[Senate Hearing 110-786]
[From the U.S. Government Publishing Office]
S. Hrg. 110-786
FROM NUREMBERG TO DARFUR: ACCOUNTABILITY FOR CRIMES AGAINST HUMANITY
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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
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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
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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
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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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