[Congressional Record Volume 153, Number 75 (Tuesday, May 8, 2007)]
[Senate]
[Pages S5707-S5709]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
GENOCIDE ACCOUNTABILITY ACT
Mr. DURBIN. Mr. President, S. 888, the Genocide Accountability Act,
is the first legislation produced by the Senate Judiciary Committee's
new Subcommittee on Human Rights and the Law, which I chair. It is
bipartisan legislation that I introduced with Senator Tom Coburn,
ranking member of the Human Rights and the Law Subcommittee, Senator
Patrick Leahy, chairman of the Judiciary Committee, and Senator John
Cornyn.
The Genocide Accountability Act would close a legal loophole that
prevents the U.S. Justice Department from prosecuting individuals who
have committed genocide. Under current law, genocide is only a crime if
it is committed within the United States or by a U.S. national outside
the United States. The Genocide Accountability Act would amend 18
U.S.C. 1091, the Genocide Convention Implementation Act, to allow
prosecution of non-U.S. nationals who are brought into or found in the
United States for genocide committed outside the United States.
I recently received a letter from David Scheffer, U.S. Ambassador at
Large for War Crimes from 1997 to 2001, which makes clear the impact
that the Genocide Accountability Act could have. Ambassador Scheffer's
letter explains that the loophole in our genocide law hindered the U.S.
Government's efforts to secure the apprehension and prosecution of
former Cambodian dictator Pol Pot, one of the worst war criminals of
the 20th century. If the Genocide Accountability Act had been law when
Pol Pot was alive and at large, maybe the United States would have been
able to bring him to justice.
The Genocide Accountability Act recently passed the Senate
unanimously. I am hopeful that in short order the House of
Representatives will pass it and the President will sign it into law.
The United States should have the ability to bring to justice
individuals who commit genocide, regardless of where their crime takes
place and regardless of whether they are a U.S. national. The Genocide
Accountability Act would end this immunity gap in U.S. law.
Mr. President, I ask unanimous consent to have Ambassador Scheffer's
letter to which I referred printed in the Record.
There being no objection, the letter was to be printed in the Record
as follows:
Center for International
Human Rights,
April 6, 2007.
Re lost opportunities to achieve international justice.
Senator Richard Durbin,
Chairman, Subcommittee on Human Rights and the Law, Committee
on the Judiciary, U.S. Senate, Washington, DC.
Dear Senator Durbin: you have asked me to recount how
limitations in U.S. federal law during the 1990's prevented
the Clinton Administration, in which I served as U.S.
Ambassador at Large for War Crimes Issues (1997-2001), from
ensuring the speedy apprehension and prosecution of the
former Cambodian leader, Pol Pot, on charges of genocide,
crimes against humanity, or war crimes (``atrocity crimes'')
prior to his death in March 1998. Because such limitations in
U.S. law remain, particularly with respect to the crime of
genocide, it may be useful for Members of Congress to
consider how historically devastating was this lost
opportunity to achieve some measure of justice for the deaths
of an estimated 1.7 million Cambodians under Pol Pot's rule
from 1975 to 1979.
In June 1997 the then two co-prime ministers of Cambodia,
Hun Sen and Norodom Ranariddh, sent a letter to the
Secretary-General of the United Nations seeking assistance to
establish an international criminal tribunal that would
render justice to the senior Khmer Rouge leaders, none of
whom had been prosecuted with the sole exception of a highly
dubious in absentia trial of Pol Pot and his foreign
minister, Ieng Sary, in a Cambodia in 1979 shortly after the
fall of the Khmer Rouge regime. The jointly-signed letter in
June 1997 opened two pathways of action by the Clinton
Administration: the first continues to this day, namely how
to investigate and prosecute surviving senior Khmer Rouge
leaders and bring them to justice before a credible court of
proper jurisdiction; the second interrelated issue dealt with
effective measures to apprehend and hold suspects in custody
until they could be brought to trial.
Since no international criminal tribunal existed in 1997
that was specially designed to
[[Page S5708]]
investigate and prosecute senior Khmer Rouge leaders and
because the judicial and political situations within Cambodia
did not favor domestic prosecution at that time, we began in
late June 1997 to examine options for prosecution of Pol Pot
and his leadership colleagues before a yet-to-be-created
international tribunal or before either U.S. federal
courts or foreign domestic courts. We were receiving
signals that Pol Pot, who had been in hiding since his
fall from power in 1979, might be located and in a
position either to be captured or to surrender in a manner
that would facilitate his transfer to a court of competent
jurisdiction.
Among all the options we examined at the time, the most
desirable was the establishment of an international criminal
tribunal by authorization of the U.N. Security Council acting
under U.N. Charter Chapter VII enforcement authority. This
was the means by which the International Criminal Tribunals
for the Former Yugoslavia and Rwanda were created. I pursued
that option until the summer of 1999, when various factors
made it unrealistic and required a change of strategy that
ultimately resulted in the creation of a hybrid domestic
court in Cambodia called the Extraordinary Chambers in the
Courts of Cambodia. But because, beginning in mid-1997, we
began to experience episodes where the prospects of capturing
Pol Pot (and later one of his top officials, Ta Mok), were
quite high, I needed to find a jurisdiction (U.S. or foreign)
which would receive Pol Pot and hold him until the
international criminal tribunal could be created and then he
could be transferred to the jurisdiction of that tribunal. If
we chose or were compelled (by virtue of no foreign country
accepting Pol Pot) to transfer Pol Pot to U.S. territory, we
had to be prepared to prosecute him before a U.S. court in
the event the U.N. Security Council failed to create an
international criminal tribunal with jurisdiction to
prosecute senior Khmer Rouge leaders.
But Pol Pot was not a natural candidate for a genocide
prosecution before any U.S. court. Under 18 U.S.C.
Sec. 1091(d) (1999), only an American citizen who is charged
with committing genocide anywhere in the world or anyone
(including an alien) who commits genocide in the United
States can be prosecuted. This seemed incredulous to me at
the time, given the prima facie case against Pol Pot for
atrocity crimes, including genocide, and this rare
opportunity to capture and bring him to justice. Instead of
stepping forward immediately and making U.S. courts available
to prosecute this notorious individual, I had to wade into a
thicket of diplomacy to try to find a willing government
somewhere who would accept Pol Pot (if captured) and either
detain him until an international criminal tribunal was
created or prosecute him in its own courts.
Nonetheless, efforts were made by the Justice Department
(beginning in late June 1977) to explore options under U.S.
law for a possible prosecution of Pol Pot if he were captured
and brought to U.S. territory. Initially, attention focused
on whether any U.S. official personnel were victims of the
atrocity crimes of the Pol Pot regime. The roster of federal
agencies from which personnel could be identified for this
purpose was set forth in 18 U.S.C. Sec. 1114. The Central
Intelligence Agency was not listed in that roster of
agencies. U.S. courts would have had jurisdiction over a
crime committed (in this situation, in Cambodia) against U.S.
personnel from one of the designated agencies in Section
1114. However, no such individual could be identified by the
Justice Department. Therefore, we lost our best opportunity
for jurisdiction for the reason that, according to the
Justice Department research, no U.S. government personnel (at
least from the agencies identified in Section 1114) lost
their lives under the Pol Pot regime. There were American
citizens who died in Cambodia during the relevant period
(1975-1979) of Pol Pot's rule, but they did not qualify
under U.S. law at the time as triggering federal
jurisdiction.
There was a second rational for prosecution of Pol Pot
which arose in March 1998 when we were very close to
achieving apprehension of Pol Pot and flying him out of
Cambodia or Thailand to U.S. territory. Justice Department
officials put forward a theory called the ex post facto
limitation analysis. It was a high risk gamble in federal
court that rested, essentially, as I recall, on applying the
customary law principles codified in the Convention on the
Prevention and Punishment of the Crime of Genocide and the
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment to the events that
transpired in Cambodia in the late 1970's, and joining those
principles with the President's broad authority under the
foreign affairs powers of the U.S. Constitution. One must
remember that the Genocide Convention Implementation Act of
1988 (the Proxmire Act) was not adopted until 1988 and thus
acts of genocide committed during the late 1970's would not
have qualified in any event for U.S. prosecution even if the
standard grounds for personal or territorial jurisdiction
under the law were satisfied. The Justice Department
officials warned that there was no assurance whatsoever that
a federal court would be persuaded by the ex post facto
limitation analysis and if the judicial effort failed, then
Pol Pot might walk away free from U.S. detention and onto
U.S. territory. Ultimately, by September 1998, the Attorney
General signaled her unwillingness to attempt prosecution if
Pol Pot were brought to U.S. territory for any period other
than a very temporary stay (see below).
Of comparable concern to my Justice colleagues in 1997,
1998, and 1999 when either Pol Pot or Ta Mok or other senior
Khmer Rouge leaders were within our sights for apprehension
or surrender in Cambodia, was how to defeat a habeas corpus
petition by any one of them if they were detained on U.S.
territory or held by U.S. authorities on foreign territory.
That concern meant that Justice needed to be confident there
was enough evidence on the detainee to make a prima facie
case against him or at least provide sufficient documentation
to the court to ensure that the habeas petition would be
defeated. Although this concern was relevant for Pol Pot, it
became extremely significant with respect to other senior
Khmer Rouge leaders (such as Khieu Samphan, Ieng Sary, Ta
Mok, Nuon Chea, and others) for whom the evidence had not yet
been collected to a degree and in a manner that satisfied the
Justice officials.
In response to this concern, the Justice Department
deployed lawyers to Yale University in New Haven, where
documents from the Pol Pot era were being stored, and
ultimately to the Documentation Center for Cambodia in Phnom
Penh, to examine documents that might implicate senior Khmer
Rouge leaders. I seem to recall that those research efforts
left the lawyers still concerned about whether a federal
court would dismiss a habeas challenge from any one of the
senior Khmer Rouge leaders.
These were critical arguments to factor into the overall
strategy. Justice officials advised that they would not want
to hold Pol Pot or his colleagues on U.S. territory for more
than about ten days if there was no likelihood of bringing
them to trial before a federal court. They also could not
rationalize any perpetual detention that would
unquestionably survive a habeas challenge. If we were not
prepared to prosecute the senior Khmer Rouge leaders in
federal court, including under the high-risk strategy of
ex post facto limitation analysis, then any detention on
U.S. territory must be exceptionally temporary (no more
than ten days), thus essentially serving as a way-station
to a confirmed onward destination (namely, a foreign
national court or an international criminal tribunal).
These significant concerns, prompted by the absence of a
genocide law that had jurisdiction over Pol Pot and senior
Khmer Rouge leaders and by concerns over habeas corpus
challenges in the federal courts, pointed us to a detention
strategy that stood a much better chance of defeating, if not
avoiding, a habeas challenge and ultimately using a
jursdiction (national or international) willing to prosecute
these individuals.
When the net was closing in on Pol Pot in March 1998, we
arranged with Palau that it serve as a likely destination for
Pol Pot, who would be flown there by U.S. aircraft with the
permission of the Government of Palau and the Government of
Cambodia. U.S. Marshalls would guard Pol Pot until a suitable
jurisdiction could be found for his trial (and we knew that
might take some time). After Pol Pot's sudden and untimely
(not to mention mysterious) death in Cambodia in late March
1998, we focused on using Palau as a detention site for any
other senior Khmer Rouge leaders who could be apprehended
and, with the permission of the Government of Cambodia,
transported out of Cambodia (or Thailand if anyone of them
had crossed the border during a chase) to Palau to await a
final destination for trial. But the dynamics of custody
evolved following Pol Pot's death. Arrangements for potential
detention on Palau were finalized and by August and September
1998, the internal argument prevailed that any custody on
Palau should be joint custody by Cambodian and American
guards, undertaken at the request of the Cambodian
Government, and preferably (though it was not essential)
achieved even at the request of the detainee. At that point,
we knew that most potential detainees (senior Khmer Rouge
leaders) did not wish to be incarcerated in Cambodia. Indeed,
we knew that shortly bcfore his death Pol Pot had reportedly
told journalist Nate Thayer that he was prepared to go to the
United States to face justice. We also knew by September 1998
that Ta Mok was not willing to surrender for a trial in
Cambodia, but we wondered whether that was a signal that he
might agree to stand trial outside of Cambodia.
The joint custody arrangement on Palau, especially if it
could be supplemented by the request of the detainee himself,
could greatly strengthen the Justice Department's case in the
event of a habeas corpus challenge to federal court by anyone
of the detainees that might be held in Palau. Even though
Palau was by then an independent nation, its former U.S.
territorial status and the fact of U.S. custody on Palau
raised enough concerns that the shield of joint Cambodian-
American custody, the request of the Government of Cambodia,
and the approval of the Government of Palau all combined to
reassure us of the viability of a Palau detention site. One
indeed was created; U.S. Marshalls were deployed in
anticipation of arrivals of captured senior Khmer Rouge
leaders; and even the U.S. Ambassador to the Philippines, who
included Palau in his portfolio, at one point stood ready at
the site to receive the suspects. I need to
emphasize, however, that Palau was seen strictly as a
relatively temporary detention site until a proper and
willing national jurisdiction could be found or, with the
possibility of an international criminal tribunal, created
for
[[Page S5709]]
purposes of investigating and prosecuting these
individuals. But we had no expectation of it taking more
than several months to find suitable jurisdiction
(particularly given the high-profile reality of Pol Pot
finally in custody and our hope that having him in custody
would spur Security Council interest in finding a means to
prosecute him).
As it turned out, not a single senior Khmer Rouge leader
was ever captured with the assistance of U.S. authorities.
The cooperation of the Cambodian Government for detention of
suspects at Palau collapsed by early 1999. The plan would
have been activated if our efforts to capture Pol Pot had not
been scuttled by his sudden death in late March 1998. Our
vigorous efforts to capture Ta Mok (or secure his surrender)
during the rest of 1998 and into early 1999 finally were
overtaken when he was captured by Cambodian forces and
detained in Phnom Penh. Other senior Khmer Rouge leaders
surrendered under arrangements that kept them out of prison
in Cambodia, with the exception of Kang Kek Ieu (alias
Comrade Duch), the chief of the notorious Tuol Sleng prison,
who remains imprisoned to this day by Cambodian authorities
in Phnom Penh. So the habeas corpus concerns never were
tested even under the remote circumstances that would have
been presented with a joint custody arrangement in Palau.
The other story in this saga concerns my efforts to find
the alternative jurisdiction before which Pol Pot and his
colleagues could be held until transferred to a newly
established international criminal tribunal or prosecuted for
genocide and other atrocity crimes. In all of these efforts,
which I will describe briefly, the fact that the United
States was incapable of prosecuting the crime of genocide
against Pol Pot and the senior Khmer Rouge leaders was
diplomatically crippling. It forced me to concede that the
United States had not stepped up to the plate itself with
some reasonable application of universal jurisdiction for
genocide. How could I credibly persuade other governments to
stretch their domestic law to prosecute Pol Pot et al. when
the United States was not prepared to do so (and had as much
if not more reason to try to do so in the case of Cambodia
than, say, Sweden, Denmark, Norway, or Spain). If the United
States had had the legal tools wit which to prosecute Pol
Pot, but was hampered for some political or logistical
reason, at least then I could have argued with credibility
that a foreign government also has the responsibility to step
forward and bring this man to justice. So I was dealt a very
weak hand.
I pursued two tracks of diplomatic strategy to find a
jurisdiction willing and able to prosecute Pol Pot and the
senior Khmer Rouge leaders. Both tracks were launched
immediately in June 1997 when the first opportunity arose to
apprehend Pol Pot. The first track was to approach countries
either with some capability in their domestic criminal codes
to exercise a form of universal jurisdiction over genocide
and/or crimes against humanity or (we thought) might be
willing to find an innovative way to prosecute Pol Pot. These
countries at first included Canada and Denmark and later, in
April 1998, expanded to include Germany, Spain, Norway,
Sweden, Australia, and Israel. Each one of them declined the
opportunity I presented to receive Pol Pot for trial in the
event the United States Government arranged for his capture
and then transport to such country. Each one also declined
the opportunity to hold Pol Pot temporarily until a
suitable national court or international criminal tribunal
could be found or created for the purpose of prosecuting
Pol Pot and other senior Khmer Rouge leaders.
The second track of diplomatic strategy was to persuade
U.N. Security Council members to join us in approving the
establishment of an international criminal tribunal to
investigate and prosecute the senior Khmer Rouge leaders
(including Pol Pot while he was still alive). This proposal
went through various stages of evolution, and included plans
for sharing certain functions, such as the prosecutor and the
appeals chamber, with the International Criminal Tribunal for
the Former Yugoslavia (ICTY). In late April and early May of
1998 I worked closely with the U.S. Mission to the United
Nations to formally present a draft resolution, with a draft
statute for the tribunal appended, to other Security Council
members for their consideration. Concerns by other members
arose as to germaneness for the Council (i.e., whether there
still existed a threat to international peace and security in
Cambodia that would trigger Security Council jurisdiction),
whether the ICTY's jurisdiction (or perhaps that of the
International Criminal Tribunal for Rwanda) should be
expanded, whether the Government of Cambodia would formally
request such a tribunal (which one permanent member
considered essential), and how the cost would be borne. China
and Russia, in particular, balked at the proposal and refused
to indicate any support whatsoever. Tribunal fatigue on the
Security Council also took hold to slow down the Cambodia
option. Another key factor was the advent of the permanent
International Criminal Court and concerns that an initiative
on Cambodia would shift attention and resources away from
that key priority for many of the Security Council members
(permanent and non-permanent).
Without any leverage to threaten U.S. prosecution in the
absence of an international criminal tribunal, I could only
press the merits of the issue as hard as possible, knowing
that achieving international justice for the atrocity crimes
of the Pol Pot regime was not a high priority for most other
governments. Indeed, for some it may have been viewed as a
threat to their own national interests. I would have
benefited, however, if at key junctures in the negotiations
over an international criminal tribunal I could have asked
whether our colleagues on the Security Council would be more
comfortable with a U.S. federal court examining the evidence
or would they find more palatable a tribunal of international
composition investigating Pol Pot's deeds. I never had the
opportunity to offer that choice in my talks.
By August 1999 I had exhausted my final efforts to achieve
a Security Council international criminal tribunal with both
the Government of Cambodia and with other Security Council
members. At that point the Clinton Administration shifted its
focus to creating a hybrid court in Cambodia and intensive
efforts led by late 2000 to what became the Extraordinary
Chambers in the Courts of Cambodia, approved initially by the
Cambodian National Assembly in early 2001. But by August 1999
the prospect of looking to the United States as a plausible
jurisdiction for prosecution of genocide in Cambodia already
had become a distant memory.
In conclusion, I would stress that the inability of U.S.
courts to prosecute Pol Pot and the senior Khmer Rouge
leaders contributed to significant delays in bringing these
individuals to justice, delays that reverberate to this day
as the Extraordinary Chambers in the Courts of Cambodia
struggle to overcome one obstacle after another before
proceeding to indictments and trials. Several key suspects
died before they could be brought to trial, including Pol
Pot, Ke Pauk, and Ta Mok. Their fates--dead before justice
could be rendered--did not necessarily have to become the
historical record. We could have moved much faster and more
decisively in 1997 and 1998 to secure their custody, ensure
proper medical care, and bring them before a court of either
national or international jurisdiction if the reality of U.S.
jurisdiction for at least the crime of genocide had existed.
If we seek to influence others to prosecute the crime of
genocide, and if we aspire to arming our diplomats with the
arguments they need to influence other governments to accept
their responsibilities for international justice, we must be
able to demonstrate that our courts have, within reasonable
parameters, the jurisdiction to prosecute the crime of
genocide. Even if such jurisdiction may rest upon the
discretion of, say, the Attorney General under certain
extreme circumstances, we must be able to use it for the
worthy purpose of credible justice.
During the final negotiations for the Rome Statute of the
International Criminal Court in July 1998, I presented the
U.S. position that with respect to the crime of genocide, the
International Criminal Court should exercise universal
jurisdiction. That U.S. position in the negotiations was
partly influenced by our unfortunate experience with Pol Pot
months earlier.
I would hope that given all of this experience-stretching
back to the Holocaust and even earlier, and given the logic
that must apply to ending the crime of genocide, U.S. law at
long last could reflect the illegality of genocide committed
by anyone anywhere in the world and the ability of our courts
to prosecute the perpetrators of genocide, including when
they are non-citizens who stand on U.S. soil.
Respectfully,
David Scheffer,
Mayer, Brown, Rowe & Maw/Robert A. Helman Professor of
Law, Director, Center for International Human Rights,
Northwestern University School of Law.
____________________