[Congressional Record (Bound Edition), Volume 153 (2007), Part 8]
[Senate]
[Pages 11600-11602]
[From the U.S. 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 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

[[Page 11601]]

     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,

[[Page 11602]]

     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 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.

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