for it. President 
Nixon asked for it, President Carter, President Ford. And, of 
course, President Reagan called on the Senate to act, and 
President Reagan, to his credit, succeeded in persuading the 
Congress to ratify the treaty.'']
    Chairman Durbin. Thank you.
    The legal prohibition against genocide is obviously an 
unfulfilled promise. We see this most clearly today in Darfur 
in western Sudan. In this region of 6 million people, hundreds 
of thousands have been killed, and over 2 million have been 
driven from their homes. For them, the commitment of ``Never 
again'' rings hollow.
    We must ask ourselves why. Is this a failure of law or of 
will, or both? What are the legal obligations of states to 
prevent genocide before it has begun? Do debates about the 
legal definition of genocide serve as an excuse for governments 
not to act? What is our responsibility to protect victims of 
atrocities that do not meet the legal definition of genocide? 
And we must explore the legal options for preventing genocide 
and, in the worst-case scenario, stopping genocides like the 
one in Darfur.
    During today's hearing, we will explore using the law to 
impose criminal and civil sanctions on individuals who are 
guilty of genocide. We will discuss the status of the 
International Criminal Court's Darfur investigation and whether 
the Federal Government is doing everything it can to facilitate 
that investigation. We will also examine the possibility of 
civil and criminal liability under U.S. law for people who 
commit genocide anywhere in the world.
    Divestment is another legal tool that has been put to work. 
We used it effectively, I believe, in South Africa to help end 
apartheid. And today I would like to announce that I plan to 
introduce legislation to authorize State and local governments 
to divest from Sudan.
    Senator Brownback, my colleague on this Committee, as well 
as Senator Obama, my colleague in Illinois, and many members 
have played leading roles in this divestment movement, 
including Senator Cornyn and Senator Hutchison. I look forward 
to working with them.
    I just want to close by saying that a little over a year 
ago, Senator Sam Brownback and I visited Kigali in Rwanda. We 
stayed in the Hotel Mille Collines, better known by Americans 
as ``Hotel Rwanda.'' As I walked down the corridor to my room, 
I could not help but think of that movie, which Don Cheadle 
starred in, and the hundreds of frightened Rwandans who had 
huddled there during the genocide, fearing the worst.
    Early one morning, I walked down the hill to a Catholic 
Church, Saint Famille. I was jogging, so I was not really in 
the right clothing to go into a church. But I stuck my head in 
the door of this red brick church and looked, and it was very 
plain. And people had started gathering at about 6 o'clock.
    I went back up to the hotel and mentioned to one of the 
people at the Embassy that I had stopped at this church, Saint 
Famille. He said, ``Do you know the story of that church? '' 
And I said, ``No, I don't.'' He said, ``We believe 1,000 people 
were massacred in that church. They came there seeking 
sanctuary. They were betrayed and they were killed on the floor 
of that church.''
    It really brought home very quickly that what we saw in 
``Hotel Rwanda'' was not some abstract theory. It was the 
reality of genocide.
    The last word I want to say is about my predecessor in the 
Senate, who was quoted very briefly in the video presentation. 
Senator Paul Simon, along with Senator Jim Jeffords, in a 
bipartisan effort pleaded with the Clinton administration to do 
more about the genocide in Rwanda. President Clinton, as we 
saw, later said that his inaction was the worst foreign policy 
mistake of his 8 years.
    I salute the Bush administration for calling the situation 
in Darfur the genocide that it is. But now that we have 
acknowledged for more than 4 years that this horror is 
happening on our watch, we must summon the courage to act to 
stop this terrible genocide.
    Senator Coburn?

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF 
                            OKLAHOMA

    Senator Coburn. Thank you very much, Senator Durbin, for 
having this hearing. I am struck at what we face, and I recall 
being at the University of Oklahoma a little less than a year 
ago and college students asking, ``Why? Why? Why does it 
continue? '' and the very helpless feeling that we have and 
that it continues today. In spite of the fact that we desire it 
not to, in spite of the fact we work through the United 
Nations, in spite of the fact that the Government of Sudan 
rejects what we do through the United Nations, it continues 
today.
    I want to read a poem that is very well known to many who 
are associated with this movement, but I think it is an 
important part of the record because it displays with telling 
accuracy what genocide is all about.
    ``They fell that year/They vanished from the earth/Never 
knowing the cause/Or what laws they'd offended/The women fell 
as well/And the babies they tended/Left to die, left to cry/All 
condemned by their birth./They fell like rain/Across the 
thirsty land/In their hearts they were slain/In their God still 
believing/All their pity and pain/In that season of grieving/
All in vain, all in vain/Just for one helping hand./For no one 
heard their prayer/In a world bent on pleasure/From other 
people's cares/They simply closed their eyes/They craved a lot 
of sound/And jazz and ragtime measure/The trumpet screamed 'til 
dawn/To drown the children's cries/They fell like leaves/Its 
people, in its prime/Simple man, kindly man/And not one knew 
his crime/They became in an hour/Like a small desert flower/
Soon covered by the silent wind and sands of time./They fell 
that year before a cruel foe/They had little to give but their 
lives and their passion/And their longing to live in their way, 
in their fashion/So their harvest could thrive and their 
children could grow./They fell like flies/Their eyes still full 
of sun/Like a dove in its flight/In the path of a rifle/That 
falls down where it might/As if death were a trifle/And to 
bring to an end/A life barely begun./And I am of that race/Who 
died in unknown places/Who perished in their pride/Whose blood 
rivers ran/In agony and flight/With courage on their faces/They 
fell into the night/That waits for every man./They fell like 
tears/And never knew what for/In that summer of strife/Of 
massacre and war/Their only crime was life/Their only guilt was 
being/The children of Armenia/Nothing less, nothing more.''
    That applies to every situation that we face, and I am one 
of the harsh critics of the United Nations in this Senate 
because of the tremendous amount of money that is wasted, the 
inactions that are not taken--the absence of action that is 
taken, and the thought that we as a Nation give $5.7 billion a 
year to the United Nations and $1 billion of it is wasted a 
year just in our peacekeeping, sometimes for rape, sometimes 
for other things.
    It is shame on us, the U.S. Congress, for not holding the 
United Nations accountable, for not moving the action with a 
force. We know what is going on. It is left to us to do 
something about it.
    Thank you, Mr. Chairman.
    Chairman Durbin. Thank you, Senator Coburn.
    We are going to turn to our witnesses for their opening 
statements. Normally, we limit opening statements to 5 minutes, 
but today is a special case, and we have limited the number of 
witnesses accordingly. This is an issue of great importance, 
and two of our witnesses have made great personal sacrifices to 
be here with us. So we are going to give each witness 10 
minutes for their oral testimony. Their complete written 
statements will be made part of the record.
    I would like to ask the witnesses to please stand and raise 
your right hands to be sworn. Do you swear that the testimony 
you are about to give before the Committee will be the truth, 
the whole truth, and nothing but the truth, so help you God?
    Ms. Mandelker. I do.
    Mr. Dallaire. I do.
    Mr. Cheadle. I do.
    Ms. Orentlicher. I do.
    Chairman Durbin. Thank you. Let the record show that the 
witnesses have responded in the affirmative.
    Our first witness, Sigal Mandelker, is here to represent 
the Justice Department. Thank you. I know this was short 
notice, and we appreciate very much that you came here today.
    Since July 2006, she has served as Deputy Assistant 
Attorney General in the Criminal Division. She oversees the 
Office of Special Investigations and the Domestic Security 
Section, the two Justice Department offices with primary 
responsibility for prosecuting human rights violators.
    Since 2002, Ms. Mandelker has held a number of senior 
positions in the administration, including counselor to 
Department of Homeland Security Secretary Michael Chertoff, 
counsel to the Deputy Attorney General, and Special Assistant 
to then Assistant Attorney General of the Criminal Division 
Michael Chertoff. She clerked for Supreme Court Justice 
Clarence Thomas and Judge Edith Jones. She received her 
bachelor's degree from the University of Michigan and her law 
degree from the University of Pennsylvania.
    I also want to recognize that she has a very deep, personal 
connection to the subject of today's hearing because both of 
her parents were Holocaust survivors.
    Thank you so much for being here today, and the floor is 
yours.

  STATEMENT OF SIGAL P. MANDELKER, DEPUTY ASSISTANT ATTORNEY 
GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, 
                              D.C.

    Ms. Mandelker. Thank you, Chairman Durbin, Ranking Member 
Coburn, and distinguished members of the Subcommittee. Thank 
you for holding this important hearing today, and I am honored 
to appear before you on your inaugural hearing. As the Deputy 
Assistant Attorney General in the Criminal Division of the 
Justice Department who oversees the Office of Special 
Investigations and the Domestic Security Section, I am pleased 
to discuss the Department of Justice's ongoing efforts against 
the perpetrators of genocide and other human rights violators.
    Bringing these perpetrators to justice is a mission of the 
very highest importance. As Ambassador Alejandro Wolff, the 
Acting U.S. Permanent Representative to the United Nations, 
said just 11 days ago when introducing a landmark U.S.-drafted 
General Assembly resolution to condemn Holocaust denial, ``all 
people and all states have a vital stake in a world free of 
genocide.''
    On a personal note, I am the granddaughter of three 
grandparents who did not survive Hitler's horrific genocide of 
6 million Jews. My parents' earliest memories in reality were 
living in ghettos, hiding underground in the forest, hiding in 
haystacks, and being hidden by individuals who risked their own 
lives in order to save the lives of my parents. My mother was 
orphaned by the Holocaust, and my father lost his mother at the 
age of 5. This is an issue about which I feel deeply, both 
personally and professionally.
    The Department of Justice continues to utilize all tools 
available against these human rights violators, including 
prosecution, extradition and removal, and by providing 
assistance to countries and tribunals who prosecute these 
horrific crimes.
    First, the Department of Justice makes use of criminal and 
civil charges to ensure that the perpetrators of genocide or 
other egregious human rights violators do not find a safe haven 
in the United States. Indeed, for the past 27 years, the Office 
of Special Investigations has identified, investigated, and 
brought civil denaturalization and removal actions against 
World War II Nazi perpetrators. OSI has successfully pursued 
over 100 of these cases. In fact, just this last month, a U.S. 
immigration judge ordered the removal of Josias Kumpf, of 
Racine, Wisconsin, who, by his own admission, during a mass 
killing operation in occupied Poland in 1943 stood guard at a 
pit containing dead Jewish civilians and others he described as 
``halfway alive'' and ``still convuls[ing],'' with orders to 
shoot to kill anyone who attempted to escape. OSI also 
continues to work with prosecutors overseas to facilitate the 
criminal prosecution of Nazi criminals.
    In addition, U.S. Attorney's Offices around the country, 
OSI, and the Domestic Security Section criminally prosecute 
individuals who allegedly participated in human rights 
violations, including genocide, 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 crime for 
concealing their prior service in the Bosnian Serb military. 
Two of those who have since been removed by ICE to Bosnia were 
indicted this past December by Bosnian authorities on charges 
of murder and other serious offenses.
    Third, we extradite individuals wanted for human rights 
violations. For example, in March of 2000, following the 
conclusion of hard-fought extradition litigation, the United 
States turned over Elizaphan Ntakirutimana to the International 
Criminal Tribunal for Rwanda. This individual, a pastor at the 
time of the Rwandan genocide, was accused of devising and 
executing a lethal scheme in which Tutsi civilians were 
encouraged to seek refuge in a local religious complex, much 
like the complex that you mentioned, 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. Indeed, a Department of Justice 
prosecutor also 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 Tribunal for 
Rwanda and the Former Yugoslavia. Indeed, the United States has 
been the largest contributor to both of these tribunals.
    For example, the Department has loaned a number of 
experiences law enforcement professionals to the ICTY, 
including the current head of the Domestic Security Section. We 
have also operated 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 in these enormously important cases, and I welcome 
any questions you may have.
    [The prepared statement of Ms. Mandelker appears as a 
submission for the record.]
    Chairman Durbin. Thank you so much for being with us.
    Our next witness is a hero. Canadian Senator Romeo Dallaire 
tried to stop a genocide in Rwanda, and he saved countless 
lives. That he did not succeed further in this effort was not 
his fault. It was ours.
    In 1994, 5 weeks after the killings began in Rwanda, our 
colleagues Paul Simon and Jim Jeffords called General Dallaire, 
head of the UN Peacekeeping Force in the Rwandan capital of 
Kigali, and asked what he needed. A desperate Dallaire told 
them that if he had 5,000 soldiers, he could end the massacre. 
The Senators hand-delivered a note to the White House 
requesting that the United States approach the Security Council 
to authorize deployment of the troops. The Senators received no 
reply. The killings continued.
    If more people had listened to General Dallaire, maybe 
things could have ended differently in Rwanda. I hope and pray 
that more will listen to him now--now that another genocide is 
underway.
    Senator Dallaire had a distinguished career in the Canadian 
military. I asked him earlier whether I should call him 
``General'' or ``Senator,'' and we decided ``Senator'' would be 
appropriate in this setting. He achieved the rank of 
Lieutenant-General and the post of Assistant Deputy Minister of 
National Defense. He has published a book about his Rwandan 
experience, ``Shake Hands with the Devil'', which has received 
numerous awards. Among many positions, he is Special Advisor on 
War-Affected Children to the Canadian International Development 
Agency, and a member of the UN Advisory Committee on Genocide 
Prevention. He has received honorary doctorates from numerous 
Canadian and American universities.
    It is this Subcommittee's distinct honor to have you here 
today, Senator Dallaire. Please proceed with your opening 
statement.

  STATEMENT OF LIEUTENANT-GENERAL ROMEO A. DALLAIRE, SENATOR, 
             PARLIAMENT OF CANADA, OTTAWA, ONTARIO

    Senator Dallaire. Thank you very much, Mr. Chairman and 
Senators. First, a word, if I may, of congratulations on this 
marvelous initiative and congratulations from the Canadian 
Senate Committee on Human Rights. We applaud your work and we 
wish you well in your future deliberations, particularly in 
starting with the subject of genocide.
    I only have a short period of time, and so I am going to do 
what my Marine Corps friends taught me in Quantico, just south 
of here: I am going to power talk my way through this and 
hopefully get enough information across. And to do so, I would 
like to start with bit of history--a bit farther back than CNN 
history, which sometimes is, one wonders, last week--but back 
to 1994 and bring us into today, into Darfur and into the 
future.
    I rapidly wish to indicate that in 1994, at one particular 
time, a small group of Rwandan extremists--and extremism is the 
instrument of this era--people who do not play by any of the 
rules--sat around a table and tried to figure out how they 
would maintain power. How they would maintain power. And the 
solution they came up with was we will simply exterminate 
1,200,000 people of the other ethnicity--Tutsis. And even 
though we warned and attempted to get the international 
community involved, and even mandates changed, ultimately they 
succeeded in killing in 100 days 700,000 of that 1.2 million, 
plus about 100,000 moderate Hutus.
    When they did that, we watched. Now, one readily would come 
to the conclusion that the international community either did 
not want to see or did not have the instruments to solve this. 
And it is interesting that since then we have rapidly turned 
towards the UN being present there, and being present because 
the international community wanted it there through the 
Security Council, that they not having taken action and me in 
the field not having taken action, that we are held responsible 
for that genocide. And I do not negate that my mission failed 
and that we did not help the Rwandans achieve peace and, on the 
contrary, ended up in a civil war and genocide.
    However, I do not believe that the UN was the ultimate 
culprit or instrument by which we did not prevent it. I believe 
it is the sovereign states that make up the UN that prevented 
the UN from doing it because they simply did not give it the 
tools, did not give it the political will, and ultimately did 
not give it the resources, be it military or otherwise--to 
prevent it, let alone stop it.
    And so this brings us to genocide, and genocide seems to 
have over the years turned into a very judicial sort of 
instrument, a sort of after-the-fact tool, and not necessarily 
an instrument of anticipation nor of proactiveness to prevent 
genocide. And when we see the work of the International 
Criminal Court and the Tribunals, at which I have been a 
witness three times, and we see them trying to attrit impunity 
around the world, one wonders how many Tribunals or how many 
genocides we will need to achieve that aim of eliminating 
impunity. Because if we count on the term ``genocide'' to be 
the clarion call for us to act, let alone prevent but certainly 
to stop the crisis, we have been woefully ineffective. And, in 
fact, we have avoided the clarion call by trying to debate it, 
discuss it, and use all kinds of instruments, including 
sovereignty, as an excuse for not intervening when it was 
blatantly obvious that we had, in fact, a genocide--blatantly 
against the ultimate call for action.
    Now, President Bush in calling the Darfur operation and 
situation a genocide, that was an enormous initiative. And, in 
fact, one can see him avoiding the very difficult situation 
that President Clinton found himself in, in 1994. However, 
after calling it a genocide, what has happened? What has this 
great power done, in fact, in stopping it, let alone trying to 
prevent its escalation? How many other countries has it been 
able to bring online to, in fact, stop this genocide? And how 
is it possible that, in fact, now we have a government in Sudan 
that, having refused to allow the UN to go in, having refused 
even the reinforcement of the African Union, that it is 
permitted to continue to function and to conduct its business 
internationally, economically, and so on? When it is now fully 
recognized by these actions as a genocidal government, refusing 
to allow the UN to conduct operations to protect massive 
numbers of its population against human rights abuses, or even 
soliciting aid or assistance from the UN to assist it in 
stopping the massive abuse of human rights of its own people? 
Not permitting that to happen has blatantly established the 
government of Sudan as a government that has set itself against 
attempts to stop abuse of human rights of its people and, as 
such, on balance has met all the criteria of genocidal 
government.
    So what is this massive abuse of human rights and the 
stopping thereof? In September of 2005, the General Assembly 
agreed to one of the few reforms that Kofi Annan was able to 
bring in at that time, one called ``Responsibility to 
Protect''--exactly what we have just described. Responsibility 
to Protect is an instrument by which sovereignty is no more an 
absolute, by which, when there is massive abuse of human rights 
in a country or when a government is not able to stop it, we 
have not the right, but we the international community have, 
the responsibility to go in and protect those people.
    And so what teeth does this new doctrine have in the UN? 
What teeth does it have in the international community to stop 
a genocide? Economic? Military? Legal? Yes, they are all 
available for us to entertain. And what about preventing it? 
What sort of proactive instruments can we see that we could 
use, the international community through the UN, or even 
separately from that, to actually stop genocide?
    The mere fact that human beings can sit around a table and 
conceive an idea of eliminating, eradicating, destroying 
millions of people to achieve their aim...How is it possible 
that that can still be a functioning sort of concept and that 
we let it happen--and, in fact, watch it happen on the various 
media and watch it happen not over a day or two, but over weeks 
and months?
    On the 17th of May 1994, the Security Council said that 
what was going on in Rwanda was a genocide, and by then nearly 
300,000 had been slaughtered and over a million internally 
displaced and refugeed. At that point my plan called for the 
deployment of about 5,000 troops. I had just finished 
commanding a brigade group of 5,200 troops. I knew exactly what 
they could do and what we had to achieve in stopping the 
slaughter--not stopping the war, but stopping the slaughter 
behind the lines. And that would be the reason to stop the war.
    I called for the deployment of those 5,000 troops within 
about 10 days in order to stop the expansion of that throughout 
the rest of the country. Only leading powers and middle powers, 
like Canada, like Germany, like Japan, big powers like the 
United States and France and the U.K. and Russia and China, 
have the capability to deploy those qualified troops in the 
time frame necessary to achieve that aim. Two months later, the 
first troops arrived, and they were from Ethiopia, and they had 
no capabilities whatsoever in stopping it. And by then the 
genocide was over, and another 500,000 had been slaughtered and 
3 million internally displaced. We saw it. We called it that. 
We watched it. And we did nothing. We watched O.J. Simpson's 
bloody glove and Tonya Harding knee-capping, but we did not 
want to act on the genocide that was in front of us.
    And so, ladies and gentlemen, what of the future? There are 
untapped sources of preventing and stopping genocide. I believe 
we can use not only Chapter VII of the UN in which we would 
deploy with overwhelming force to prevent or stop genocide and 
its perpetrators but we could also demonstrate our resolve by 
mere planning. In the case of Darfur, contingency planning for 
going in could, in fact, influence the situation. We could go 
in with Chapter VIII, which means we reinforce a regional 
power, like the African Union, and its attempts to stop the 
atrocities. We could even go back to the General Assembly with 
``Uniting for Peace,'' an instrument that has been used in the 
past, where we go right back to every individual country and 
say, ``You have a role in the decision to stop these 
operations.''
    We can, in fact, move in and start using other players who 
have not come to the fore with the strength they have to help 
the big powers in preventing, let alone stopping, these 
catastrophes, middle powers like Germany and Japan, Italy, 
Canada, regional middle powers that can and have resources that 
have not been called upon enough to support the UN and the 
international community.
    I think, ladies and gentlemen, that we also have economic 
instruments, like, divestment. It is inconceivable, as an 
example, that we will intervene militarily, possibly to save 
human lives, if we can apply R2P, but we will not intervene in 
the economic matters of a country. How is it possible that 
Sudan still invest massive amounts of money in its military and 
next to nothing in its economic and social structures, which is 
the source of this genocide, and that we let it happen? We have 
not stopped their bank accounts. We might send in troops, but 
we will not stop their bank accounts. There is no logic in 
that. Cash seems to be more powerful than might and human 
beings.
    Ultimately, ladies and gentlemen, we are now faced with a 
genocide. We are in the middle of it. It needs either massive 
deployments of troops, or it needs an international diplomatic 
effort led by powerful nations and middle powers to stop it. 
And it is high time that we call a spade and a spade. And China 
and Russia cannot play on both sides of the game of human 
rights. They are turning into, certainly, in my opinion, 
scavengers of Africa as they attempt to maneuver their resource 
base at the expense of human rights and massive abuses of human 
rights on that continent.
    Thank you very much.
    [The prepared statement of Mr. Dallaire appears as a 
submission for the record.]
    Chairman Durbin. Thank you, Senator Dallaire.
    Our next witness is more than a critically acclaimed film, 
television, and stage star. Don Cheadle has starred in many 
movies including``Crash,'' ``Traffic,'' ``Ocean's Eleven.'' He 
has received many awards, was nominated for an Academy Award as 
Best Actor for his performance in ``Hotel Rwanda,'' and earned 
Golden Globe, Critics' Choice, NAACP Image, and Screen Actors 
Guild Award nominations for that same role. Many Americans 
first learned about the genocide in Rwanda from ``Hotel 
Rwanda,'' in which Mr. Cheadle portrayed real-life Rwandan hero 
Paul Rusesabagina.
    Mr. Cheadle has been more than just a competent and 
skillful actor in bringing that role to the attention of people 
around the world. He has been a leader in the fight against 
genocide in Darfur, giving speeches, writing articles, 
traveling to refugee camps in Sudan and Chad to raise 
awareness. He has been active in the campaign that resulted in 
California passing a divestment law. With human rights activist 
John Prendergast, Mr. Cheadle is co-author of a new book, ``Not 
on Our Watch,'' which is due out later this year, a citizen's 
guide for responding to the genocide in Darfur. He is also 
producing a documentary about the Sudan. A native of Kansas 
City, he received his bachelor's degree in Fine Arts from Cal 
Arts in Valencia, California.
    Mr. Cheadle, thanks for being with us today. We look 
forward to your testimony.

         STATEMENT OF DON CHEADLE, ACTOR AND ACTIVIST, 
                    LOS ANGELES, CALIFORNIA

    Mr. Cheadle. Thank you. Good afternoon, and thank you for 
inviting me here today. Allow me to begin by saying that I am 
not only honored but somewhat awestruck to be appearing before 
you today to testify about the ongoing crisis in Darfur. I was 
invited here this afternoon by Senator Durbin to recount for 
you my personal experiences in Sudan and Chad so as to put a 
``human face'' on what has been transpiring in that region for 
the past 3 to 4 years. There is more I could say in the way of 
a preamble, giving you my background and how I came to be 
involved with Darfur; but as time where this matter is 
concerned is rapidly running out for most and has already 
expired for far too many, I will get right to it.
    After accepting this invitation, looking at the task before 
me, I started scrolling through my mental Rolodex to recall 
stories of Darfur, finding each one more tragic and gruesome 
than the last, yet trying to select the one that was the most 
shocking, the saddest, rife with the kind of terrifying imagery 
that would galvanize the room, causing everyone here to knit 
their brows and wring their hands and shake their heads. But 
then two things occurred to me: one, all of the stories fit 
that description; and, two, all of us already know this.
    Even if your knowledge of the situation in Darfur is only 
anecdotal, given your familiarity with similar tragedies which 
have unfolded in Armenia, Cambodia, Kosovo, Rwanda, you know 
the stories all have an eerily familiar ring. Hundreds, 
thousands, hundreds of thousands, singled out for their 
ethnicity or their religious or political affiliations, are 
systematically targeted for extermination.
    Instead of the Interahamwe in Rwanda, it is the marauding 
Janjaweed in Darfur who prey on unarmed civilians. The 
government in this case uses Antonov bombers for the first wave 
of attacks, followed by foot soldiers sweeping through for the 
second wave, then finally the marauders ride in on camelback 
and horseback to loot, burn, and mop up the stragglers. 
Invariably, there are numerous accounts of unspeakable 
brutality to the victims prior to their deaths, with the 
survivors more often than not being made to witness these acts, 
as well as, if they are female, being gang raped, another 
common tactic of the perpetrators--leaving the victims 
terrified, demoralized, and ashamed. And where Darfur is 
concerned, if you are a woman living in the camps, you have the 
added horror of potentially being raped again when you leave 
the compound seeking much needed firewood for cooking to 
sustain your family's meager existence, or when the camps are 
raided, as is happening more often now.
    The sickness and depression in the camps is palpable, as 
more refugees roll in daily, bringing with them what little 
they can carry, what family managed to survive, and a spirit 
bruised, battered, and broken. Now, I could plug in the names 
Fatima or Hawa or Adom to personalize these events, but every 
story told to me in the camps followed along similar lines, the 
only difference being the individual recounting it at the time. 
And every day since, up to and including this one, these 
stories continue to churn out of Darfur's human grinder at a 
rapid pace, with no end in sight.
    And there you have it: a ``human face,'' an accounting. And 
what of it?
    In the 100 days of Rwanda's ethnic cleansing, with nearly 1 
million souls brutally murdered, the most efficient 
extermination to date, most claimed to have known nothing about 
it, even years after its occurrence--a claim easy to believe 
given the dearth of news coverage those tragic events received. 
The news coming out of Africa in 1994 seemed to be all about 
Nelson Mandela's leadership and the end of apartheid. In fact, 
many of the South African actors I worked with during the 
filming of ``Hotel Rwanda'' admitted that they had no idea 
genocide was taking place, figuratively just ``up the road.'' 
And surely it was not until the film's release that most people 
in this country had even heard of the place. Unless you were 
going on vacation to see the mountain gorillas, Rwanda was not 
exactly considered the greatest of getaways, no public opinion 
intended. But Rwanda differs greatly from Darfur in many ways. 
Perhaps the one most worth noting for our purposes is that this 
conflict in western Sudan has far exceeded 100 days in length. 
Darfur has been on a slow boil for 4 years now. Four years. And 
over those 4 years, network news has reported about the crisis, 
articles have been written, rallies protests, and marches 
organized, concerts dedicated, benefits held, divestment bills 
signed, lectures made. Our President has labeled the crisis a 
``genocide.'' Yet here we are, 4 years in and counting. The 
question is: What will be done about it?
    Now, to be clear, I ask what will be done--not what can be 
done, for that question has been asked ad nauseam and contains 
within it connotations of powerlessness and surrender. What 
will be done is a very different question. Rather than 
succumbing to the monster of despair, ``What will be done? '' 
presupposes that there are indeed answers, solutions, actions 
to be taken that yet remain dormant. This is the appropriate 
question for Darfur and for the Committee members convened here 
today.
    Over the last year, I have heard a great many answers to 
these questions offered and have been privileged to participate 
in several efforts toward gaining peace in Darfur. I traveled 
to the region with a congressional delegation followed by 
``Nightline's'' cameras to chronicle the journey and broadcast 
the stories to a wide audience, in an effort to raise awareness 
about the plight of the Darfurians. I was enlisted in the ranks 
of UCLA students to push their college and the entire UC 
Regents to divest their portfolios' funds from businesses 
working in the Sudan, a policy that was later adopted by the 
entire State of California and signed into law by Governor 
Schwarzenegger last year. Similar legislation is now pending in 
many States across the U.S., and in a personal gesture of 
solidarity, Chairman Durbin and Senator Brownback have likewise 
divested their family holdings from companies profiting in 
Darfur--a very important action that I hope everyone will 
follow.
    In December, I was fortunate enough to travel with a small 
delegation to China and Egypt--both very important countries to 
Sudan--in an attempt to persuade their leaders to exert their 
considerable influence in the region, publicly condemning the 
continuing bloodshed while strengthening their back-door 
diplomacy.
    In May, there will be a book on the stands I co- authored 
with the International Crisis Group's John Prendergast in an 
attempt to demystify the conflict and give insight into not 
only our activist roots and personal journeys, but also 
hopefully to provide a sort of primer for those who wish to 
become more actively involved in seeking solutions to this.
    Valiant efforts? Perhaps. Effective? The jury is still out. 
Enough? Not even close. Three to five hundred thousand dead and 
dying, plus 2.5 million displaced souls equals a massive 
humanitarian crisis deserving of massive humanitarian 
attention. There is a small army of activists collecting, armed 
with unbridled enthusiasm and prepared to throw themselves 
headlong into the fight. But our well- intentioned efforts will 
wither on the vine if we are not guided and supported by the 
likes of you potential architects of change, bringing all of 
your collective pressures to bear on the powers that be. There 
are many actionable tactics that remain untried in this current 
iteration of violence that have been proven to be highly 
effective in the past, and we need to implement them now.
    We need multiple players engaged in consistent and 
continual negotiations with the leaders in Khartoum as well as 
the rebel factions to get them back to the table to broker an 
agreement that is durable. Only with a committed team of 
diplomats working tirelessly to understand each party's demands 
will we be able to see a shift toward a solution. And to that 
end, the President's Special Envoy to Sudan, Andrew Natsios, 
along with Salim Ahmed Salim of the AU and the UN's Jan 
Eliasson must be fully supported in their work, financially as 
well, and we should take the lead on that.
    We need high-ranking members in this administration to 
weigh in heavily in this process so as to be taken seriously by 
the GOS to achieve a favorable outcome.
    We need to support the ICC in their efforts to prosecute 
the perpetrators of these crimes against humanity by sharing 
information and declassified intelligence vital to their 
investigations so that when these charges are made, they stick. 
In the 4 years that this conflict has been raging out of 
control, not a single member of the Khartoum government has 
been punished. The UN Security Council, the EU, and the current 
administration have threatened to punish those who commit these 
atrocities, but have as yet to follow through on these threats.
    The latest incident was the U.S. threat to move to an 
unspecified ``Plan B'' if the Khartoum regime would not accept 
an internationally agreed upon UN role in the peacekeeping 
force. However, President Bashir and some of the most 
influential members of his regime have reiterated in no 
uncertain terms that UN troops are not welcome in Darfur. And 
what has happened as a result? Nothing. There was no visible 
reaction from Washington as the January deadline came and went.
    This only emboldens Khartoum to push forward with its 
military objectives. We, of course, should be wary of moving 
troops, however hybrid, into a sovereign nation without their 
consent, but when does a so-called sovereign nation forfeit its 
sovereignty? Does killing your own citizenry en masse vitiate 
that position of sovereignty, or is there something even more 
egregious required? And what could that be? Do the small 
tributaries of information trickled to us by the GOS about 
terrorists trump the taking of innocent men, women, and 
children's lives? Should these morsels give a nation the right 
to engage in inhumanity?
    If not, we need to outline specific punitive measures--
travel bans, asset freezes, indictments--punishments that can 
be negotiated down or even taken off the table entirely if the 
killing ends. But unless the Khartoum regime believes there are 
real consequences to these actions, the status quo will be 
maintained and countless more will suffer and die.
    In the 1990's, Sudan expelled Osama bin Laden from the 
country and dismantled his training camps after considerable 
pressure from the West, most significantly from the U.S. 
Similar pressure could again be exerted to bring an end to this 
current crisis.
    We need to support the current efforts by China to keep the 
pressure on Sudan, as clearly they are a major player there. 
China's hosting of the Olympic Games in 2008 will cast them in 
a very bright light indeed. We need to capitalize on this 
opportunity to leverage China's desire to be recognized as 
having changed their questionable ways with regards to human 
rights issues and their wish to be deserving of the slogan of 
unity they are promoting for the Games of ``One world, one 
dream.'' As long as they are in essence underwriting the 
genocide by providing the GOS with the very arms they are 
turning against their own citizens, China's leadership may be 
more deserving of the slogan ``One, world, one nightmare''--an 
association they should most certainly wish to avoid. We should 
reach for purchase there. I hope that Mr. Natsios' recent visit 
to Beijing, followed by President Hu's to the Sudan, may bear 
fruit but these should by no means be the only attempts. I am 
aware that there are important leaders in our country and 
others who have been involved in tricky diplomacy as well, 
albeit in a quiet way. Maybe it is time for these men and women 
to come to the fore and take advantage of the support of many 
ordinary citizens around the globe who wish to see these 
horrors in Darfur come to an end.
    Any of these tactics should be deployed immediately if we 
are to see real change in Darfur.
    We need to provide vital equipment and training necessary 
for the peacekeeping force in Darfur, not least of which should 
be to bolster communications capabilities for the AU. Push the 
UN to adopt a more forceful mandate and rules of engagement so 
that the peacekeeping force has the authority to do more than 
simply report on the atrocities they are witnessing, and they 
can provide real protection.
    We can fund troops and humanitarian workers from other 
willing Muslim countries. South Africa, the Middle East, South 
Asia can all play significant roles here. Egypt, similarly, has 
expressed a desire to be a part of this, and we should 
capitalize on that.
    But if, after all of these things, after all the committee 
meetings and the brainstorming sessions and the discussions and 
plans about how and when to act, we still find ourselves 
unwilling to embark on these solutions, then we must cease and 
desist with all the tough talk. Please, no more mention of no-
fly zones and possible NATO intervention forces. Let's refrain 
from using the word ``genocide'' that demands our Government to 
respond as put forth by the United Nations Convention on the 
Prevention and Punishment of the Crime of Genocide, an 
agreement of which we are a signatory. Please let's forego the 
lamenting of the lost souls in this latest conflict and just 
write them off. Let's by all means please banish forever from 
our lexicon the phrase ``Never again.'' This empty rhetoric is 
an insult to those in jeopardy, and it puts the world on notice 
that where mass atrocities are concerned, we are all bark and 
no bite.
    But perhaps we should look at this a different way. Maybe 
what is required for our more strenuous involvement is for the 
folks in Darfur, in the Sudan, to step it up. Maybe 500,000 
dead is simply not enough to warrant action. Maybe a million is 
more like the target number. I am serious about this. That word 
does feature very significantly in our collective 
consciousness. Perhaps when we say ``one million Darfurians 
dead'' an alarm will go off and the public outcry will be so 
deafening that we will be forced to take action. At the rate 
things are moving, it will only take 4 more years to reach this 
threshold--2 years into the term of our next President. And 
will this crisis be but one of many items on his or her ``to 
do'' list? Or will there have been significant action such as 
to have made this issue one of careful maintenance rather than 
abject consternation? We obviously do not have the answer to 
that, but in this Committee's inaugural year, I can think of no 
better issue to wrestle with as concerned citizens everywhere 
stand by to see who will get the ten count--us or genocide.
    So I ask again: What will we do?
    [The prepared statement of Mr. Cheadle appears as a 
submission for the record.]
    Chairman Durbin. Thank you, Mr. Cheadle.
    Our final witness today is Diane Orentlicher, Professor of 
law at Washington College of Law, American University. She is 
co-director of the law school's Center for Human Rights and 
Humanitarian Law, and the founding director of its War Crimes 
Research Office, which she directed from 1995 to 2004. She was 
described by the Washington Diplomat as ``one of the world's 
leading authorities on...war crimes tribunals.'' Professor 
Orentlicher has published and lectured extensively on legal 
issues relating to genocide, crimes against humanity, war 
crimes, and international criminal tribunals. She received her 
B.A. from Yale, and her J.D. from Columbia Law School, where 
she was an editor of the Columbia Law Review.
    Professor Orentlicher, thank you for joining us today, and 
please proceed with your testimony.

 STATEMENT OF DIANE F. ORENTLICHER, PROFESSOR OF INTERNATIONAL 
           LAW, AMERICAN UNIVERSITY, WASHINGTON, D.C.

    Ms. Orentlicher. Mr. Chairman, Ranking Member Coburn, and 
distinguished members of this Subcommittee, with other 
witnesses I want to thank you for the opportunity to appear at 
this historic session, the first hearing of a Senate body 
established to consider how our law can best advance the 
deepest interests of humanity. With its special focus on 
genocide and the rule of law, this hearing could not be more 
timely, coming at a time when our legal duty to stop atrocious 
crimes is urgently relevant in Darfur.
    I am fortunate to have as a foundation for my own remarks 
the eloquent and powerful testimony of the two witnesses 
immediately preceding me. By focusing on effective strategies 
for ending atrocious crimes still underway in Darfur, they have 
evoked the central point of the 1948 Genocide Convention: When 
states confront the threat or reality of genocide, they must 
mobilize to prevent it or to halt its deadly march.
    My own remarks will place these witnesses' recommendations 
in a broader legal setting. After briefly recalling the core 
obligations that our country assumed when it became a party to 
the Genocide Convention, I will address the question of how 
well U.S. law fulfills our legal commitments under that treaty.
    First, let me say that I cannot help thinking that Raphael 
Lemkin, the Polish scholar who campaigned relentlessly for a 
treaty on genocide, would have been deeply gratified by your 
decision to devote this Subcommittee's first hearing to 
genocide and the rule of law. As Senator Durbin recalled in his 
opening remarks, Lemkin believed it was essential to confront 
genocide through law--not just a moral code of conscience, 
although Lemkin was a man of surpassing conscience, but through 
an enforceable law of humanity. No matter how many times 
history gave Lemkin reasons to lose faith in humanity, he 
passionately believed in the power of law to compel us to do 
better the next time we learned that the very survival of a 
human group was in grave peril.
    In 1948, the UN General Assembly adopted the treaty for 
which Lemkin had campaigned so tirelessly, the Convention on 
the Prevention and Punishment of the Crime of Genocide. Its 
core duties are twofold: The parties ``confirm that genocide is 
a crime under international law'' which they undertake both to 
prevent and to punish. The two duties are, of course, related. 
By ensuring that those who breach the basic code of humanity 
are brought to justice, the treaty's drafters sought to alter 
the depraved calculus of ethnic annihilation. For those who 
commit genocide count on our acquiescence, committing their 
crimes beyond any thought of shame or account.
    In my remarks this afternoon, I will speak very briefly of 
the duty to prevent genocide, which has already been the focus, 
quite rightly, of other witnesses' testimony, and I will say a 
bit more about the duty to punish genocide.
    First of all, the duty to prevent genocide begins at home 
but transcends national borders. That is, the framework of the 
Genocide Convention is that it counts on states to take the 
necessary steps to prevent genocide in their own society, but 
it also recognizes that the risk of genocide anywhere engages 
the responsibilities of states everywhere. Simply put, the 
Genocide Convention charges states to take whatever action is 
needed to prevent genocide or to bring its murderous violence 
to a swift and certain end.
    Mindful of this responsibility, government officials have 
at times, as others have mentioned, hesitated to respond to 
urgent cries for protection on the asserted ground that it was 
not clear whether the situation at hand constituted genocide. 
And so I want to emphasize a point that should speak for 
itself: If governments wait until it is legally clear that 
genocide has occurred, they have waited too long to prevent it. 
Besides, any situation that seriously raises the specter of 
genocide is undoubtedly one that requires urgent attention and 
effective action under a body of law that is not the subject of 
this hearing.
    As other witnesses have mentioned, a number of States and 
local governments in this country have not hesitated to act in 
response to atrocities in the Darfur region of Sudan. By 
enacting divestment laws targeting Sudan, they are doing their 
part to mount meaningful pressure on the Sudanese Government to 
bring the suffering in Darfur to an end.
    In your opening remarks, Mr. Chairman, you mentioned your 
plan to introduce legislation in support of these efforts. That 
type of legislation would be precisely the kind of legal action 
to end genocide that Raphael Lemkin hoped states would take 
when confronted with the specter of genocide in their time. And 
that type of congressional legislation may be necessary to 
ensure the survival of state divestment laws against legal 
challenge.
    When the Supreme Court invalidated a Massachusetts 
divestment law targeting Burma in a 2000 decision, it did so on 
the grounds that, when Congress enacted Federal sanctions 
targeting Burma, it ``manifestly intended to limit economic 
pressure against the Burmese Government to a specific range,'' 
which the Massachusetts law exceeded.
    U.S. courts could conceivably attribute a similar intention 
to Congress in relation to sanctions that it has imposed 
against Sudan unless Congress makes clear that it welcomes 
State and local divestment initiatives.
    Turning from prevention to punishment, the question that I 
would like to take up in my remaining time is whether U.S. law 
adequately fulfills our obligations of punishment under the 
Genocide Convention. I will suggest four ways in which this 
Subcommittee could consider strengthening the legal foundation 
for our national commitment to ensure that those responsible 
for crimes of ethnic annihilation are brought to justice.
    In my written testimony, I describe how the principal law 
implementing the Genocide Convention, the Proxmire Act, largely 
fulfills the letter of our treaty obligation to ensure that 
persons who commit crimes of genocide in U.S. territory can be 
punished here. The Proxmire Act also enables U.S. courts to 
prosecute U.S. nationals who participate in genocide abroad. 
That approach is not explicitly required by the Genocide 
Convention but advances its overarching aim of ensuring that 
genocide is punished.
    Looking beyond our own courts, the U.S. Government has 
played a leading role, as Ms. Mandelker indicated, in 
supporting various international courts that have jurisdiction 
over genocide as well as other serious crimes. It has also 
provided very impressive support to national courts to 
strengthen their capacity to bring to justice those who 
committed atrocious crimes in their own territory.
    Finally, recent legislation, which was also referred to in 
Ms. Mandelker's testimony, directs the Attorney General, when 
deciding on legal action against aliens who are excludable 
based on their suspected participation in genocide, to consider 
options for prosecution.
    But broader trends in international law and practice have 
in some ways outstripped the comparatively modest approach 
embodied in current U.S. law and reflected in the text of the 
Genocide Convention. Most important, if that treaty were 
enacted today, it would surely include a provision directing 
States to assert jurisdiction not only when genocide is 
committed in their own territory, but also when a suspected 
perpetrator is present in their territory unless they extradite 
or transfer the perpetrator for prosecution elsewhere. 
International treaties on torture and enforced disappearance--
these are treaties of more recent vintage than the Genocide 
Convention--include provisions along the lines I have just 
mentioned. And as a party to the Torture Convention, the United 
States has enacted legislation that enables U.S. courts to 
prosecute persons who have committed torture abroad when they 
are present in our territory unless they are prosecuted 
elsewhere. The United States recently acted in December to 
arrest someone under this legislation.
    Many other countries, including our leading allies, have 
laws that enable them to do the same thing for the crime of 
genocide, and they have enforced those laws in recent years to 
provide some measure of justice for victims of genocide in 
Rwanda and the Balkans who were unable to obtain justice at 
home or before an international court.
    But the United States is unable to provide a similar 
backstop against impunity for genocide. Thus when U.S. 
authorities discovered that a prominent suspect in the 1994 
genocide, Enos Kagaba, was in Minnesota, they undertook 
assertive action to ensure that he would face justice for his 
crimes, but they could not prosecute Kagaba for genocide here. 
And so in April 2005, Kagaba was deported to Rwanda, whose 
government announced it would prosecute Kagaba on genocide 
charges. But while the Rwandan Government has, indeed, been 
committed to prosecutions arising out of the 1994 genocide, its 
court system has been understandably overwhelmed by staggering 
numbers of cases. Moreover, the International Criminal Tribunal 
for Rwanda has so far been unwilling to transfer any of its 
cases to Rwanda, determining that its legal system does not yet 
satisfy international standards of fair process.
    Although U.S. action against Kagaba demonstrated our 
national commitment to deny sanctuary to perpetrators of 
genocide, the case also highlights gaps in our legal framework 
that limit our ability to ensure that those who commit genocide 
face justice, fairly administered. And so in closing, I would 
like to suggest for your consideration three types of 
legislative action that would close this gap.
    First, I urge the Subcommittee to consider amending the 
Proxmire Act to enable the United States to prosecute crimes of 
genocide not only when committed in the United States or by a 
U.S. national, but also when the victim is a U.S. national and, 
wherever the crime occurs, if the perpetrator is present in the 
United States, subject to the important caveat that the person 
will not be prosecuted fairly and vigorously before another 
court. That is an important caveat because, of course, the 
United States should not provide a forum of first recourse for 
genocide committed abroad. It should, however, do its part to 
close the impunity gap.
    Second, and as an important companion to my first 
suggestion, I hope this Subcommittee will consider further 
strengthening an important congressional directive to the U.S. 
Attorney General set forth in our Immigration and 
Naturalization Act pursuant to legislation passed a few years 
ago. This legislation directs the Attorney General, when 
determining the appropriate legal action to take against a 
genocide suspect who is deportable on that ground, to consider 
``the availability of criminal prosecution'' under U.S. law or 
the ``availability of extradition'' to a foreign jurisdiction 
that is prepared to prosecute the suspect. While this language 
evokes our national commitment to secure justice in the 
aftermath of genocide, it does not explicitly convey a 
preference for justice over deportation. I hope this 
Subcommittee will consider amending this law to convey that 
type of preference.
    Third, I hope this Subcommittee will consider amending the 
Proxmire Act to make it clear that U.S. courts can prosecute 
individuals who bear criminal responsibility for genocide under 
the well-established doctrine of superior responsibility.
    Finally, I urge this Subcommittee to consider amending the 
Torture Victim Protection Act of 1991, or TVPA, to enable 
plaintiffs to bring civil actions against persons, including, 
where appropriate, legal persons, who are responsible for 
genocide. As now drafted, the TVPA establishes a cause of 
action against persons who subject others to torture or extra-
judicial executions, but not against defendants suspected of 
genocide. I believe the reason for this is that at the time the 
law was enacted in 1991, its proponents could not easily 
imagine that in the final decade of the 20th century, survivors 
of genocide would have fresh cause to seek legal redress. Now 
we know better, and I urge this Subcommittee to consider 
legislation that would remove this anomaly in our law.
    These actions, I believe, would help redeem one promise of 
the Genocide Convention: to ensure justice for those who 
survived unspeakable crimes and to honor the suffering of those 
who did not.
    Thank you, Mr. Chairman.
    [The prepared statement of Ms. Orentlicher appears as a 
submission for the record.]
    Chairman Durbin. Thank you for your testimony.
    We are going to enter into the record statements from 14 
different organizations. In the interest of time, I will make 
them part of the record. We will not read them at this moment, 
but they represent, I think, some of the most widely respected 
human rights organizations in our country. Without objection, 
they will be entered into the record.
    I am going to allow 7 minutes in the first round of 
questions from each member here. I am going to try in my 7 
minutes to ask about two different issues or raise two 
different issues.
    Ms. Mandelker, let's start with the point made by Professor 
Orentlicher. Now, as I understand it, there is a difference in 
terms of the authority of the United States to bring 
prosecutions under the Genocide Convention and under the 
Torture Convention. And that is, I think, demonstrated by the 
fact that Chucky Taylor, who was a leader in Liberia and was 
living in the United States, is being prosecuted by the United 
States for engaging in torture, even though the acts that he 
was involved in did not occur in the United States or, to my 
knowledge, involve U.S. citizens
    On the other side, when it comes to the issue of genocide, 
it appears there is a much different standard of authority. As 
an example, a man by the name of Salah Abdallah Gosh, head of 
the security of the Sudanese Government, who has reportedly 
played a key role in their genocidal campaign, came to 
Washington 2 years ago to meet with senior administration 
officials. It appears to me that we did not have the authority, 
even if we had concluded that he had been complicit in genocide 
in Darfur, to arrest and try him under the Genocide Convention. 
Is that distinction the same as you understand it?
    Ms. Mandelker. Yes, Senator.
    Chairman Durbin. Make sure you turn your microphone on, 
please.
    Ms. Mandelker. Yes, Mr. Chairman. The jurisdictional bases 
under which we can prosecute genocide as opposed to torture are 
different. Under the genocide statute, we can only prosecute 
U.S. nationals, or if the genocide, in fact, occurs in the 
United States. The torture statute is a little different. It 
includes U.S. nationals and those found in the United States. 
So that is correct.
    Chairman Durbin. And that is a point made by Professor 
Orentlicher, that if given that additional authority, it would 
be a disincentive, would it not, for those engaged in this kind 
of conduct, knowing that the United States could, in fact, 
arrest and prosecute them for actions not involving U.S. 
citizens but actions that are considered crimes of genocide?
    Ms. Mandelker. Certainly, Senator, I cannot comment on such 
a proposal. The administration does not have a formal position 
on this issue. But we would be prepared to review any such 
legislation that you might propose.
    I would note, however, that expanding the law to establish 
jurisdiction for genocide in all cases occurring anywhere in 
the world would raise other serious legal and policy concerns.
    Chairman Durbin. How does that differ from torture?
    Ms. Mandelker. Well, Senator, the genocide statute--and, 
again, I am not commenting on any particular proposal, but the 
genocide statute was enacted after the ratification of the 
convention, which was different from the Convention on Torture, 
and the torture statute, of course, was enacted after the 
ratification of that convention.
    Chairman Durbin. Professor Orentlicher, would you like to 
comment on that distinction?
    Ms. Orentlicher. Thank you. Well, I think it is important 
to recognize that the Genocide Convention was adopted very 
early in the history of the United Nations. It was the first 
human rights treaty adopted, and it was a huge leap for the UN 
to pass an international criminal treaty of any kind. And so 
its approach was radical at the time, but now seems quite 
modest compared to more recent trends in international law. It 
has been common in recent treaties dealing with human rights 
violations that amount to crimes to establish a framework for 
universal jurisdiction.
    I want to emphasize that universal jurisdiction is always a 
last recourse. I think one of the most important things the 
U.S. Government is doing right now is providing support to 
local countries that are recovering from epic violence to 
strengthen their own legal capacity.
    I have just returned from a trip to Serbia and Bosnia, 
where U.S. efforts to support local courts in those two 
countries are really quite impressive. So universal 
jurisdiction is always a jurisdiction of final recourse.
    And the last thing I would like to say, if I may, is that 
experience in recent years has shown that the power of one 
national court to exercise universal jurisdiction has often 
provided a very healthy catalyst to countries where the crimes 
occurred to exercise jurisdiction themselves.
    Chairman Durbin. I would like to ask a question of both 
Senator Dallaire and Mr. Cheadle, and then I will give you the 
time between you, a minute perhaps apiece, to answer. I am 
sorry it is not longer.
    Senator Dallaire, we spoke earlier today about the type of 
force that might be sent into Darfur. Your experience in Rwanda 
I think gives you special expertise in this area. There are 
some who say, ``Oh, the United States, we cannot be sending 
troops all around the world.'' And others says, ``You are 
exactly right, and you should not be sending troops on the 
ground into Darfur.'' And I would like your comments on that 
particular issue.
    Mr. Cheadle, you have been involved in this divestment 
movement, and as I said, I am going to introduce a bill to 
allow State and local governments to engage in divestment 
policies. And I would like for you to tell me what your 
experience has been in the State of California after Senator 
Dallaire.
    Senator Dallaire. Two years ago, in Boston, I presented a 
concept of operations where, to go into Darfur, we would need 
about 44,000 troops to do the job. I mean, the place is as big 
as France. We would need about three divisions worth, plus some 
in Chad because of the refugee camps that are situated there 
and, of course, the problems on the border.
    The technology required to be able to cover that ground 
with so many troops can only come from those countries that 
possess the necessary technology, that is, the developed 
countries--not only the big powers but the middle powers. They 
could provide that in night vision systems and so on. But one 
of the big deficiencies of any of the forces going into the 
region is, of course, strategic lift and strategic 
sustainability of forces, which the developed countries can 
certainly provide.
    But if we are talking about purely troops on the ground, 
no, we do not need U.S. troops. In fact, it would not be a 
smart move to, in fact, use U.S. troops in a situation where 
the religious dimension reflects a potential friction that 
could come out of a force going there.
    The African Union's African standby force--which is a five-
brigade capability--is still at least 5, maybe 10 years away 
from being able to respond internally--it can be reinforced, 
however, with other African forces and forces from other 
regions of the world without necessarily coming to the 
Christian developed countries and certainly not to the major 
powers. Middle powers can provide capabilities--advisory and 
technology--while other countries could provide the troops if 
the political will were there for those troops to go in. This 
would either be as a force of protection to help re-establish 
those people, those 2.5 million, in other places or ultimately 
a force of intervention against the Sudanese Government under 
Responsibility to Protect.
    In that scenario, 44,000 might not meet the requirement, 
but then, again, do we have the force structures in the world 
to do it? And I believe yes, without coming to the developed 
world. It is a matter of simply needing the political will to 
encourage others to want to provide them.
    Chairman Durbin. Mr. Cheadle, on divestment?
    Mr. Cheadle. Well, in this and in many issues related to 
this, I have sort of been enlisted since my appearance in the 
film ``Hotel Rwanda.'' And in this particular issue, Adam 
Sterling, who was working with the Darfur Action Committee out 
of Los Angeles and STAND, Students Taking Action Now for 
Darfur, at UCLA, had been lobbying for his school, UCLA, but 
also the entire UC Regents to consider divesting their funds 
from portfolios that were benefiting from doing business in 
Darfur. And we had a rally at the school, and we were able to 
see that happen.
    Closely on the heels of that, legislation was drafted. Adam 
was one of the people who drafted it as well. There is another 
committee member out there whose name I am forgetting--Paul 
Horowitz, excuse me--Paul Koretz, rather. Paul Koretz. And they 
drafted legislation that Governor Schwarzenegger signed into 
law last year which divested--which Calpers and calstrs, two of 
the major pension funds in California, divested their funds 
from businesses operating in the Sudan.
    Since then, there has been a lot of legislation around the 
country and many bills in a lot of different States to try and 
achieve this same end. And in the California bill, I know that 
there had been some resistance to it, obviously fiduciary 
responsibilities that they felt were not being met by these 
divestment bills. And I believe there is a provision in the 
bill that allows a certain amount of time--I do not know if it 
is 6 months to a year--for companies to find other means, other 
companies to invest their funds in. And it has been shown that 
many of these funds, the profit that they are making is very 
nominal, and they are able pretty easily to find other places 
to invest their money, that it does not really take a big hit 
to these funds.
    So this is what we are trying to encourage other States to 
look at, and I just would like to offer my support to what you 
are proposing to do in any way that I can.
    Chairman Durbin. Thank you, and I am going to recognize my 
colleagues and give them a little leeway here because I went 
beyond the 7 minutes.
    Senator Coburn?
    Senator Coburn. Thank you, Senator, and I thank each of you 
for your testimony.
    You know, I kind of want to get something going between 
Senator Dallaire and Don Cheadle here for a minute. Your 
question is: What will we do? And we just heard Senator 
Dallaire say what is needed.
    Now, somewhere between what your questions ask and what you 
are saying, there is an answer. Except where is it? That is the 
question. It is the inaction, the absolute inaction of the 
United Nations. It is feckless when it comes to this response 
at the present time.
    So the question I have is: What do we do? You know, what is 
the answer to work through the bureaucracy? What is the answer 
to play off the different international powers--Russia and 
China--in terms of how they do not want to see something coming 
even though they do not want to claim it? Or we have a United 
Nations Human Rights committee that has a majority of the 
members of that are not stellar players when it comes to human 
rights.
    What is the answer? Is the answer outside of the United 
Nations? Is it a coalition of the willing? What is the answer? 
Let's answer Mr. Cheadle's question. What will we do? It is not 
what can we do. What will we do? You know what to do, correct?
    Senator Dallaire. Just give me the troops.
    Senator Coburn. All right. So how do we get the troops?
    Senator Dallaire. Well, in fact, Senator, it is rather 
interesting that the United Nations has all the planning done 
for the current phases of operations in order to reinforce the 
African Union, but the only thing that is missing is the 
political will of the sovereign states that make it up to want 
to put the troops there. And they do not want to put the troops 
there, to be very blunt, as the question is put forward, 
because there is no self-interest in there.
    I mean, who cares about Darfurians? They are sub-Saharas 
black Africans. They are the lowest priority of humanity. They 
are no different than the Rwandans. They are not worth the 
investment. We put 67,000 troops in Yugoslavia, and I could not 
get keep 450 in Rwanda. We are putting them all over the place, 
including Afghanistan, and we do not put them there.
    I think that the essence of it is: Do we believe that those 
humans count? And are the politicians of the sovereign states 
willing to create a coalition of the willing outside of the UN 
or, in fact, give the Security Council the mandate that it 
should be articulating to, in fact, deploy those forces, 
because you can find them.
    Senator Coburn. I will ask you this question, and then I 
will ask Mr. Cheadle to respond as well. Is there any doubt in 
your mind that this country is willing to support that effort?
    Senator Dallaire. Yes.
    Senator Coburn. There is doubt in your mind that we are--
    Senator Dallaire. Yes. Your President how long ago has said 
that it is a genocide, and what have we seen since? We have 
seen a lot of cash going--
    Senator Coburn. No, no. I am talking about the specifics of 
approving that plan at the United Nations.
    Senator Dallaire. No one. This country does not even want 
to do the contingency planning. The big powers, the Brits, the 
French--the Russians and Chinese are not even on the same 
wavelength of wanting to do any possible intervention, let 
alone the political negotiations that we think they should be 
doing to move the Sudanese Government.
    Senator Coburn. So it is your testimony that you think that 
we are part of the obstructing force at the UN for this to go 
forward.
    Senator Dallaire. Any nation that has a capability of 
committing itself to protecting under the Responsibility to 
Protect has demonstrated an unwillingness to go ahead.
    Senator Coburn. Big difference. I asked you a very specific 
question. We are part of that contingent of communities that is 
obstructing the ability for this to move forward.
    Senator Dallaire. Yes, and so--
    Senator Coburn. In spite of what we have done at the UN 
Security Council.
    Senator Dallaire. And so is my country as a leading middle 
power.
    Senator Coburn. Okay. And so what will we do about that?
    Senator Dallaire. That remains--your political decision of 
committing the resources, either the political resources, the 
economic resources, whatever means, divestment and so on, and 
the military resources--
    Senator Coburn. But divestment is not going to change 
anything except for the next 2 or 3 years. I am talking about 
something in the next 2 or 3 months. Divestment is great, but 
that is a long-term strategy. I am talking about the short-term 
strategy. What do we do? How do we develop the coalition of the 
willing?
    Mr. Cheadle. Well, Rwanda, it is ironic that the Rwandis 
are standing by with two to three battalions of soldiers 
waiting to go in. They need, obviously, the command and control 
to come through the UN. They need the support, they need the 
capabilities to get there. They cannot get there.
    But all of these things need to be shorn up. All of these 
gaps need to be shorn up. And it has to come through, if not 
the President, the Secretary. It has to come from a high enough 
position that it has power, that it has teeth, and that it has 
strength. So far it is--this is a very well meaning Committee 
and we are here trying to do our best, and I have been trying 
to do my best as an individual, as is Romeo Dallaire. But we 
need the powers that are in control to put their pressure to 
these other governments that are the partners in this, to put 
this through, or nothing will happen.
    Senator Dallaire. Senator, may I reinforce that point by 
the following: that the countries--
    Senator Coburn. Let me make an exception here for a minute.
    Senator Dallaire. Sorry.
    Senator Coburn. I want permission to request the State 
Department to answer this question for our Committee as well--
in other words, their position on this, because we have heard 
one side of it. And it is a little bit different than what I 
have heard, I will tell you quite frankly. You are looking at 
it from the inside, which is a greater perspective than I have, 
Senator, and I will grant you that. But I think for the record, 
to be fair, we ought to have that because that will help us 
have some action.
    Go ahead, Senator Dallaire.
    Senator Dallaire. Only to reinforce my point on the 
political decisions. Another obstacle to, in fact, using force 
under Responsibility to Protect--after having exhausted all the 
other means, including really giving the Sudanese Government a 
run for its money, which has not really happened so far--is the 
fear of casualties. The fear of casualties in a country that 
does not count, in an area that does not count. Sovereign 
states are having a terrible time since, in fact, Mogadishu to 
survive any such operations when, one, there is no self-
interest and, second, it is a place where it has no impact 
really on your security. Do we want to take casualties? And 
most of the developed countries have refused that.
    Senator Coburn. Yes, because they may be next. That is why. 
Yes, because they may be next.
    A question: If you had three or four countries, a coalition 
of the willing, and went before the UN and they said no, in 
your mind is it still correct for them to go if they can 
accomplish the task? I am talking about the very clear moral 
issue of stopping genocide, regardless of what a UN body may 
say?
    Senator Dallaire. I am not one to go outside of the UN with 
single-nation-led coalitions because in my estimation it means 
that the international community does not want to have the 
solution.
    However, I am certainly for a coalition of the willing to 
create a capability, both political and military, to introduce 
the possibility of conducting interventions there.
    Senator Coburn. I think you answered the question by the 
description of the UN. The UN does not want to address this 
issue.
    Senator Dallaire. But, sir, the UN is us.
    Senator Coburn. That is right. That is right. And the UN 
has waste and has corruption to the tune of about 25 percent of 
its budget every year. It absolutely is non- transparent in 
what it gives to the world, how it spends its money, where it 
does in terms of the connection. It is abysmal in terms of us 
knowing what it is doing. It is not us because we do not get to 
see what ``us'' is doing. The UN has to change and it has to 
become transparent so we can see how it is spending its money 
and what it is doing with that money in terms of its 
peacekeeping operations. And 25 percent, one out of every $4, 
that is spent on peacekeeping is defrauded--is defrauded. That 
money, that $1 billion, could be solving the problems in Darfur 
today.
    Thank you.
    Chairman Durbin. Senator Cardin?
    Senator Cardin. Well, Mr. Chairman, let me thank all of our 
witnesses today. This has been certainly an important hearing 
and a story that needs to be told.
    We have an immediate problem in Darfur to bring an end to 
the genocide. That is the immediate problem that we need to 
deal with. And we have a game plan, and that game plan is the 
introduction of additional troops, and we have to get that 
done. It requires the leadership of the United States. It 
requires us working with every available means, including the 
United Nations. And I think we need to be prepared to use 
economic sanctions, particularly oil revenue sanctions, to make 
sure that, in fact, is carried out. I am not sure whether we 
are committed to that type of hard plan to end the genocide in 
the Darfur region of Sudan.
    But I think the broader question is--I mean, the immediate 
issue is to stop the killings, stop the genocide. The broader 
issue is to take off the table ethnic cleansing as a means of 
accomplishing political ends. That has happened too many times 
during my lifetime, and it looks like there is no end in sight 
to other countries using similar tactics, that ethnic cleansing 
is permitted.
    And I think it is somewhat the failure of leadership. I 
remember when I was in the State legislature--we were talking 
over lunch--we talked about bringing an end to the apartheid 
government of South Africa and we were suggesting economic 
sanctions, so many people said, ``Oh, don't do that. You are 
only going to hurt the South Africans by doing that.'' So 
everybody seems to want to take their particular tool of the 
table.
    I guess my question to you is that if you had to pick one 
tool--we have talked about military intervention in regards to 
Darfur. We have talked about economic sanctions, and the 
Chairman's bill is one that I support to bring about more 
effective economic sanctions against countries that are 
involved in ethnic cleansing. We talked about the war--we have 
not talked as much about the war crimes tribunals, but we 
always thought that bringing international justice, crimes 
against humanity, using international tribunals would make it 
clear that you cannot get away with genocide, that it does 
involve the international community, it is not a matter of your 
government sovereignty, that this is an issue on which every 
civilized country has a means of intervention. So we could 
expand the use of special tribunals to try to hold countries 
accountable.
    We have international organizations, the United Nations. I 
know Senator Coburn does not exactly have confidence. I think 
that the United Nations represents all of us, and it is a tool 
that needs to be used. I have been working with the OSCE, which 
is 56 countries in Europe, Central Asia, and North America. I 
think that has been effective in putting a spotlight on human 
rights generally, because when you start seeing a lack of 
commitment to human rights, it is a slope that leads ultimately 
in some cases to genocide. And you need to have a stronger 
international presence to say these are important issues, ones 
that we care about. We do care about people's rights to live in 
their country and to have their rights respected.
    So it is frustrating to all of us because we have been 
through this too many times. But what tools are the most 
effective? Should we put our attentions to the war crimes 
tribunals? Should we put our attentions to the international 
organizations, to strengthen the international organizations? 
Would it be easier to use military intervention in countries, 
letting them know that it is not their sovereignty, that we are 
all involved in it?
    I know it is easy to say all of the above, but if you had 
to pick one that would be the most important for us to 
strengthen, which one would you pick?
    Mr. Cheadle. Well, I spoke--before I came here, I met with 
Condoleezza Rice, and we were speaking about this very thing. 
And she said that we ought to take their ``yes'' as the 
``yes.'' Bashir has said that he will accept a hybrid force. 
There are certain caveats that he had. But we should take the 
``yes'' as a ``yes,'' prepare the troops, get the control and 
command in place, get the communications in place, get 
everything set up so then we can say we have it now and now we 
can go.
    And then if he still says no, then we have a real 
obstruction, as opposed to what we have now, which is a bunch 
of negotiations around small points. We have to say we are 
ready to go, this is set up. And then if he is not 
obstructionist, then there is--then the question of sovereignty 
does come onto the table. Then we are asking: Are you still 
allowed to say no when the world is saying yes? And I think 
that is what she believes is the most important thing, and I 
think it is not a bad idea.
    Senator Cardin. Senator?
    Senator Dallaire. We are like a wet noodle in this exercise 
because we have got no teeth or we do not want to show any 
teeth. We have got all kinds of initiatives and debates and 
discussions on the political front. We have got all the data we 
need to prove that it is a genocide and it is a genocidal 
government. We have got all the NGO community saying that they 
cannot even help the people that are there right now and that 
it is slowly continuing, the genocide that started a few years 
ago. And the question is: With all that data there, why is it 
still possible that we are talking as if we are talking to an 
equal when we talk to the Sudanese Government? How is it 
conceivable that a government that has so blatantly gone 
against fundamental human rights, massive abuses thereof, that 
we still treat them as an equal sovereign state with all its 
capabilities in decisionmaking?
    We endorsed the Responsibility to Protect doctrine within 
the UN--one of the reforms that Senator Coburn is certainly 
calling for--but it is only one of the 101 that Kofi Annan 
tried to introduce, Well, which State stopped most of them? 
This one. Only three made it through. And many of those reforms 
would bring a lot of changes and maybe achieve what you are 
trying to achieve, what I hope to achieve: a more effective UN. 
But ultimately, someone has to say, ``We are going to prepare 
contingency plans for the possible deployment of forces that 
would intervene in Sudan. If you do not accept the UN-proposed 
mandate and deployment capabilities to reinforcing the African 
Union, then we will take action.'' But not one country has 
offered even to start planning on a contingency basis. Not one. 
The UN does not have that capability. You need the big powers. 
You need the French, who could do it, you know, with others 
supporting them. Middle powers could join in and create a 
coalition to build that contingency plan. Not one even wants to 
start the contingency planning, and so there is no stick.
    Senator Cardin. It is a matter of political will because, 
as I think we have all said, the sovereignty issue really does 
not play here.
    Senator Dallaire. Well, that, is exactly the problem 
Responsibility to Protect, came out of the Rwandan genocide, 
during which we blatantly said that we should go in but did not 
want to. We just do not want to follow up on a concept that we 
all agreed to implement if necessary. It is happening, and we 
are backing out. And it is not because the soldiers are not 
there. Hey, we have got millions of soldiers. It is not because 
they are committed else where that they are not available. It 
is because the political will is not there to make them 
available.
    Senator Cardin. All right. I respect Senator Coburn's 
points, and I know we share a lot of frustration about reform 
at the United Nations, and I agree with that. But I think when 
you are talking about the introduction of troops, it is going 
to be the major powers that are going to be making those 
judgments, more so than delegating it to the United Nations. 
They reflect basically what the major powers are committed to 
doing, and we do not have that support at this point, according 
to what you are saying.
    Senator Dallaire. But the major powers are the Permanent 
Five. There is a gang out there that is really not pulling its 
weight, and those are the middle powers. Why aren't we 
influencing the Germans to get in there, rather than just 
throwing cash at it? Why aren't we trying to influence the 
Japanese to change their Constitution to allow that to bring 
capabilities rather than just cash to address the problem and 
so on? Why aren't the Canadians being pushed far more strongly 
to commit themselves to human rights and responsibilities? We 
spearheaded R2P in 2001, and a situation that fits its criteria 
now exists, and yet we are still not putting the assets there.
    I do not think the big powers should keep stumbling over 
each other to try to meet all these requirements. I think there 
are a lot of other nations who are sitting on the fence that 
the big powers should be pushing to get involved.
    Senator Cardin. Well, I agree, but I do not think the major 
powers are committed yet to doing this; therefore, they are not 
trying to convince the other powers--
    Senator Dallaire. You are absolutely right.
    Senator Cardin.--because they are not there yet.
    Thank you, Mr. Chairman, for your patience. I appreciate it 
very much.
    Chairman Durbin. Senator Whitehouse?
    Senator Whitehouse. Thank you, Mr. Chairman. Let me start 
by telling you how pleased I am that you have called this 
Committee into being and have focused its first efforts on the 
genocidal bloodletting in Darfur. It is a great accomplishment, 
and I am proud to be here with you. And to the witnesses, thank 
you so much for your help and your testimony.
    It strikes me that genocide is a pattern through human 
history--just in this century, the genocide of the Armenians, 
the Holocaust, the Killing Fields of Cambodia, Bosnia and 
Kosovo, Rwanda, now Darfur--and we have never really as a world 
community developed the capability for addressing it. And it 
seems that we may now have the wherewithal to do that, the 
opportunity to do that, the human desire to do that. This may 
be one of those moments whose time has come.
    And in that context, let me ask you this--and forgive me, 
because the question begins rhetorically, but what nation more 
than any other has the resources to provide military power, 
medical aid, emergency relief, and logistical support? What 
nation more than any other has the technological capability to 
go around the world and quickly build communications, a command 
and control system? What nation more than any other has the 
capability to deploy such assets worldwide, rapidly, and in 
quantity? And what nation more than any other has the authority 
to drive and organize international cooperation? And if that 
nation found the energy and the will to match those 
capabilities so that it had an institutional capability with 
itself and worldwide to respond to tragedies of this nature--
not only genocidal but caused by natural disaster as well--what 
do you believe the effect would be on the good will, on the 
moral authority, and on the international standing of that 
nation? General?
    Senator Dallaire. My response, sir, is the following: Why 
do you always want to set yourselves up? Why the leading world 
power that has all those capabilities, why in seeking solutions 
should you necessarily have to commit, yourselves, all those 
capabilities when, although diffused, they exist in the rest of 
the international community?
    Let me throw a real weird one at you. Why can't the Chinese 
provide all that? They have got it. It may not be as modern, 
but they have got it. And they are in there, and they are keen 
on that oil. And they know what our problems are in the context 
of human rights, with what is going on in Darfur. Why don't 
they go in? Why don't we support them in going in there to 
provid that capability if they are so chummy with the Sudanese?
    What is fundamental is that the Darfurians, 2.5 million 
people, are dying out there with absolutely nothing, and we are 
all sort of working through a number of permutations without 
really wanting to hit somebody between the eyeballs and saying, 
``Listen, you go in and do it because you are the one who is 
stopping us from actually trying to help this situation.''
    And so your question leads us, of course--a leading 
question, I suppose--to the United States. But why do you want 
to do that when there are so many others that also believe in 
human rights, have capabilities, but are sitting there waiting 
for you to set yourself up again?
    Senator Whitehouse. Because it looks like somebody has to 
break the logjam here.
    Senator Dallaire. Then create the initiative to bring all 
those other beavers together and get them to do it with your 
moral support and political will behind it.
    Senator Whitehouse. That is part of the capability that I 
mentioned--the capability and the authority to drive and 
organize international cooperation.
    Mr. Cheadle?
    Mr. Cheadle. I absolutely agree. I do not think that 
necessarily the United States should be the face of the force 
that goes in. I do not believe that we have to commit troops on 
the ground. I believe there are so many steps that can be taken 
prior to that eventuality, if that even is something that 
occurs. As General Dallaire said, I think we can play a role as 
leaders and as support of other countries who have very great 
interest in that region--China being one of them. When we went 
to Egypt, they spoke of they do not want a disaster on their 
border. As that region becomes more and more unstable, that is 
the last thing they want is another unstable country on their 
border.
    But I think we need consistent and continual commitment to 
a process. This is not going to be one gesture that is going to 
solve this. We have to apply diplomacy that takes continual 
attention, and that can come from many different ways. But the 
leaders have to want that, and the leaders of not just this 
Nation but the other nations, as General Dallaire has said, 
have to see this as an important issue. Basically, they have to 
believe that it is important to save human beings' lives who 
have no--who give them no political cachet. And at this point, 
we have not seen that shift.
    Senator Dallaire. There is about to be a meeting of the G-
8, and there is the G-20. They are sending representatives to 
that table. Why not squeeze them? And some of them have 
capabilities that have not been committed to this that should 
be called to task.
    Senator Whitehouse. I think we agree.
    Thank you, Mr. Chairman.
    Chairman Durbin. Thank you.
    I would like to ask unanimous consent that the statement by 
Senator Cornyn, who unfortunately had to leave, be made a part 
of the record. Without objection, it will be.
    We will have a second round, and let's do 3 minutes so we 
each have a brief question to ask.
    The one thing that I find interesting--there are lots of 
things interesting, obviously, but the one thing that is 
curious and interesting as you watch foreign policy and 
developments in the world is how often it comes down to oil. 
Oil. It turns out that oil brings in 85 percent of Sudan's 
foreign revenue, $7.6 billion a year. It turns out there are 
three major oil companies in Sudan. They are owned by China, 
India, and Malaysia.
    The question I would like to ask--and maybe Ms. Mandelker 
or Professor Orentlicher, someone else if they would like to 
join in--is: What are the legal means that we can use to put 
pressure on the Sudanese when it comes to their oil revenues? 
It strikes me that if we find a way to touch those revenues, we 
are going to get the attention of the Sudanese very quickly.
    Ms. Mandelker. Senator, of course, I am from the Criminal 
Division at the Department, so I am not prepared to comment on 
your question. But it is clearly an important one and one that 
we will carefully consider.
    Chairman Durbin. Dr. Orentlicher, do you have any thoughts 
on that?
    Ms. Orentlicher. Well, legally, of course, it is possible 
to devise sanctions aimed at an oil embargo, and that would 
certainly carry a lot of punch. But, you know, the question 
whether it is politically feasible is one that is more in your 
province than mine.
    May I comment on one other issues that was alluded to 
earlier?
    Chairman Durbin. Of course.
    Ms. Orentlicher. In terms of the panoply of levers that are 
available, you know, to say the obvious, we need to not pick 
just one, and it is clear from our experience in other areas 
like Bosnia that it took a concerted range of actions to bring 
an end to the violence that lasted 3-1/2 years there.
    One tool, and the one that I have been most involved in, 
involved international criminal sanctions. I mention this 
because that is likely to come onto the radar with respect to 
Darfur soon in a way that it is not now the case. The 
prosecutor of the International Criminal Court has indicated 
that he is likely to come down with indictments relating to 
Darfur later this month. At some point there may be a dilemma 
presented to policymakers about whether the indictments in some 
way impede a peace process or not.
    And so I would like to put that issue in a broader context. 
When there is genuinely reason to believe that outstanding 
investigations impede international security, there is a 
mechanism for the Security Council to suspend that process. But 
I want to sound a cautionary note. When faced with challenges 
of the magnitude of those we face in Darfur, it has proved in 
other situations tempting to surrender a process of justice in 
the often delusional hope that it will bring an end to the 
carnage. We--
    Chairman Durbin. So to be specific, if you think the 
International Criminal Court is going to come down in February 
with some indictments or prosecutions against some of the 
leaders in Sudan, do you think the UN might consider bargaining 
away those actions?
    Ms. Orentlicher. The issue may arise at some point. It 
arose when Slobodan Milosevic was indicted by the Yugoslavia 
War Crimes Tribunal, and it has been discussed in the context 
of investigations in Uganda by the International Criminal Court 
when peace negotiations were underway.
    So the big picture I want to emphasize is that our 
experience in the past with this issue has been that it is 
tempting to say at that moment where the dilemma presents 
itself, this is a thorn in the side of peace negotiators, we 
have to get rid of it.
    And I want to say nobody I know who is involved in justice 
for genocide would want to stand in the way of action that 
would actually bring the carnage to a halt, but experience has 
shown that when diplomats raise this concern and argue for 
amnesty, it is often an alibi for not taking more assertive 
action to bring carnage to a halt. And it has proven possible 
so far to have peace with justice. In fact, it has often been 
the case that indictments have facilitated an end to a conflict 
rather than provide an impediment to peace.
    Chairman Durbin. Thank you.
    The last point I would like to make on the oil issue is I 
am not going to stop with this inquiry. I want to find out what 
tools we have available by way of sanctions, by way of actions 
involving Sudanese oil.
    General Dallaire?
    Senator Dallaire. The statistics you quoted with respect to 
the funds coming available to the Sudanese Government through 
the oil, 70 percent of that is going to into military hardware. 
So the first question I would ask is: When you look at the 
security of that country, why are we not putting something like 
an arms embargo on Sudan? If they are pouring all that money 
into weapons that are being used to actually perpetrate and 
continue this massive human rights abuse, why aren't we doing 
something about that?
    Chairman Durbin. I would not be surprised, General, to find 
that some of the countries with the oil interests in Sudan are 
also supplying the arms.
    Senator Dallaire. There we go. So who is running the show?
    Chairman Durbin. Senator Coburn?
    Senator Coburn. Thank you.
    Senator, it is a pleasure to have you here, one. No. 2, I 
am going to read back to you a little bit of what is in your 
book because I think we agree about the UN. You are much less 
frustrated with it than I am, or you are in much better control 
of your emotions over your frustration. I do not know which it 
is.
    ``Though I, too, can criticized the effectiveness of the 
UN, the only solution to unacceptable apathy and selective 
inattention is a revitalized and reformed international 
institution charged with maintaining the world's peace and 
security, supported by the international community and guided 
by the founding principle of its charter and universal 
doctrines on human rights. The UN must undergo a renaissance if 
it is to be involved in conflict resolution. This is not 
limited to the Secretariat, its administration bureaucrats, but 
must encompass the member nations who need to rethink their 
roles and recommit to a renewal of purpose. Otherwise, the hope 
that we will ever truly enter an age of humanity will die as 
the UN continues to decline into irrelevance.''
    I believe it is climbing into irrelevance constantly right 
now, and I agree with your words. I would add one thing to it. 
They need to be transparent about what they do so that the 
world outside of the governments can judge what they are doing.
    I want to go back just one moment and try to--because I 
think the problem is the UN. And the UN is the member states, I 
will grant you that. I believe we need an international body, 
and I believe we need to have leadership in that international 
body. But we cannot sit here and ask Mr. Cheadle's question, 
``What will we do?,'' and the answer between that we will not 
play in the UN. I mean, that is basically what we are saying.
    And so why won't we play in the UN? Because the UN is no 
longer an effective voice to prevent something like this 
because everybody is gaming the UN. And if you look at the 77 
countries that are consuming the dollars or playing the games 
with positions and inside ballpark in New York City, you will 
recognize that nothing positive is going to come out until that 
whole system is changed and revitalized and comes into the 
sunshine of public opinion so we can see what is going on.
    So I comment, and only on your writings, because I actually 
agree with them, and there is tremendous wisdom. Darfur is 
happening today because the UN is feckless, because it is not 
the world body it claims to be, because it is not acting in the 
way it should be acting. And that truly is a reflection of the 
member states. But how did it get that way?
    Senator Dallaire. How it got that way? You have just given 
me the great opening. How it got that way is that sovereign 
states let it move down that road.
    Senator Coburn. That is right.
    Senator Dallaire. And it is interesting that the 101 
reforms that Kofi Annan tried to bring through would have gone 
a long way toward greater transparency and impartiality, also, 
which is absolutely crucial in this exercise. We stopped that, 
but hopefully we will, and this country will, take a lead in 
trying to round those things up and bring them back in.
    However, we are in a new era, and I wrote that with the 
backdrop of the research I am doing on conflict resolution. We 
entered a whole new era at the end of the Cold War. This is no 
longer the same situation. The rules have changed. In a sense, 
the threat plays with no rules at all. It is extremism, and it 
will kill its own to achieve its aims.
    But in the same light, we are using old tools. We are using 
old diplomatic tools, old military tools, old economic, 
humanitarian tools of the Cold War era, and we are trying to 
adapt them to fit this era. And what we are discovering is they 
do not work. We are crisis managing, we are on-job training, we 
are doing lessons learned.
    Let me give you a very short example. I spent 35 years in 
NATO, and we had a lexicon. In the military, we use action 
verbs, right? Attack, defend, withdraw, bypass, and so on. 
Everybody knew what they meant. The Russians knew what they 
meant. All of a sudden we enter this era, and my mandate is 
``to establish an atmosphere of security.'' What does 
``establish'' mean? I mean, I did not invent it. It came from 
the political, diplomatic side. Establish? Does it mean I 
defend the country against a third party when I am demobilizing 
both armies? Does it mean I watch it? And what is an atmosphere 
of security? A police state? A sort of no-weapons area?
    And so we are using terminologies, we are using tools that 
are outmoded, and what we need is a whole new conceptual base 
to conflict resolution. We need new ideas, new concepts to 
solve these problems. And what we are seeing throughout the 
structures is people adapting old stuff and finding it does not 
work.
    Senator Coburn. Thank you, Mr. Chairman.
    Chairman Durbin. Senator Whitehouse, do you have any 
questions?
    Senator Whitehouse. Thank you, Mr. Chairman.
    Let me come at my question another way. You posited a very 
cold-eyed calculation by the world: that the Darfurians have no 
political value to anyone, that they have no economic value to 
anyone, that they are expendable and, hence, there is no 
effort.
    Even from a hard, cold-eyed calculation, is there not a 
calculation to be made that a country that can show leadership 
regularly in responding to these kinds of tragedies can gain 
from that an element of international standing, an element of 
international good will, an element of international moral 
authority that may not have immediate value in that particular 
area but, nevertheless, is an asset of the countries to deploy 
in all of its different foreign, military, and other 
international engagements?
    Senator Dallaire. Sir, that is like apple pie. Of course it 
would. I think, however, the deficiency in that is that that 
same country should be demonstrating innovative approaches in 
how to do that and not use some of the old semi-imperial, 
dominant types of methodologies that were used in the past that 
simply will not meet the very complex, ambiguous scenarios in 
which we find ourselves today--in which, not to minimize it, 
religion is a major player.
    And so we are into a whole different set of circumstances 
that need that same moral authority and demonstration of will, 
but that also needs a whole new set of tools to do it right. We 
cannot simply try to adapt the old methods of the past. You 
know, a new mantra.
    And so as I indicated, the UN--you do not need another UN. 
You need a renaissance in the UN. And I think the major players 
have got to initiate that from within also.
    Mr. Cheadle. And I believe, if I can piggyback on that, on 
the question.
    Senator Whitehouse. Please.
    Mr. Cheadle. I believe sometimes in a way that role of 
leadership can be supportive, and that may be a place where we 
can play a real part in this, is that we support other players 
who have interests in that area. This is Muslim- against-Muslim 
violence that is happening in this country, and we should work 
with those who are moderate and those who wish to see that 
violence end in their own self-interest and be a supportive 
player in that way, not necessarily try to stand out in a 
leadership role as the great United States fixing your problem, 
but tell us where we can apply our help, where we can apply our 
technology, where we can apply our assets, where we can help 
with control and command and support it from that position.
    And I do absolutely agree with you that it would go a long 
way in sort of resurrecting what we hope to be as a nation, a 
leader of morals and an example of that.
    Senator Whitehouse. Yes. Thank you, Mr. Chairman. I know 
that the Marshall Plan, for instance, did not put a lot of 
troops on the ground in Europe in order to accomplish its 
goals, but it certainly was a high point in American 
leadership. Thank you very much.
    Chairman Durbin. Thank you, Senator.
    I want to thank the following individuals and organizations 
who did submit statements for the record, and I want to read 
this list because it is a very impressive list: Save Darfur 
Coalition, Genocide Intervention Network, Armenian National 
Committee of America, Armenian Assembly of America, the Jewish 
Council for Public Affairs, Freedom House, Amnesty 
International, Human Rights Watch, Human Rights First, Admiral 
John Hutson, the Jewish Community Relations Council of Chicago, 
the Alliance for Justice, Open Society Institute, and the 
Center for American Progress.
    The hearing record will be open for a week for anyone who 
wishes to submit additional materials. Written questions for 
the witnesses must also be submitted by the close of business 1 
week from today if there are follow-up questions. And we will 
ask the witnesses to respond in a prompt way.
    I thank everyone for the sacrifice you made to be here 
today for this inaugural hearing, and I will leave here 
remembering many things, but I will certainly remember the 
admonition and challenge of Mr. Cheadle: What will we do?
    Thank you all very much. This Subcommittee is adjourned.
    [Whereupon, at 4:58 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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