[Senate Hearing 110-786]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-786

  FROM NUREMBERG TO DARFUR: ACCOUNTABILITY FOR CRIMES AGAINST HUMANITY

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

                                HEARING

                               before the

                SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 24, 2008

                               __________

                          Serial No. J-110-102

                               __________

         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 Chesser, Republican Chief Counsel













                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma, 
  prepared statement.............................................    41
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
    prepared statement...........................................    43
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisonsin.......................................................    18
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    68
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     4

                               WITNESSES

Cheek, Joey, Co-founder and President, Team Darfur, Greensboro, 
  North Carolina.................................................    11
Hari, Daoud, Author, The Translator: A Tribesman's Memoir of 
  Darfur, Baltimore, Maryland....................................     6
Orentlicher, Diane, Professor, Washington College of Law, 
  American University, Washington, D.C...........................     9
Smith, Gayle, Co-Chair, ENOUGH Project, Washington, D.C..........     7

                         QUESTIONS AND ANSWERS

Responses of Daoud Hari to questions submitted by Senator Durbin.    25
Responses of Diane Orentlicher to questions submitted by Senators 
  Durbin, Coburn and Whitehouse..................................    28

                       SUBMISSIONS FOR THE RECORD

Ardouny, Bryan, Executive Director, Armenian Assembly of America, 
  Washington, D.C., statement and attachment.....................    35
Cheek, Joey, Co-founder and President, Team Darfur, Greensboro, 
  North Carolina, statement......................................    38
Farrow, Mia, Actress and Activist, Bridgewater, Connecticut, 
  statement......................................................    46
Hari, Daoud, Author, The Translator: A Tribesman's Memoir of 
  Darfur, Baltimore, Maryland, statement and letter..............    50
Human Rights First, New York, New York, statement................    61
Keppler, Elise, Human Rights Watch, New York, New York, statement    64
Merchant, Pamela, Executive Director, Center for Justice & 
  Accountability, San Francisco, California, statement...........    70
Nahapetian, Kate, Government Affairs Director, Armenian National 
  Committee of America, Washington, D.C., statement..............    77
Orentlicher, Diane, Professor, Washington College of Law, 
  American University, Washington, D.C., statement...............    80
Smith, Gayle, Co-Chair, ENOUGH Project, Washington, D.C., 
  statement......................................................    87

 
  FROM NUREMBERG TO DARFUR: ACCOUNTABILITY FOR CRIMES AGAINST HUMANITY

                              ----------                              


                         TUESDAY, JUNE 24, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                          Subcommittee on Human Rights and the Law,
        Washington, DC
    The Subcommittee met, pursuant to notice, at 9:59 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Richard J. 
Durbin, Chairman of the Subcommittee, presiding.
    Present: Senators Feingold, Whitehouse, and Specter.

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

    Senator Durbin. The Subcommittee on Human Rights and the 
Law will come to order.
    The subject of this hearing is: ``From Nuremberg to Darfur: 
Accountability for Crimes Against Humanity.'' In our first year 
and a half, this subcommittee has broken much new ground. Today 
is another first. This is the first-ever congressional hearing 
on crimes against humanity.
    For generations, the United States has led the struggle for 
human rights around the world. Over 50 years before Nuremberg, 
George Washington Williams, an African-American minister, 
lawyer, and historian, called for an international commission 
to investigate ``crimes against humanity'' in the Congo, which 
was then ruled by Belgium's King Leopold II.
    Under Leopold's iron fist, Congo's population was reduced 
by half, with up to 10 million people losing their lives. In a 
letter to the U.S. Secretary of State, Mr. Williams decried the 
``crimes against humanity'' perpetrated by King Leopold's 
regime. Those who are interested in this touching story should 
read King Leopold's Ghost, which is a great book that I 
recommend.
    Over 50 years later, in the aftermath of World War II, the 
United States led the first prosecutions for crimes against 
humanity in the Nuremberg trials. The promise of Nuremberg is 
that the perpetrators of mass atrocities will be held 
accountable for their actions.
    As we have in previous hearings, I am going to preface this 
hearing with a short video to provide some context for our 
discussion on accountability for crimes against humanity and 
historical U.S. support for holding perpetrators of these 
crimes accountable.
    [Whereupon, a video was shown and the text follows:]
    ``From 1993-1945, the Nazi regime killed approximately 6 
million European Jews. Over 250,000 Roma were murdered. At 
least 200,000 mentally or physically disabled individuals were 
`euthanized.'
    Under U.S. leadership, the Allies established war crimes 
tribunals to prosecute the Nazi perpetrators. Crimes against 
humanity were first defined in the Nuremberg Charter in 1945.
    Sixteen men were found guilty of crimes against humanity in 
the Nuremberg trials, including Hermann Goring, commander of 
the Luftwaffe and the highest-ranking official to order the 
`Final Solution.'
    Since then, the United States has supported efforts to 
prosecute the perpetrators of crimes against humanity, 
including Nazi war criminals who had escaped accountability.
    In 1961, Adolf Eichmann, the so-called `architect of the 
Holocaust,' was convicted in Israel for committing crimes 
against humanity. Michael Musmanno, a U.S. Naval officer and 
judge at the Nuremberg trials, was a key prosecution witness.
    In 1987, Klaus Barbie, the `Butcher of Lyon,' was convicted 
in France for crimes against humanity he committed while 
heading the Gestapo in Lyon.
    With U.S. support, the International Criminal Tribunal for 
the former Yugoslavia has convicted perpetrators of crimes 
against humanity.
    With U.S. support, the International Criminal Tribunal for 
Rwanda has convicted participants in the Rwandan genocide for 
crimes against humanity.
    With U.S. support, the Special Court for Sierra Leone is 
prosecuting Charles Taylor, the former president of Liberia for 
crimes against humanity, including murder, rape, sexual 
slavery, mutilating and beating, and enslavement.
    Three decades after Cambodia's `Killing Fields,' the first 
trials of Khmer Rouge perpetrators for crimes against humanity 
are scheduled to begin later this year.
    We have come a long way since Nuremberg, but we must do 
more at home and abroad to fulfill our responsibility to 
protect innocent civilians from crimes against humanity.
    In Darfur, civilians continue to be attacked, murdered, 
raped and forcibly displaced.
    The perpetrators of these crimes against humanity must be 
held accountable.''
    Senator Durbin. Crimes against humanity are acts of murder, 
enslavement, torture, rape, extermination, ethnic cleansing, or 
arbitrary detention committed as part of a widespread and 
systematic attack directed against a civilian population. With 
far too few exceptions, we have failed to prevent and stop 
these crimes.
    The promise of Nuremberg remains unfulfilled. We have seen 
this most clearly in Darfur in western Sudan. In this region of 
6 million people, hundreds of thousands have been killed and as 
many as 2.5 million have been driven from their homes. There is 
much that must be done to end this carnage in Darfur. Part of 
the solution is arresting and prosecuting the perpetrators. 
Otherwise they will continue to act with impunity and victims 
will feel they have no recourse but to resort to violence 
themselves.
    For several years, both Democrats and Republicans have 
criticized the Bush administration for failing to stop the 
genocide in Darfur, and I am sure our witnesses today will urge 
the administration to do more. But we should give credit where 
it is due, and I especially want to commend President Bush for 
supporting efforts to prosecute the perpetrators of crimes 
against humanity in Darfur. I have had several personal 
conversations with President Bush about this issue and I know 
that he really feels in his heart, as many of us do, that we 
have a special obligation in this situation.
    Let me be frank. The International Criminal Court is still 
a source of controversy on Capitol Hill, but the administration 
and their allies have set aside their concerns because of the 
humanitarian crisis in Darfur, and they should be commended for 
doing so.
    Recently, the Chief Prosecutor of the International 
Criminal Court, Luis Moreno-Ocampo, reported to the U.N. 
Security Council that massive atrocities are ongoing and that 
``the entire Darfur region is a crime scene.'' In the meantime, 
the Sudanese Government has put Ahmad Harun, who was indicted 
by the court for committing crimes against humanity, in a high-
ranking position where he can continue to threaten victims of 
the violence in Darfur and humanitarian workers. That is an 
outrage.
    Following Mr. Moreno-Ocampo's most recent report to the 
Security Council, Zalmay Khalilzad, the U.S. Ambassador to the 
U.N., said that the U.S. Government ``strongly believes that 
those responsible for the acts of genocide, war crimes, and 
crimes against humanity committed in Darfur must be held 
accountable and be brought to justice.'' The administration is 
right. We owe it to the victims in Darfur to ensure that those 
who have perpetrated these horrific crimes are held 
accountable.
    But it is not only Darfur that is a safe haven for 
perpetrators of crimes against humanity. Sadly, it is also our 
own country. This subcommittee's first bill, which became law 
in December of 2007, closed a loophole in U.S. law that made 
our country a safe haven for perpetrators of genocide.
    But despite longstanding U.S. support for prosecution of 
crimes against humanity perpetrated in World War II, Rwanda, 
the former Yugoslavia, and Sierra Leone, among other places, 
there is no U.S. law prohibiting crimes against humanity. As a 
result, the U.S. Government is unable to prosecute perpetrators 
of crimes against humanity found in our own country. In 
contrast, other grave human rights violations, including 
genocide and torture, are crimes under U.S. law.
    This loophole has real consequences. During our recent 
hearing on ``Rape as a Weapon of War,'' we discussed the fact 
that if a foreign warlord who engaged in mass rape came to the 
United States, he would be beyond the reach of our law.
    During our oversight hearing on the U.S. Government's 
enforcement of human rights laws, we learned about the case of 
Marko Boskic, who allegedly participated in the Srebenica 
massacre in the Bosnian conflict and still found safe haven in 
Massachusetts. Because of the gap in our laws, Boskic was 
charged with visa fraud rather than crimes against humanity. 
Upon learning this, Emina Hidic, whose two brothers were among 
the estimated 7,000 men and boys killed in Srebenica, said that 
``[t]hey should condemn him for the crime.''
    By signaling to perpetrators of genocide that they will not 
find a safe haven in the United States, the Genocide 
Accountability Act moved us a little closer to fulfilling our 
pledge of ``never again.'' We should take the next step and 
make sure that those who commit crimes against humanity cannot 
escape accountability in America, but we must go further and 
ensure the perpetrators of crimes against humanity cannot 
escape accountability anywhere in the world. Only then will the 
promise of Nuremberg be fulfilled.
    I am honored that Senator Specter has joined us today, and 
I would invite him, if he would like to make an opening comment 
at this time, to do so.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Well, thank you, Mr. Chairman. Thank you 
for convening this important hearing for the Subcommittee on 
Human Rights and the Law.
    I had not planned to be in attendance, but the Ranking 
Member of the subcommittee could not be here, so I wanted to 
come and indicate my view of the importance of this hearing.
    Regrettably, Senators are very busy. The absence of 
Senators here today does not indicate a lack of very deep 
concern on the issue, but there are just many other meetings, 
subcommittee hearings, and full committee hearings in process 
at this time.
    This issue was one of enormous importance. All you have to 
do is talk about the 2.45 million people being displaced and 
450,000 people killed, and the atrocities are just 
overwhelming. The regrettable fact of life is, it has become a 
way around the world, and perhaps especially in Africa at this 
time. It is hard to view the scene in Africa without seeing 
some ruthless dictator, some ruthless political leader using 
the most horrific tactics to gain power. Genocide, regrettably, 
has become a common practice.
    I visited Tanzania in 2002 and have participated, as has 
the Chairman, Senator Durbin, on many, many efforts. There is a 
lot of concern in the Congress and there is a lot of concern on 
the American people. As we all know, there was a large joint 
A.U./.U.N. task force that was supposed to be developed, 26,000 
peacekeepers to go to Darfur, but only about a third of them 
are there and it took a very, very long time to get there. My 
sense is that we have to get a lot tougher about it through the 
International War Crimes Tribunal. That is something that these 
people will pay attention to.
    In 2002, 6 years ago, I visited the International War 
Crimes Tribunal in Tanzania. There is a man in jail there who 
was convicted of genocide, the first head of state, a man named 
Jean Kambanda, who is serving a life sentence for genocide. 
That is what we really need to do, we really need to marshall 
our forces. It is a relatively recent development in 
international law to hold people like this accountable for 
crimes against humanity, a relatively recent War Crimes 
Tribunal in Yugoslavia.
    The United States has been in the forefront, with help from 
the FBI, the CIA, and the investigative agencies and funding. 
So, I thank the witnesses for coming today. I regret that I 
cannot stay too long. But this is a very, very important issue. 
You see a lot of people behind us? They are the staffers, the 
people who do all the work, write the memos, make sure that the 
Senators know what you said so that there can be appropriate 
follow-through.
    Thank you, Mr. Chairman.
    Senator Durbin. Thank you, Senator Specter. I appreciate 
your being here.
    We are going to turn to our witnesses now. Unfortunately, 
one of our witnesses, Mia Farrow, had last-minute scheduling 
difficulties and could not attend. But we are really honored to 
have four excellent witnesses here today.
    Let me ask if the witnesses would please stand and raise 
their right hands to be sworn.
    [Whereupon, the witnesses were duly sworn.]
    Senator Durbin. Let the record reflect that the witnesses 
answered in the affirmative.
    Our first witness, Daoud Hari, is the author of a book 
which I was given yesterday. I am going to promote your book 
here. It's entitled, The Translator: A Tribesman's Memoir of 
Darfur. This is an incredible book. It tells the story of Mr. 
Hari's life in Darfur, and of his travels and struggles. I'm 
half-way through it, and I promise you I will finish it. I 
commend you, as I said to you personally before, for some of 
the beautiful images that you create in a book about a very 
terrifying and troubling issue in your home country of Sudan 
and Darfur.
    I believe that you have extraordinary skills and I hope 
that those who feel as intensely about the situation as many of 
us do will read your words.
    Mr. Hari was born in the Darfur region of Sudan. After 
escaping an attack on his village in 2003, he entered the 
refugee camps in Chad and began serving as translator for major 
news organizations, including the New York Times, NBC, and BBC.
    Mr. Hari was captured in Darfur while working with Paul 
Salopek, a Pulitzer prize-winning journalist at the Chicago 
Tribune and a friend of mine. I didn't know Mr. Hari at the 
time, but the Chicago Tribune called and asked if I would try 
to get Mr. Salopek out of jail, so we tried to get you all out 
of jail, and eventually we did after more than 30 days of 
imprisonment. That detention was totally unnecessary, and 
thankfully all of them were released without serious injury or 
any other retribution.
    Following the release, Mr. Hari became the third of 
reportedly only five Darfuris who have been granted refuge in 
the United States since this crisis began. We talk about 2.5 
million displaced and hundreds of thousands killed in this 
genocide, but we have reportedly accepted only five refugees in 
the United States. Mr. Hari now lives in the Baltimore area and 
advocates for an end to the conflict in Darfur.
    Mr. Hari, this issue is personal for you in a way that most 
of us can't even begin to understand, but I thank you for your 
courage and for sharing your story, and I look forward to your 
testimony.
    Your entire statement will be made part of the record and I 
invite you to add at this point anything you would like in the 
time allotted. Please proceed.

STATEMENT OF DAOUD HARI, AUTHOR, THE TRANSLATOR: A TRIBESMAN'S 
             MEMOIR OF DARFUR, BALTIMORE, MARYLAND

    Mr. Hari. Thank you, Chairman Durbin. Thank you to the 
honorable Members of Congress. Thanks very much for your 
working to end the genocide in Darfur.
    After 5 years since the crisis began in Darfur, I will have 
to thank you again. You let me out from the prison with Paul 
Salopek after 35 days in prison in Sudan, where, as you said, 
with the dictator, it is very hard to be inside the prison in--
and how we have been treated for 35 days.
    As some of you know, I am Daoud Hari from north Darfur. I 
was born--my age is 35 years old and I've been going to a 
school in Sudan in--and--Darfur. I left Sudan and came back in 
2003 and what I saw happening to my people in Darfur, how the 
people were treating the government troops and how people were 
killed in Darfur, I stand up to working with the journalists to 
be able to share stories for the journalists. Since I was 
working as a translator in Darfur, in 2004 I was working with 
the U.S. Department--what you call the CID, which was 
investigating about the genocide in Darfur. They told us the 
estimated killing in Darfur--400,000 people have been killed in 
Darfur. This was in 2004.
    After they left, I tried working with the journalist Paul 
Salopek with the Chicago Tribune, and in the course--new time--
U.K., and when I was working with the U.K. journalist who'd 
been in the place, there were 81 persons who had been killed 3 
days ago. When we go over there and we saw the bodies, some of 
them didn't have even the heads. This is mostly the people who 
have been captured by the--the government in the bush. After 
that, they killed them through the bushes. So we saw the 
bodies. Some of them, mostly 10 years or maybe less than 10 
years that people were dying over there.
    I saw--when I worked with him, we crossed Darfur and we met 
two soldiers who had been captured, child soldiers, 13 years. 
They'd been captured by some of the villagers, the defenders 
who tried to kill them. We interviewed them and I saw one of 
them. He'd been shot by a bullet when he had been beaten very 
hard, and I was able to talk to him and--witness. He showed me 
some money which was the government's gift to him to come to 
attack these people.
    The areas of the village they were attacking, they were 
neighborhoods. They would go into a school with children in the 
school together and they have their animals and camels 
together. After that--began to tell them--Arabs--and they have 
to be--to defend themselves before these people come in to kill 
any of your people. They give them some money and they're 
training them for 3 days. After 3 days, the child who's 13 
years, maybe if it's not able to carry the gun, it's mostly the 
weight of the guns, it's almost more than 5 or 6 kilos. So he 
comes and they were--they told us what is happening, the 
government, how they treat them and how to give them the idea 
to come to attack the neighborhood and their friends.
    After all this, 5 years, when I work in, the people who 
were responsible for those crimes, now they were free. I 
appreciate the U.S. Government and Europe and the international 
law they were asking to be possible for the court 1 day, but we 
believe that--now they were working outside were free and they 
were happy--doing the same--the same crime in Darfur. Just over 
the last week of May, there's more than 300 to 3,000 people who 
have been captured from Darfur.
    Darfur is where living in Khartoum--attacked by the rebels. 
Some of them, they were students in a school in Khartoum and--
just all--they were Darfuris that were being accused by the 
government, being they were helping for the rebels. They never 
saw even the rebels in their life and now they were in the 
prison. The government--them, they give them more than 10 or 15 
years in prison. I would like to say thank you for the United 
States and international law. The laws will be longer for us to 
be coming 1 day, but I will ask and try to ask the 
international community to stop this genocide and to bring 
those responsible before the court as soon as possible.
    Thank you.
    Senator Durbin. Thank you, Mr. Hari. We'll have a few 
questions after the other witnesses have had a chance to speak.
    [The prepared statement of Mr. Hari appears as a submission 
for the record.]
    Senator Durbin. Our second witness, Gayle Smith, is co-
founder of the ENOUGH Project to end genocide and crimes 
against humanity. She's also a Senior Fellow at the Center for 
American Progress.
    Ms. Smith was based in Africa for over 20 years as a 
journalist covering military, economic, and political affairs 
for major news organizations, including BBC, Associated Press, 
Reuters, the Boston Globe, and Financial Times.
    She served as a Special Assistant to the President and 
Senior Director for African Affairs at the National Security 
Council from 1998 to 2001, and as Senior Advisor to the 
Administrator and Chief of Staff of the U.S. Agency for 
International Development from 1994 to 1998.
    Ms. Smith, thank you again for being here today. Please 
proceed with your testimony.

STATEMENT OF GAYLE SMITH, CO-CHAIR, ENOUGH PROJECT, WASHINGTON, 
                               DC

    Ms. Smith. Thank you, Mr. Chairman. Thank you for convening 
this hearing. I've been in government, I've been a reporter, 
I'm now here as an advocate. Like the many people behind me, 
we're really, really appreciative of all you are doing to make 
sure that the United States is on the right side of history 
when it comes to genocide and crimes against humanity.
    I think as your brief film points out, we've made some 
progress. We've seen referrals by the United Nations Security 
Council to the International Criminal Court of the case of 
Darfur, also the Democratic Republic of Congo and Northern 
Uganda.
    Charles Taylor is in custody. There has been an increase in 
the number of emerging democracies in Africa who are turning 
over those indicted for genocide in Rwanda. But I think the 
fact that we are sitting here today as we enter the sixth year 
of the crisis in Darfur is, in large measure, because the 
perpetrators have not been held to account.
    I think we would all agree that there's a need for a 
sustained and robust peace process and a desperate need for a 
viable peacekeeping mission to be deployed to Darfur. But the 
bottom line is accountability. If this Committee can propose 
legislation that would in fact make crimes against humanity a 
violation of U.S. law, I think it would strengthen our ability 
to enforce accountability around the world and strengthen that 
chain that we need that allows the perpetrators no way out.
    Let me just say a couple of things about the reasons why 
this is so important. In the case of Sudan, we have a 
government that is ruthless, but it is also smart and 
calculating. They operate on the basis of their own interests. 
To this date, they have no reason to believe that there will be 
any meaningful costs imposed if they continue to perpetrate 
crimes against humanity against the people of Darfur. Yes, 
there have been indictments, yes, the Security Council last 
week--and importantly, unanimously--demanded that they turn the 
indictees over to the ICC, but they haven't done it and there 
is no cost.
    We've seen with this regime that the only time it acts is 
when it perceives that there are real costs, whether it's 
cooperating with the United States in the war on terror, 
whether it was trying to get out from under multilateral U.N. 
sanctions for their complicity in an attempt to assassinate the 
president of Egypt, or in the case of the peace agreement in 
southern Sudan. They knew there was a cost and they knew there 
was no way out.
    Right now they believe, and they have evidence to believe, 
that they can get away with it. Their victims have the evidence 
to believe that the international community has abandoned them. 
So by strengthening that chain of accountability by amending 
our laws, I think we send a signal and inform the calculations 
of the perpetrators not just in Darfur, but elsewhere.
    Second, obviously it's the right thing to do. At a time 
when the United States needs to, as it has throughout our 
history, stand-up and champion the right thing to do, I think 
also it is important that we send the signal as American 
citizens that we see these crimes not just as abuses of their 
victims, but as violations of our common humanity.
    Third, it is in our national interests to do this and to do 
more across the board on accountability, not least because in 
so doing we strengthen the moral foundations from which we 
lead, but also, quite frankly, for reasons of security. We 
cannot afford the violence and instability that we see when 
these crimes occur.
    Look at Sudan today. It is the largest country in Africa. 
It is bleeding into Chad and the Central African Republic. The 
future of generations has been destroyed, and the ability of 
that country over time to be a stable anchor in the sub-region 
has been severely compromised.
    Finally, by making crimes against humanity a violation of 
U.S. law we uphold the rule of law, and that, Mr. Chairman, is, 
quite frankly, the sledgehammer with which we can attack the 
cycle of impunity. I lived in Sudan for many years. It is a 
country I was just talking to Daoud about that is heartbreaking 
for many reasons, but perhaps none more than the fact that it 
is one of the most friendly, generous peoples I have ever lived 
with, and that is being fundamentally compromised because the 
rule of law has been abused, has been distorted, has been 
disobeyed. The government of Sudan has flouted the will of the 
international community, the Security Council, the ICC, the 
government of the United States, and others.
    I honestly believe if we take this small but very 
significant step we can remind them that we will, as the United 
States, hold them accountable and further strengthen that chain 
of accountability that we need to make sure that we're not 
sitting here again a year from now testifying about the crisis 
in Darfur. Thank you very much.
    Senator Durbin. Thank you, Ms. Smith.
    [The prepared statement of Ms. Smith appears as a 
submission for the record.]
    Senator Durbin. Our next witness is Diane Orentlicher, who 
is Professor of Law at the Washington College of Law, American 
University. She's also co-director of the law school's Center 
for Human Rights and Humanitarian Law, and was the founding 
director of its War Crimes Research Office, which she headed up 
from 1995 through 2004. Professor Orentlicher is currently on 
leave from the Washington College of Law and serving as Special 
Counsel to the Open Society Justice Initiative.
    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.
    Professor Orentlicher received a B.A. from Yale University 
and her J.D. from Columbia Law School. She testified at our 
first hearing of this subcommittee on ``Genocide and the Rule 
of Law,'' and she is back again and we appreciate that very 
much.
    Please proceed with your testimony.

 STATEMENT OF DIANE ORENTLICHER, PROFESSOR, WASHINGTON COLLEGE 
          OF LAW, AMERICAN UNIVERSITY, WASHINGTON, DC

    Ms. Orentlicher. Thank you, Mr. Chairman. It's an honor to 
provide testimony before this distinguished body again. I join 
Gayle Smith and others who have noted the extraordinary 
leadership your subcommittee has already provided in the one 
and a half years since its creation. I was, again with others, 
especially heartened by your leadership and success in 
introducing, and then shepherding through to enactment, the 
Genocide Accountability Act of 2007.
    Its entry into law was truly a landmark, and it 
significantly shrank the space for impunity for those who 
commit some of the worst crimes known to man. But as you noted 
in your opening remarks, it does not fully discharge our 
country's historic commitment to ensure that there is no safe 
haven for those who commit crimes of such savagery and 
staggering scope as to violate the conscience of humanity. I 
mean, in particular, that it's not yet a crime, as you noted, 
to commit crimes against humanity under Federal law.
    I think that Americans would be both surprised and 
disturbed if they understood this and understood what it meant. 
I say this for two reasons in particular. One, as you already 
noted, it was the United States above all that ensured that 
crimes against humanity were punishable at Nuremberg. I do not 
think, without U.S. leadership, we would have seen crimes 
against humanity become an enforceable crime.
    As your opening video and your opening remarks noted, the 
United States has, since Nuremburg, provided indispensable 
leadership in ensuring prosecution of crimes against humanity 
by various international tribunals, as well as by other 
countries we have supported. So it's quite remarkable that we 
of all countries don't have a law on our books making it 
possible to prosecute this crime when perpetrators show up in 
our own territory.
    The second reason I think Americans would be concerned has 
to do with the nature of crimes against humanity. Here, what I 
have in mind is that I believe many people assume--and 
unfortunately incorrectly--that Federal law already 
criminalizes mass episodes of extermination, and that's 
because, as you know, Federal law already criminalizes 
genocide.
    There's a widespread belief, and it is not accurate, that 
genocide is a crime that encompasses the worst episodes of mass 
atrocities that we know. And yet that's not true.
    I want to give just two examples to illustrate why, as 
important as it is, our legislation on genocide doesn't do all 
that our law needs to do. First of all, when we ask people to 
think about the worst atrocities that they can think of that 
happened in recent decades, everybody's short list includes the 
notorious atrocities of the Khmer Rouge in the 1970's in 
Cambodia. Estimates vary, but at least a fifth of the 
population of the country were wiped out during that period of 
staggering, mindless, unspeakable atrocities.
    There is now a court that's been established jointly 
between the government of Cambodia and the United Nations to 
prosecute surviving leaders of the Khmer Rouge. When the 
prosecutors handed down their first indictments, against 
surviving leaders of the Khmer Rouge, they didn't include 
genocide in their charges. That could change as further 
indictments are presented, but the point will not change: When 
they issued their first, historic indictments, prosecutors were 
not confident that they could make out a case of genocide, even 
for this infamous episode of mass atrocity
    The principal reason it's so difficult to make out a charge 
of genocide has to do with the very narrow and rigorous legal 
requirement of a specific intent on the part of a perpetrator 
to destroy a particular community as such.
    And again, if I could illustrate how challenging and 
daunting it is for a prosecutor to make out this case, let me 
give you one more example. In 2006, the International Criminal 
Tribunal for the former Yugoslavia found one of the most senior 
leaders of Bosnian Serbs responsible personally for the killing 
of thousands of Muslims and Croats during the period of the 
worst carnage in Bosnia in the 1990's. The Trial Chamber even 
found that the crimes deliberately targeted Muslims and Croats. 
Despite these findings, the court was unable to find that the 
defendant had genocidal intent. There was, however, a charge 
that the court believed fit this crime, and that was the charge 
of crimes against humanity.
    So, again, the point is clear. If we want to be in a 
position to deter those who commit the most atrocious crimes, 
we must make it a crime under Federal law to commit crimes 
against humanity.
    Thank you, Mr. Chairman.
    Senator Durbin. Thank you, Professor Orentlicher.
    [The prepared statement of Ms. Orentlicher appears as a 
submission for the record.]
    Senator Durbin. Our fourth witness today is Joey Cheek, co-
founder and president of Team Darfur, an international 
coalition of athletes committed to raising awareness about, and 
bringing and end to, this crisis. You're going to remember his 
name when I tell you a little bit more about him.
    Mr. Cheek represented the United States as a member of the 
men's Speed Skating Team at the 2006 Olympics, and after 
winning gold in the 500-meter race and silver in the 1,000-
meter race, he donated the $40,000 award to Right to Play, an 
international aid organization focused on bringing the benefits 
of sport and play to the most disadvantaged children in the 
world.
    Time Magazine named Mr. Cheek one of their ``100 People Who 
Shape Our World.'' He's currently a student at Princeton 
University. Mr. Cheek, I thank you for being with us today and 
invite you to testify.

STATEMENT OF JOEY CHEEK, CO-FOUNDER AND PRESIDENT, TEAM DARFUR, 
                   GREENSBORO, NORTH CAROLINA

    Mr. Cheek. Thank you. Chairman Durbin, Ranking Member 
Coburn, and honorable members of the committee, it is my 
pleasure and an honor to be asked to submit a brief testimony 
on such a weighty issue as human rights and accountability. I'm 
certainly not an expert on the legal intricacies of 
international accountability, I'm simply a student and an 
athlete. But in those positions I've had experiences that I 
feel are unique.
    In 2006, after 17 years of preparation, I became the 
Olympic champion in my chosen sport of speed skating. After 
spending years traveling around the world as an athlete 
representing the United States, my eyes opened to a tragedy 
that was occurring in a part of the world that I felt was 
vastly under-reported in my home country. That tragedy was the 
mass killings occurring in Darfur, Sudan.
    For more than 2 years now I have continued to try and raise 
awareness about the horrible atrocities faced by so many 
innocents in Darfur. I founded a coalition, Team Darfur, to 
bring together like-minded athletes to bring awareness to the 
abuses that are occurring. I have spoken in front of groups of 
thousands and I've traveled to Chad to visit first-hand with 
refugees driven from their homes in Darfur.
    Like all of us here today, I'm appalled by the suffering 
that these innocents have gone through. The numbers of people 
killed in Darfur is as massive as the worst of natural 
disasters. However, unlike the loss of life and home that occur 
when natural disasters strike, these vicious crimes are the 
result of conscious and willful effort by a group of people.
    Over the last five years in the deserts of Darfur, almost 
every day men make the decision to aim a gun at the head of an 
innocent and pull the trigger. They make the decision when they 
storm into a village to rape women over and over again, and 
then they make the decision to burn that village to the ground 
and drive every living thing out into the desert to starve to 
death.
    In Khartoum, the capital of Sudan, decisions are being made 
every day that are every bit as vile as those made in the 
field. Officials of the government empower these savage acts on 
men, women and children. They arm these militias. As Daoud 
would say, they pay these militiamen to slaughter innocents and 
they use military aircraft to bomb civilians. Then they make 
the decision that they can destroy a group of people simply 
because they do not want them around.
    When I first became aware of Darfur, my intention was only 
to try and raise a bit of awareness, and perhaps raise a little 
bit of money for relief. I felt that once people knew what was 
happening throughout the world in this region, that this crisis 
would somehow magically stop. What I've come to realize is that 
it takes much more than awareness. In the face of crimes such 
as these, people must be willing to fight back. We must be 
willing to fight back. It doesn't always mean picking up a gun 
and charging into the fray, but using every available tool at 
your disposal to bring these murders and rapists to justice.
    The situation in Darfur was complex and has become 
increasingly so, but complexity cannot conceal the fact that 
throughout this conflict men have consistently made the 
decision to indiscriminately take the lives of huge numbers of 
innocent people. For that decision there must be 
accountability. There must be the knowledge throughout the 
world that, if you willfully destroy the lives and homes of 
innocents, you will be held responsible.
    I hope the Senate will followup on the June 3rd letter to 
Secretary Rice to ensure that she directs the State Department 
to take advantage of the few remaining days of the U.S. 
presidency and the U.N. Security Council to advocate for the 
expanded U.N. sanctions against the Sudanese regime. The U.S. 
has, of course, been a leader in using sanctions as a method of 
accountability for the perpetrators of this genocide, but we 
need to ask the rest of the international community to join us 
in implementing these important measures.
    After hearing the stories of refugees from Darfur, people 
have had to flee their lives because of decisions these 
individuals made to rape and murder. I know there are more than 
the few people now listed on the Treasury Department's list who 
are responsible for these crimes. I hope the Senate will 
request that the administration expand the list of specially 
designated nationals to include all parties responsible for the 
atrocities, most particularly those at the highest levels of 
the Sudanese government.
    Respected individuals from around the world are working 
tirelessly to ensure that perpetrators of the crime in Darfur 
are held accountable. What I and other athletes who make up 
Team Darfur hope to do is to call upon the international 
community to observe an Olympic truce period for Darfur.
    The Olympic truce originated in ancient Greece, but in 
recent history world leaders have invoked the truce as an 
opportunity for the international community to expand 
exceptional effort, as athletes do when they're striving for 
medals, to create and promote peace.
    An Olympic truce for Darfur would only be possible with 
increased deployment of the U.N. peacekeeping force and a 
rejuvenated peace process that has the full support of 
permanent members of the U.N. Security Council.
    If this Olympic truce period is marked by an increased 
effort by the international community to secure peace for the 
people of Darfur, the measures of accountability that this 
committee hopes to pursue, I believe, can be more possible and 
more effective.
    I was raised to believe that we live in a Nation that 
values justice. I've seen that belief validated time and time 
again, and I'm proud of the work that we as a Nation have done 
to help the innocents of Darfur. As we all know, there's much 
more that we need to do. We must continue to lead the 
international community bring justice to the criminals that 
continue to perpetrate this violence. Doing so will not only 
help the hundreds of thousands of innocent people still living 
in Darfur, but will move one step closer to a place where men 
will know that they face consequences for committing these 
crimes against humanity.
    Thank you.
    Senator Durbin. Thank you very much, Mr. Cheek.
    [The prepared statement of Mr. Cheek appears as a 
submission for the record.]
    Senator Durbin. Without objection, we will enter into the 
record a statement from the Chairman of the Judiciary 
Committee, Senator Patrick Leahy.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Senator Durbin. And I might just say, as I have before, he 
graciously allowed the creation of this subcommittee, the first 
subcommittee to our knowledge in the history of Congress, 
dedicated to human rights and the law.
    We also will enter statements from organizations and 
individuals, including the Armenian Assembly of America, the 
Armenian National Committee of America, the Center for Justice 
and Accountability, Human Rights First, and Human Rights Watch.
    Without objection, they will be entered into the record.
    [The prepared statements will appear as a submission for 
the record.]
    Senator Durbin. Mr. Hari, I'm going to start my questioning 
by asking you what may be an obvious question. As I spoke to 
President Bush in several meetings about the peacekeeping force 
and the need for us to bring in some outsiders to try to bring 
peace to your country, I told him that it was my feeling that 
Khartoum would resist every step of the way, would find as many 
obstacles as possible to stop the United Nations, or the 
African Union, or any other force from actually coming in on 
the ground and supervising or trying to take control of this 
vast territory which, as you say in your book, is as large as 
France or Texas.
    Do you have the same impression from your experience in 
watching the government of Khartoum? Is there any hope there 
that they will open the country to any kind of international 
participation?
    Mr. Hari. Thank you, Senator. I think if there's enough 
pressure from the international community to the Sudanese 
government, they will have to accept it. Since I came to the 
United States, the Sudanese government sometimes will say now 
we will extend--peacekeepers from the Security Council, 
sometimes they were denied because they were playing a game 
with the international community because they were being 
governed by the Chinese--in the Security Council. But if the 
United States is working more with the Chinese Government and 
the Arab League, they have to put pressure more for the 
government of Sudan and they have to accept it.
    I know that what is happening in Darfur, the government of 
Sudan knew that if there's any international peacekeeper in 
Darfur, especially from Europe and the United States and the 
other countries have--for this, there's too many responsibility 
from their government people who had done the crimes. So it's 
maybe holding--will be going to international court one day, so 
that's why they were delaying to accept some and they did--some 
time. The African peacekeeper--we have in Darfur 7,000--as you 
know, Senator, I work with them three times in African Union. 
They aren't able to defend themselves. How come, 7,000, they 
have to keep peace for the--
    Senator Durbin. Yes. Now, you have seen the refugee camps 
in Chad, you have seen what's happened to the Darfurians who 
have been forced out of their country. Can you describe the 
living conditions of those who have been forced to leave?
    Mr. Hari. I, myself, lived for 13--in Chad for 2-years 
where I was staying--I would be visiting. Our living in camps 
in eastern Chad is very hard. Sometimes--Goz Bedi when I was 
visiting Goz Bedi with journalists because there has been 
attacks by the Janjaweed who were coming from Sudan. These 
special camps called Goz Bedi is inside Chad from the Darfur 
border more than 180 kilometers, so all this where the--were 
crossing and they came to attack this camp. Since I was 
visiting there--
    Senator Durbin. Let me make sure it's clear. You said 180 
kilometers, which would be about 108, 110 miles. The Janjaweed 
would come from Sudan and attack the refugees in the camps in 
Chad. Is that what you're saying?
    Mr. Hari. Yes. Yes, that's exactly--about 115 or 110 to 15 
miles from the Sudan. They were crossing to inside Chad to 
attack in the camp. Sometimes there was a U.S. Ambassador 
visiting there. People would be very--the children were very 
afraid. I was talking to my people. It was just only a few days 
maybe from Goz Bedi, you can cross to Central Africa and they 
were talking about, what can we should do? We have to go to 
Central Africa, for example, from here to be safe.
    I know there are Central African--the East Central Africa 
has also been attacked by the Janjaweeds, and were even--by the 
government of Sudan and they were coming in Chad. So we were 
wondering ourselves when we were coming out from our lands and 
we don't have peace in Chad because there is no security. So 
there's no aid workers able to work in the refugees camp 
because there's no security.
    Senator Durbin. I'm going to ask one last question before I 
give Senator Whitehouse an opportunity. In your book, you 
describe the attacks. It seemed to me they came from so many 
different levels: the planes overhead dropping bombs--and you 
described the shrapnel as being pieces of old appliances that 
had been chewed up and put into these bomb casings that explode 
and kill people--the helicopters, the Janjaweed on horseback 
and on camels.
    But in your opening here you talked about the child 
soldiers who were involved in this and that was the subject of 
one of our earlier hearings. I might just say for the record, 
I'm disappointed at this point that we don't have the support 
of the administration on our Child Soldiers Accountability Act, 
but we are working to try to achieve that before the end of the 
year.
    Tell us about these child soldiers that you've seen who 
were part of this devastation and genocide in Darfur. Are they 
children who were stolen away from villages? Are they receiving 
money, are they receiving drugs, as we've heard in other parts 
of Africa? Tell me, if you can, the conditions of these child 
soldiers.
    Mr. Hari. As I mentioned in my book, Senator, when I was 
captured--by--by the government, which was be paid by the 
government, and those others my tribe also, speaking the same 
language.
    Senator Durbin. Zaghawa.
    Mr. Hari. Yes, Zaghawa. Two children, me, and my driver 
that was taking us, they have orders already from their 
commander they have to shoot us inside the van. When we are--
they were smoking a cigarette, they have a--and they were less 
than 14 years old, and both of them know me and the families.
    Senator Durbin. They knew you?
    Mr. Hari. Yeah, they knew me. It--my family, they knew me, 
who I am. They were discussed over there, and they decided they 
don't wanted to shoot me. I even asked them, don't shoot me 
if--if you don't tie my eyes--if you do not tie our eyes, 
because I don't want to see you--you are shooting me, because, 
yes, I came yesterday from your family, I saw your mothers or 
your sisters in the refugee camps. One of them, they said, oh, 
we decided we don't want to shoot you, Daoud, because we know 
you and we know your family, and you know us. So if the 
commander want to kill you, he'll have to kill you himself. But 
we used to kill the prisoners when a prisoner was captured by 
the rebels. Maybe even people we don't know we can shoot, but 
we can't shoot the person we know.
    I said, OK, even you are very children. You're a child, 
it's 14 years, you don't know anything about how to shoot the--
why you have to shoot him? And they said they have orders from 
their commanders. For example, these people were the enemy for 
them and they don't know--for example, Senator, they don't know 
this children, what is the international law supposed to be the 
world's prisoners be killed even if that's who the Janjaweed or 
the government soldiers. But if they left with those children 
they were--may very easily killed them. They were very easy. 
They were telling me this. You get in this area one cigarette 
to smoke is more hard than to shoot someone in this land. So we 
can--we can do that's how we are living in Darfur.
    Senator Durbin. Thank you very much.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman. Thank you for 
hosting this hearing. The work of the subcommittee, I think, 
has been very valuable. I know it was your personal desire and 
wish that it be established, and your personal energy that saw 
to its establishment as the first such subcommittee in the 
Senate. Once again, I think this hearing has proven how wise 
that course of action was.
    I'm interested in, Professor, particularly how a criminal 
statute, making it an American crime to commit a crime against 
humanity in a foreign country, would work procedurally with 
respect to the trial itself, with respect to efforts to seize 
the defendant, either before trial or before he or she were 
convicted?
    Ms. Orentlicher. First of all, the basic assumption of my 
testimony is that jurisdiction would be established only if the 
defendant were in the United States. We would have to have 
physical custody over that person. Unfortunately, it's not at 
all uncommon for perpetrators of very serious atrocities to 
elude detection when they come into the United States. An 
organization that works on this issue estimates that there are 
thousands of perpetrators of very serious atrocities in the 
United States. Some of them have come to a kind of justice when 
victims of their abuses run into them in the United States and 
are able to file civil actions against the perpetrators. But 
even when those actions are successful, that is, even when a 
judgment is rendered of civil responsibility for atrocities 
including crimes against humanity, the perpetrators can remain 
in the United States and not fear prosecution for those same 
crimes. So, that's one part of it. We would have to--
    Senator Whitehouse. Would you be able to procure an 
indictment before somebody was in the country or at the very 
beginning of jurisdiction? Could you not even indict while 
somebody's abroad?
    Ms. Orentlicher. Normally jurisdiction would be established 
when you find someone in the country, but I think it would be a 
mistake to--
    Senator Whitehouse. Indictment would have to follow. You 
wouldn't be able to indict them.
    Ms. Orentlicher. Well, what I was going to say is I would 
think it's desirable to frame the legislation in a way that 
allows the possibility of seeking extradition under 
extraordinary circumstances. Perhaps I should say, I don't 
assume that the United States should be a forum of first resort 
for prosecution of individuals who commit atrocities elsewhere. 
The United States has long cooperated to ensure prosecution of 
such crimesin other countries and should continue to do that. 
But there will be circumstances when this is the only place 
where someone who has committed atrocities that are beyond the 
pale can be seriously prosecuted.
    An example is a helpful founation for my answer to your 
second question: In 1997, Pol Pot, the notorious leader of the 
Khmer Rouge, was suddenly available for prosecution when his 
own forces rebelled against him. The U.S. Government wanted to 
bring him to justice and discovered that our own law didn't 
make it possible to prosecute him here. The administration at 
that time tried desperately to find another government that 
would prosecute Pol Pot and was unable to do so before he died 
a year later.
    In a circumstance like that, the United States should be 
able to seek Pol Pot's extradition to the United States and 
prosecute him here. Those are exceptional circumstances, but I 
think it desirable that U.S. law provide for that type of 
possibility.
    Senator Whitehouse. Without that law presently, if it 
becomes known to the U.S. Government that someone who has 
participated in crimes against humanity is passing through a 
United States airport or one way or another entering the 
territorial jurisdiction of the United States, is there 
anything that can be done other than to refuse entry?
    Ms. Orentlicher. We can't prosecute that person for crimes 
against humanity. We might be able to prosecute them depending 
on the nature of their offenses for torture. We have a statute 
that enables us to prosecute torture wherever it was committed. 
That particular statute has been on the books now for about 14 
years, and there has so far been only one prosecution under 
that statute.
    But that would not begin to cover all of the kinds of 
crimes against humanity that are committed, such as enslavement 
and so forth, and generally would not capture the enormity of 
the crime. So, yes, we could deny them entry, we could try to 
remove people, but we don't have, even in our immigration laws, 
crimes against humanity as such as a basis for removal.
    Senator Whitehouse. And would the idea be that the United 
States would exert its diplomatic pressure to try to expand 
this kind of jurisdiction and this kind of statute throughout 
the world so that people who engage in crimes against humanity 
find it increasingly difficult to find shelter in any other 
country?
    Ms. Orentlicher. Well, first of all, quite a few other 
countries do have crimes against humanity in their statutes and 
establish the possibility of exercising jurisdiction over 
perpetrators of crimes against humanity. Who come to their 
country.
    Senator Whitehouse. Any examples of where it's been done?
    Ms. Orentlicher. It's been done in Germany, I believe 
Australia.
    Senator Whitehouse. A question for the record.
    Ms. Orentlicher. I'd be happy to get back to you on that.
    Senator Whitehouse. That's for the record then.
    [The information appears as a submission for the record.]
    Ms. Orentlicher. It's happened in quite a number of 
countries. A lot of countries are now in the process of 
changing their laws so that they can prosecute crimes against 
humanity. The United States has provided quite important 
leadership in helping countries that are recovering from mass 
atrocities to strengthen their own ability to prosecute 
perpetrators, and so the type of leadership you described is 
already happening to some extent. I apologize for repeating 
myself, but what we can't do is prosecute perpetrators here, 
and that's a problem, in part, because often we don't have a 
place we can extradite people to where they can be prosecuted.
    That's for the most obvious reason: when crimes against 
humanity occur almost by definition the country where they 
occurred has descended into a state of wholesale collapse of 
the rule of law. So if it's possible to send perpetrators back 
to the country where they perpetrated their crimes, that would 
be ideal; often, though, it is not possible.
    The United States has helped countries in the former 
Yugoslavia to institute proceedings in a credible fashion, but 
that was possible only some years after the conflict there 
ended and it was possible for shattered judicial systems in the 
region to begin to get back on their feet. So, of course we 
should continue to do that, but we should always be able, when 
that's not possible, to prosecute perpetrators here. I believe 
it's shameful that when we find people who've committed the 
most staggering crimes our imaginations can conjure--and those 
we can't even begin to imagine--we prosecute them for visa 
fraud.
    Senator Whitehouse. Well, I appreciate your testimony very 
much and I look forward to working with you and the Chairman on 
the legislation.
    Thank you.
    Senator Durbin. Thank you, Senator Whitehouse.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman, for holding this 
hearing today. Thanks to the witnesses for testifying before 
this subcommittee on such an important issue.
    I'd like to make some quick comments and then turn to a 
couple of questions.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Over the last century, genocide, ethnic 
cleansing, and crimes against humanity have occurred too 
frequently, in many cases because the will to stop these 
atrocities has been lacking or far too late in coming. Today, 
as we watch the genocide in Darfur continue to unfold, we are 
reminded that even though the international community has made 
great strides in addressing such atrocities through the law, 
there is still a long way to go to ensure that this legal 
framework is adequately developed and robustly implemented.
    I have long believed that the protection of basic human 
rights and accountability for human rights abuses must be a 
cornerstone of American foreign policy. The failure to 
prosecute those guilty of crimes against humanity makes it more 
likely that such crimes will be repeated. Accountability must 
be established in order to overcome long-entrenched cultures of 
impunity, stem the potential for violent retribution, create 
conditions for meaningful reconciliation, and ultimately 
prevent new rounds of atrocities from occurring.
    While we've made some progress in encouraging 
accountability for abuses of human rights, there are loopholes 
within our own legal framework here at home that allow 
individuals to find shelter from prosecution for their 
unspeakable actions.
    Now, in part because my colleagues have already given such 
careful focus to Darfur during this hearing, let me note one 
particular example in which the perpetrators of human rights 
abuses in other nations have found shelter on American soil.
    In 1980, four American church women who had been working 
with refugees in El Salvador were brutally murdered by members 
of the Salvadoran National Guard. In command of these men were 
two Salvadoran generals who, although they bear direct 
responsibility for this atrocity, are currently living in the 
United States. In 2002, the generals were found liable in civil 
lawsuits for acts of torture carried out under their command. 
Yet, despite having been found liable for these terrible 
crimes, they continue to reside freely in Florida.
    Criminal prosecution of these men is hindered by the fact 
that the statute criminalizing acts of torture was not passed 
until 1994, long after these acts were committed. Our 
immigration laws, however, do allow the United States to deport 
these men. Inexplicably, the Department of Homeland Security 
has not initiated deportation, despite repeated appeals from 
Members of Congress.
    It is unacceptable that individuals who are known to be 
responsible for human rights abuses are allowed to find safe 
haven in the United States. I hope this hearing will help us 
find ways to hold these men, and others like them, accountable 
for their actions.
    Professor Orentlicher, is there any doubt in your mind that 
United States law generally permits the prosecution of 
individuals for human rights violations like torture, which is 
prohibited by U.S. law, when those violations are committed by 
others acting under their direct command and control--and if 
there is any doubt, does Congress need to step in and fix this 
problem?
    Ms. Orentlicher. There's no doubt in my mind that the 
torture statute that Congress enacted should be interpreted to 
cover people who exercise effective control over people who 
committed abuses and did not take the reasonable steps 
necessary to prevent or punish those abuses.
    Unfortunately, as you know, there seems to be some doubt on 
the part of the Department of Justice about whether they can 
enforce the torture statute under that doctrine. So all I can 
say is, I commend this subcommittee's leadership in pressing 
the Department of Justice to interpret the statute the way you 
do. If there is continued reluctance to interpret the torture 
statute that way, then I think it would make sense for Congress 
to amend the torture statute to make it explicitly clear that 
command responsibility is a basis for prosecuting torture.
    We all know that it's especially important to send a 
message to those who bear the highest levels of responsibility 
that they will be held to account if abuses occur that they 
were in a position to stop and there should be no doubt about 
our ability to do that.
    Senator Feingold. Well, let me ask you, then, about these 
two Salvadoran generals who were found liable for torture, yet 
are currently living in the U.S. As I'm sure you know, U.S. 
immigration law allows the Secretary of Homeland Security to 
deport someone if they are found to have ``committed, ordered, 
incited, assisted, or otherwise participated in either any act 
of torture or any extrajudicial killing.'' They may also be 
deported if the Secretary of State reasonably determines that 
their presence would have ``adverse foreign policy 
consequences'' and that they were inadmissible due to a crime 
of ``moral turpitude.''
    In November 2007 and again in March 2008, my colleagues, 
Senators Durbin and Coburn, wrote to Secretary Chertoff asking 
him whether he planned to deport these generals. Both times 
they received the response that the Secretary is reviewing the 
facts of the case to determine whether deportation is 
appropriate.
    Given your knowledge of the case and the applicable law, is 
there any reason why it should take 7-months to decide whether 
non-citizens who have been found liable for acts of torture 
should be deported?
    Ms. Orentlicher. All I can say is, it's mind-boggling. If I 
recall correctly, they've been in the United States for almost 
20 years. The U.S. Government has had long enough to figure out 
that these people do not--should not, under any understanding 
of our law, enjoy the privilege of lawful residence in this 
country.
    Senator Feingold. Thank you, Professor.
    Thank you, Mr. Chairman.
    Senator Durbin. Thank you, Senator Feingold.
    Mr. Cheek, I'd like you to explore with us a little bit 
more of this concept of an Olympic truce. You are not calling 
for a boycott of the Olympic Games. Is that true?
    Mr. Cheek. Correct. Obviously having been a participant in 
two Olympics, and really I think my world view having been 
shaped by the Olympic Games, what an incredible experience it 
was for me. I still believe, as idealistic as it may sound, 
that the Olympics can be a great force for promoting peace and 
promoting justice throughout the world.
    What we believe, and there's some historical precedent for 
it over the years, governments have called for a truce during 
the Olympic Games for different regions, either war-torn 
regions, to allow athletes to travel from those regions or 
sometimes I believe--and again, I'd have to check to make 
sure--in 1994 there was a brief peace called in Yugoslavia 
during some of the conflicts there so that children could be 
immunized, and it was led by the IOC and signed off on by many 
members in the U.N.
    What I would love to see happen, and what I think many 
athletes that I've spoken with believe is possible, is that if 
nations of the world, particularly members of--the permanent 
members of the Security Council were to try to enact something 
more than just a symbolic truce, but actually try and restart a 
peace process in which members of some of the rebel groups can 
perhaps be brought back to the table, or hopefully the most 
valuable thing is if there are some sort of concrete goals that 
can be realized, either redeploy UNIMID or deployment of more--
troops or fulfillment of some of the U.N. security resolutions 
already passed.
    Senator Durbin. You're a student at Princeton, and yet I 
know you've traveled to many campuses talking about Team Darfur 
and what your goals are.
    Mr. Cheek. I have.
    Senator Durbin. Would you like to give me your observations 
about why this genocide in Darfur seems to resonate among the 
young people of our country?
    Mr. Cheek. I can speak for myself, pretty much, I think, 
only, in that I think that we are--I think we're offended by 
the thought that there are such--such huge numbers of people 
being slaughtered by their own government, and we're all aware 
of it. I think, perhaps in crimes in the past it was all 
dependent on whether one journalist could sneak in and get a 
few images out.

    I think today students across the U.S. are so well-
connected with events going on around the world within just a 
few seconds of hearing something about a crime that's happening 
half-way across the world in a country that we have no 
strategic interest in, we can be aware of the massive injustice 
and I think it offends us that we can be aware of this and that 
this can happen, and that people in power can know this is 
happening, and yet still, seemingly little is done to stop it. 
Again, I understand the complexities of the issue, but I think 
more than anything the ability that we have to reach out, see 
the world, and realize that we have the ability to stop these 
crimes and we haven't.

    Senator Durbin. Ms. Smith, most everyone knows that Sudan 
is an oil-producing country and that China is one of the major 
countries doing business with Sudan. There's been a lot of 
conversation about how to persuade China to take a more active 
role in dealing with the Sudanese government. Can you give me 
your impressions as to whether or not we can, should, or will 
effectively work in that direction?

    Ms. Smith. Yes. I think we can, and should. There's been 
some effort, arguably more by the public than by our own 
government, to put pressure on the Chinese. And it's quite 
interesting. It's less pressure aimed at impugning their 
character or isolating China and more pressure designed to call 
on China to use its leverage with Khartoum to, for example, 
allow the full deployment of the UNIMID peacekeeping operation. 
It's certainly not been successful, but I think there is 
evidence that it has had some impact.

    I think it's evident in a couple of ways. One, a lot of the 
pressure around the Olympics and the reference to things like 
the Darfur Olympics is something that has resonated with the 
Chinese. They're just like anyone else; they don't want to be 
seen, particularly at a time that they're hosting the Olympics, 
as championing the cause of genocide.

    Second, I have, and many others of us in a growing 
movement, have actually met with the Chinese on this. And I 
would say that, again, I don't know whether the pressure is 
sufficient to cause them to change their policy. I certainly 
don't think they're going to abandon Sudan and the oil supplies 
that it offers.

    But I had every indication that they're hearing this and 
they want to figure ways to get out from under the pressure. 
Unfortunately, what they've done has been insufficient. They've 
sent an envoy, they've made statements, they've been largely 
superficial gestures. Just recently, they commended the 
government of Sudan for its excellent behavior and progress on 
Darfur, rather ironically.

    But I believe that if there were united public pressure and 
if the administration acted on this in some way--and frankly 
there's been very little. There have been a couple of meetings 
with the Chinese about I think that's it--that it might be 
possible to get the Chinese to use their leverage on Khartoum.

    Senator Durbin. I might say, as I mentioned earlier, that 
I've had conversations with Condoleeza Rice, Secretary of 
State, as well as the President personally on this issue and 
I've reminded them that they've said ``not on my watch'' and 
that their watch is about to end without a U.N. peacekeeping 
force in place and with the violence continuing.

    Ms. Smith. Yes.

    Senator Durbin. And so I'm hoping that in the closing 
months, even in the closing weeks before the Olympics, that 
they might be persuaded to renew this conversation with the 
Chinese about their role.

    Mr. Hari, one of the things you've said here, though, makes 
this especially challenging because you've suggested there are 
28 different rebel groups now involved in the violence in 
Darfur, and 3 different Janjaweed militia. We tend to 
oversimplify it here in the United States and say, well, if the 
government in Khartoum would just declare an end to this 
violence, it would end. But it seems to me that it's much more 
complicated on the ground in terms of who is in charge and who 
would be brought to the table if we are to find a truce or 
peace. Is that your impression, too?
    Mr. Hari. Yes. We are, in Sudan--it's a very large country. 
When we had a war in south Sudan for 25 years, Senator, just 
only we had SPLM at that time, the Sudan People's Liberation 
Army, but the Khartoum regime said they are able to split that 
power for many, many factions in south of Sudan. They--very 
weak. So that's what they used the policy in Darfur for, for 
25, 28 different rebel groups, surrounded by the tribals, they 
have to pay for some tribes or the tribal leaders and they're 
fighting. Sometimes--again, it's some of pride, and that's--
they wanted to make very weak toward Darfurians to be united 
themselves.

    But that is not going to be far along because you don't 
know right now if you are going to visit Sudan one day and you 
go into Khartoum from Darfur, it's very easy to get from what 
Sudan is telling you, look what is happening in Darfur. There's 
no government troops, there is not any Janjaweed, just only 
tribes fighting themselves. So, this is an ethnic problem, not 
a policy problem. So that's what they do. They make a different 
level of our problem in Darfur and it has to make--different 
for the international community. But that's the same problem 
they get with who is paying for the tribal leaders and others 
or different tribal leaders to do that.

    Senator Durbin. Professor Orentlicher, now, what Senator 
Feingold asked was, I thought, a legitimate question about how 
many of these people who might be charged with crimes against 
humanity came to the United States, and whether they answered 
the questionnaires honestly in order to come to the United 
States. I think he addressed part of that in his question. 
Secondly, there is the question of whether they could stay in 
the United States or be subject to deportation, as we've called 
for in several instances.

    But I'd like you to address a comment which I've heard. 
When we suggest adding new crimes to be prosecuted, some say 
that we shouldn't be tying up our system of justice, but that 
we should deport them back to their country for prosecution. 
Could you address that particular critique?

    Ms. Orentlicher. Well, we should do all we can to ensure 
that people can be prosecuted in the country where they 
committed crimes when there's a credible prospect that they 
will be prosecuted. That should always be our first priority. 
But often removing someone is equivalent to guaranteeing their 
impunity.

    In some instances when a country is still very unstable, if 
you send some of the worst perpetrators back and the system of 
justice is in a state of wholesale collapse, there's a risk of 
destabilization. So a decision has to be made on a case-by-case 
basis of where the best place for prosecution is, but we should 
always have the option of ensuring justice when it cannot be 
obtained elsewhere.

    Senator Durbin. And for the record, I think this relates to 
a question from Senator Whitehouse. We looked up earlier 
testimony from David Scheffer about crimes against humanity. 
This has been defined and incorporated in the criminal codes of 
Australia, Canada, Germany, the Netherlands, New Zealand, South 
Africa, Spain, Argentina, and the United Kingdom.

    Ms. Orentlicher. Right.

    Senator Durbin. So other countries have seen the need to do 
what we are proposing here, and many of those have been our 
allies in wars against inhumane and terrorist conduct.

    Ms. Orentlicher. Absolutely.

    Senator Durbin. Well, I want to thank this panel for their 
testimony here today, for bringing this issue forward. I've 
tried through this subcommittee and on the floor to continue to 
revisit this issue. I am reminded of the experience of my 
former college classmate and former President Bill Clinton, 
who, after the genocide in Rwanda, when his presidency had 
ended, said it was one of the real mistakes of his 
administration that they did not step forward.

    At the time there were several leaders in the Senate 
calling for his administration to do something, including my 
predecessor, Senator Paul Simon of Illinois, and Senator Jim 
Jeffords of Vermont, then a Republican. It was a bipartisan 
effort which did not work. I felt that there was a need to 
continue to bring this issue forward in practical ways.

    I've said from the outset that this subcommittee is going 
to focus on legislation, not lamentation. We are going to not 
just look in horror at the scenes of genocide and crimes 
against humanity, but think of practical ways for us to deal 
with them to reduce the violence and to end the killing. That 
is why this hearing has been held today.

    I'm going to give special thanks as I close this hearing to 
some extraordinary staff people who have done great work to 
make this hearing a possibility, starting with my Chief Counsel 
on the Senate Judiciary Committee, Joe Zogby, Heloisa Griggs, 
Jaideep Dargan, Corey Clyburn, who is a legal intern, and Talia 
DuBovi.

    I also want to thank on the other side Senator Coburn's 
staff, and particular, Brooke Bacak, his Chief Counsel, who's 
been very supportive and very helpful. Senator Coburn has been 
an excellent ally in this entire endeavor. I know he regrets 
not being able to be with us today, but I'm glad that he 
persuaded Senator Specter to join from the Republican side. As 
you can tell, there's bipartisan interest in this.
    So at this point the record will be open for questions to 
be asked of the witnesses for several days, and I hope they can 
respond in a timely way.

    I thank you all for the sacrifice of coming here today and 
being part of this testimony and we will continue to press 
forward for this legislation.

    This meeting of the subcommittee will stand adjourned.

    [The prepared statement of Ms. Farrow appears as a 
submission for the record.]

    [Whereupon, at 11:18 a.m. the subcommittee was adjourned.]

    [Questions and answers and submissions follows.]


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