[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
GENOCIDE AND THE RULE OF LAW
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
OCTOBER 23, 2007
__________
Serial No. 110-123
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
MAXINE WATERS, California J. RANDY FORBES, Virginia
WILLIAM D. DELAHUNT, Massachusetts LOUIE GOHMERT, Texas
JERROLD NADLER, New York F. JAMES SENSENBRENNER, Jr.,
HANK JOHNSON, Georgia Wisconsin
ANTHONY D. WEINER, New York HOWARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
ARTUR DAVIS, Alabama DANIEL E. LUNGREN, California
TAMMY BALDWIN, Wisconsin
BETTY SUTTON, Ohio
Bobby Vassar, Chief Counsel
Michael Volkov, Minority Counsel
C O N T E N T S
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OCTOBER 23, 2007
Page
OPENING STATEMENT
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Chairman, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 1
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, and Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 2
WITNESSES
Mr. Eli M. Rosenbaum, Director, Office of Special Investigations,
Criminal Division, United States Department of Justice,
Washington, DC
Oral Testimony................................................. 4
Prepared Statement............................................. 7
Ms. Diane F. Orentlicher, Professor, Washington College of Law,
American University, Washington, DC
Oral Testimony................................................. 15
Prepared Statement............................................. 17
Mr. Jerry Fowler, United States Holocaust Memorial Museum,
Washington, DC
Oral Testimony................................................. 21
Prepared Statement............................................. 23
Ms. Gayle E. Smith, Senior Fellow, Center for American Progress,
Washington, DC
Oral Testimony................................................. 25
Prepared Statement............................................. 27
APPENDIX
Material Submitted for the Hearing Record........................ 39
GENOCIDE AND THE RULE OF LAW
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TUESDAY, OCTOBER 23, 2007
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:40 p.m., in
room 2141, Rayburn House Office Building, the Honorable Robert
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
Present: Representatives Scott, Johnson, Forbes, Gohmert,
Coble, and Chabot.
Staff present: Ameer Gopalani, Majority Counsel; and
Veronica Eligan, Majority Professional Staff Member.
Mr. Scott. The Subcommittee will now come to order.
I am pleased to welcome you today to the hearing before the
Subcommittee on Crime, Terrorism, and Homeland Security on
``Genocide and the Rule of Law.''
Following the mass atrocities committed before and during
World War II, the international community sought to condemn
genocide. The slaughtering of individuals simply because they
are a member of a certain ethnic or racial group has occurred
throughout history, but until the 1940's, the crime did not
have a name.
Raphael Lemkin, a holocaust survivor and the architect of
the Genocide Convention, an international treaty ratified by
over 100 countries, fashioned the term ``genocide'' from the
Greek word ``genus,'' meaning race or tribe, and the Latin term
for killing, ``cide.'' But the invention of the word did not
prevent genocide from happening.
As we witnessed, as many as 800,000 Tutsi minority men and
women and children were murdered in Rwanda. Mass violence also
occurred against citizens in Bosnia, where up to 8,000 Muslim
men and boys were systematically executed.
Obligations of the United States under the Genocide
Convention are in the criminal code, in Title 18, beginning at
Section 1091. Genocide is defined in that section as having the
specific intent to destroy, in whole or in part, a national
ethnic, racial or religious group. The code offers severe
punishment for anyone who commits genocide within the United
States.
The law also makes it a Federal crime for a U.S. national
to commit genocide anywhere in the world. Fortunately, there
has not been a need to use the law against anyone now covered
by it. However, by only covering genocide if it is committed in
this country or committed by a U.S. national, we leave a gap
which allows non-U.S. persons who commit genocide elsewhere to
come to this country with impunity under our laws.
Genocide continues to be a threat in the world and we
should attack it wherever we find it. We see what the lack of
enforcement against genocide evolves to most clearly today in
Darfur. In that region, we see the tragic replay of the
suffering and death. Hundreds of thousands of innocent people
have been killed, raped, tortured, forced to flee, and over two
million people have been driven from their homes.
For them, the commitment of ``never again'' after the
holocaust rings hollow.
So we must ask ourselves why this is so. Is the failure of
law, or of will, or both? This hearing will probe ways that we
may, as a country, contribute to the prevention and punishment
of genocide through more effective implementation of relevant
parts of the conventions against genocide.
In that regard, we will examine our own laws against
genocide to assure that they provide for the prosecution and
punishment of all acts of genocide wherever they occur and by
whomever they are committed.
To this end, the gentleman from California, Mr. Berman, and
the gentleman from Indiana, Mr. Pence, have introduced the
Genocide Accountability Act, H.R. 2489, legislation designed to
amend Title 18 of the U.S. Code, to allow for prosecution of
non-U.S. nationals in the United States who have committee
genocide outside of the United States, just as U.S. nationals
can now be prosecuted.
The United States should have the ability to prosecute
those who find safe haven in the United States for their acts
of genocide. The Genocide Accountability Act would end this
impunity gap in the genocide law.
With that said, I will recognize the gentleman from Texas,
who is standing in for the Ranking Member, the gentleman from
Texas, Mr. Gohmert, for his statement.
Mr. Gohmert. I thank you, Chairman Scott. I want to thank
you for scheduling this hearing.
We are honored to have the distinguished panel of witnesses
to share their views on this important and timely issue.
Perpetrators of genocide have committed some of the most
heinous crimes ever carried out. Genocide is a crime not only
against the specific victims targeted for extermination, but it
is also a crime against humanity.
History is replete with horrible images of human suffering,
where victims are selected based on their human
characteristics. In the modern era, we have seen technological
advances used for destructive reasons in carrying out genocide.
The idea that individuals, hundreds, thousands, and
hundreds of thousands, are singled out and systematically
targeted for extermination offends any person's belief in
humanity or the rule of law.
In recent decades, we have seen ethnic cleansing during the
civil war in the former Yugoslavia, systematic mass killings in
Rwanda, Sierra Leone and, of course, there is the ongoing
suffering in Darfur.
The United States government has long been a key
participant in global law enforcement efforts to help end
genocide, war crimes, and crimes against humanity.
Our government trains and assists the prosecutors and
judges who handle genocide cases in the international tribunals
and domestic courts. Further, our government extradites
perpetrators of genocide and other human rights violators found
in this country to courts and tribunals for prosecution.
In cases where our government discovers that suspected war
criminals have become naturalized citizens or have illegally
obtained visas to visit our country, the government has charged
them--imposed denaturalization and removed them from this
country.
I welcome the opportunity to hear from the witnesses how we
can continue to bring the perpetrators of genocide to justice.
I look forward to working with my friend, Mr. Scott, on this
important issue, because it is clear crimes of this devastating
nature that occur elsewhere, if not stopped, will come to roost
here in our midst.
Thank you. I yield back.
Mr. Scott. Thank you.
We have a distinguished panel of witnesses here today to
help us consider the important issues that are currently before
us.
Our first witness is Eli Rosenbaum, Director of the Office
of Special Investigations in the Criminal Division of the
Department of Justice. He is the longest serving prosecutor-
investigator of Nazi criminals in world history, having worked
on these cases at the Department of Justice for more than 20
years.
He is a graduate of the Wharton School of the University of
Pennsylvania, where he received his MBA, and of the Harvard Law
School.
Our next witness is Professor Diane Orentlicher, currently
serving as special counsel to the Open Society Justice
Initiative, while on a 1-year leave from the Washington College
of Law at American University, where she is professor of
international law.
She is a founding director of the law school's War Crimes
Research Office and is co-director of its Center for Human
Rights and Humanitarian Law. In 2004, the United Nations
Secretary General appointed her to serve as the United Nations
Independent Expert on Bombating Impunity.
We next have Jerry Fowler, who is the founding director of
the U.S. Holocaust Memorial Museum's Committee on Conscience,
taught at George Washington University Law School and George
Mason University Law School, and is a graduate of Stanford Law
School and Princeton University.
From 1983 to 1987, he was stationed in Germany as an office
of the U.S. Army. From 1993 to 1995, he served as a special
litigation counsel for the U.S. Department of Justice.
Before joining the museum, he was legislative counsel for
the Lawyers' Committee for Human Rights.
And, finally, we will have Gayle Smith, senior fellow at
the Center for American Progress. She previously served as
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 on International Development from 1994
to 1998.
She was based in Africa for over 20 years as a journalist,
covering military, economic and political affairs issues. She
is a member of the Council on Foreign Relations and serves on
the board of the African-American Institute, USA for Africa and
the National Security Network.
Each of the witnesses' written statements will be made part
of the record. I would ask each witness to summarize his or her
testimony in 5 minutes or less. And to stay within that time,
there is a lighting device at the table. It will go from green
to yellow to red when the time is up.
We will now begin with Mr. Rosenbaum.
TESTIMONY OF ELI M. ROSENBAUM, DIRECTOR, OFFICE OF SPECIAL
INVESTIGATIONS, CRIMINAL DIVISION, UNITED STATES DEPARTMENT OF
JUSTICE, WASHINGTON, DC
Mr. Rosenbaum. Thank you, Chairman Scott and distinguished
Members of the Subcommittee, for holding this important
hearing.
It is a privilege to appear before you today. As the
director of the Justice Department's Office of Special
Investigations, I am pleased to discuss the department's
ongoing efforts against perpetrators of genocide, war crimes,
and crimes against humanity.
My office, OSI, which has been handling denaturalization
and removal cases against World War II era Nazi criminals since
its creation for that purpose in 1979, had its mission expanded
in 2004, so that it now also handles certain cases of genocide
and other crimes perpetrated abroad since the conclusion of the
second World War.
Bringing these perpetrators to justice obviously is a
mission of the very greatest important.
On a personal note, participating in the quest for justice
on behalf of the victims of genocide has been the great
privilege of my professional life. I would like to think that
in doing so, I have, in some sense, continued the work that my
father, who died just this past July, did in Europe.
He served his country and the causes of freedom and
humanity during and after World War II in the Third Infantry
Division and then in the United States Seventh Army, and his
responsibilities at war's end included questioning Nazi war
crimes suspects.
When he tried to tell me once, when I was 15 years old,
what he had seen at the Dachau concentration camp upon his
arrival there 2 days after its liberation, his eyes welled with
tears and he was unable to speak. He never could tell me, but I
understood.
In May, I was in Rwanda and made an unforgettable visit to
the genocide memorial in Kigali, where the First Lady had laid
a wreath during her 2005 visit.
When I came to work at OSI, I could hardly have imagined
that genocide would again be perpetrated. I would like to add
that Sigal Mandelker, the deputy assistant attorney general, to
whom I report, and who would be testifying here today but for a
prior commitment outside the country, is the granddaughter of
three grandparents who did not survive Hitler's horrific
genocide of six million Jews.
Her mother was orphaned by the Holocaust, and her father
lost his mother at the age of just 5. This is an issue about
which she feels deeply, both personally and professionally, as
do I and all of my colleagues who work on these cases at the
Department of Justice.
The department continues to utilize all tools available
against perpetrators of these crimes, including prosecution,
extradition and removal, and provision of assistance to
countries and tribunals that prosecute these crimes.
First, the Department of Justice makes use of civil and
criminal charges to ensure that the perpetrators of such crimes
don't find safe haven in the United States. For the past 28
years, the Office of Special Investigations has identified,
investigated and brought civil denaturalization and removal
cases against World War II Nazi perpetrators and we have
successfully pursued more than 100 of these cases.
In addition, U.S. attorney's offices around the country,
OSI and the Criminal Division's Domestic Security Section
criminally prosecute individuals who allegedly participated in
genocide, war crimes, and crimes against humanity for offenses
such as visa fraud, unlawful procurement of naturalization and
false statements.
For example, a number of Bosnian Serbs, including
individuals who served in units implicated in the Srebrenica
massacres, have been arrested by Immigration and Customs
Enforcement and charged with immigration related crimes for
concealing their prior service in the Bosnian Serb military.
Two of those men who have been removed by ICE to Bosnia
were indicted last December by Bosnian authorities on charges
of murder and other serious offenses.
Third, we extradite individuals wanted for human wanted for
human rights violations. For example, in March of 2000,
following the conclusion of hard fought litigation, the United
States turned over Elizaphan Ntakirutimana to the International
Criminal Tribunal for Rwanda.
This individual, a pastor at the time of the Rwanda
genocide, was accused of devising and executing a lethal scheme
in which Tutsi civilians were encouraged to seek refuge in a
local religious complex, to which he then directed a mob of
armed attackers. With his participation, the attackers
thereupon slaughtered and injured those inside.
In 2003, Ntakirutimana, a one-time Texas resident, was
convicted by the tribunal of aiding and abetting genocide and
he was sentenced to 10 years imprisonment. Moreover, a
Department of Justice prosecutor played a crucial role in
bringing those charges.
Finally, the United States continues to provide substantial
assistance to foreign governments and to various international
tribunals that are investigating and prosecuting human rights
cases abroad, including the international criminal tribunals
for both Rwanda and the former Yugoslavia.
Indeed, the U.S. has been the largest contributor to both
of these tribunals. The department has also loaned a number of
experienced law enforcement professionals to the ICTY,
including the former head of DSS.
Under the leadership of the Criminal Division's Office of
Overseas Prosecutorial Development and Training and, also, the
Division's International Criminal Investigative Training
Assistance Program, we have also operated major training
programs and provided capacity-building assistance in the
investigation and prosecution of war crimes, including to the
various countries and jurisdictions of the former Yugoslavia.
Mr. Chairman, thank you again for holding this important
hearing today. We are very grateful for the tools that Congress
has provided U.S. in these enormously important cases, and I
welcome any questions you may have.
[The prepared statement of Mr. Rosenbaum follows:]
Prepared Statement of Eli M. Rosenbaum
Mr. Scott. Thank you.
Ms. Orentlicher?
TESTIMONY OF DIANE F. ORENTLICHER, PROFESSOR, WASHINGTON
COLLEGE OF LAW, AMERICAN UNIVERSITY, WASHINGTON, DC
Ms. Orentlicher. Mr. Chairman and distinguished Members of
this Subcommittee, I am grateful for the opportunity to share
my views about a subject that could hardly be more important or
consequential--the role of the United States in combating
genocide through the rule of law.
As a party to the 1948 Convention on Genocide, the United
States has long recognized that genocide is a crime under
international law and has vowed to prevent and punish it.
Yet we haven't always honored our commitment to prevent or
halt genocide when we have been in a position to act, and the
principal law implementing our treaty obligation to punish
genocide does not go far enough. In particular, as the Chairman
already has noted, it does not empower U.S. authorities to
bring genocide charges against foreigners who are believed to
have committed genocide abroad and who have then sought
sanctuary in our own country.
My remarks will focus on this gap, whose problematic
implications can be easily resolved through legislation that
falls squarely within the province of this Subcommittee.
First, though, I want to say that this hearing honors a
point that was central to the life project of Raphael Lemkin,
who, as the Chairman has noted, was the Polish scholar who
famously gave genocide its name and then devoted himself to
persuading States to condemn genocide as a crime under
international law.
In his view, it was absolutely essential to confront
genocide through law, not just an all-too-fragile code of
conscience but an enforceable code of law.
His tireless crusade culminated in 1948, when the U.N.
General Assembly adopted the Genocide Convention. But Lemkin
did not live long enough to realize another goal that was also
important to him--United States ratification of the Genocide
Convention.
That didn't happen until 1988, almost 30 years after
Lemkin's death.
The convention itself is brief. It recognizes that genocide
is a crime under international law. It defines genocide in the
terms that the Chairman already summarized, and it imposes two
simple obligations--states must prevent and punish genocide.
The first duty, to prevent genocide, begins at home but
transcends national borders. That is, the treaty counts on
states to take measures in their own countries to combat
conditions that are conducive to genocide. But it also
recognizes that the risk of genocide anywhere engages the
responsibilities of states everywhere.
In its first and so far only judgment applying the Genocide
Convention, last February the International Court of Justice
ruled that parties to the genocide convention ``must employ all
means reasonably available to them so as to prevent genocide as
far as possible.''
What is significant about that judgment is that the Court
affirmed that the duty to prevent genocide outside your own
boundaries is not merely aspirational, but is legally binding.
The second duty is the one I am going to focus on in the
rest of my remarks. That is the duty to punish genocide in
situations where we have already failed to prevent it.
Obviously, the two duties are related. If states routinely
punished genocide when it occurred they would dispel the
impunity that sustains people who commit genocide.
The question I would like to address in my remaining time
is whether U.S. law adequately fulfills our obligations of
punishment under the Genocide Convention.
In brief, our law does not go far enough to ensure
prosecution of genocide suspects found in our own territory.
Although, as the Chairman noted, the United States can
prosecute people believed to have committed genocide here or
U.S. nationals thought to have committed genocide abroad, we
cannot bring genocide charges against people who commit
genocide outside our borders and then seek haven here.
The Genocide Accountability Act of 2007, which was
introduced in the House in May, addresses this gap. In my
written testimony, I describe how the principal U.S. law that
implements the Genocide Convention, the Proxmire Act, largely
fulfills the letter of our treaty obligation to ensure that
people who commit crimes of genocide in U.S. territory can be
prosecuted here.
But I have no doubt that if the genocide convention were
enacted today, it would include a provision requiring states
who signed the convention to enact legislation making it
possible to prosecute foreigners in their territory who
committed the crime of group annihilation abroad.
More recent international conventions, such as the
Convention against torture and the Convention against Enforced
Disappearance, routinely include provisions of this sort. In
fact, as a party to the Torture Convention, the United States
has enacted legislation enabling Federal prosecutors to bring
torture charges against aliens suspected of committed torture
abroad who are found in the United States.
Many other countries do the same for genocide and have used
their laws to prosecute perpetrators from Rwanda and the former
Yugoslavia.
Looking beyond our own courts, the United States has played
a leading role in supporting various international courts that
have jurisdiction over genocide, as well as strengthening local
courts in countries that have been ravaged by mass atrocities.
As Mr. Rosenbaum's testimony highlights, legislation
enacted in recent years goes farther, enabling us to
denaturalize, deport or exclude genocidaires. U.S. authorities
can, as he has indicated, prosecute people who lie about their
background in relation to genocide, but they can only do so on
charges such as visa fraud.
An additional advance, but one that also highlights the
limits in our law, is that in 2004 Congress enacted legislation
directing the attorney general, when deciding on legal options
relating to aliens who have in the past been involved in
genocide, to consider options for prosecution. That is, when he
considers legal options he is supposed to consider options for
prosecution.
But there is a glaring problem.
Mr. Scott. Could you summarize the rest of your testimony,
please?
Ms. Orentlicher. Yes. The attorney general's options are
limited, and let me try to illustrate that very briefly by
citing a case that was reported earlier this month in the
Cleveland Plain Dealer.
The case that was described in this news article involved
someone who was prosecuted for lying about his involvement in a
military unit that was connected to the 1995 massacre in
Srebrenica, which has been legally judged to be a genocide.
He was not prosecuted, however, for genocide itself. He was
convicted of lying about his service in this Srebrenica unit.
As the Cleveland Plain Dealer reported, ``Jurors heard little
about the Srebrenica genocide or about Maslenjak's specific
duties.''
Instead, the judge who tried the case ``repeatedly told
jurors that Mskebhaj was on trial for immigration violations,
not war crimes.''
Now, while this case and many others demonstrate our
commitment to ensure that the United States is not a sanctuary
for genocidaires, it also highlights the gap in our law that I
have mentioned before.
Whenever we can deport people to countries where they will
be prosecuted for genocide committed in that territory, we
should, and the United States has made great strides in
strengthening legal systems in countries like Bosnia.
But in other countries that have been ravaged by genocide,
the legal system is in shambles, and let me just quickly say,
for example, in Rwanda, which, at one point, had 130,000
genocide suspects in jail waiting for prosecution, only 11
lawyers survived the genocide.
So while our attorney general is directed to consider
options for prosecutions, very often, when the person in his
hands is a suspected genocide perpetrator, his options are
illusory.
In closing, Mr. Chairman, those who commit genocide count
on our acquiescence, confident that they will not be held
accountable for crimes that we have a hard time even imagining.
The Genocide Convention was meant to shatter that
confidence and transform our enabling silence into mobilized
action, grounded in law. By passing the Genocide Accountability
Act of 2007, Congress would strike a major blow against the
impunity that sustains perpetrators of genocide.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Orentlicher follows:]
Prepared Statement of Diane F. Orentlicher
Mr. Chairman, Ranking Member Forbes, and distinguished members of
this Subcommittee, it is an honor to appear before you. I am especially
grateful for the opportunity to share my views about a subject that
could hardly be more important and consequential--the role of the
United States in combating genocide through the rule of law.
As a party to the Convention on the Prevention and Punishment of
the Crime of Genocide (``Genocide Convention''), which the United
States ratified in 1988, the United States has recognized that genocide
is a crime under international law and has vowed to prevent and punish
it.\1\ Yet we have not always honored our commitment to prevent
genocide when we have been in a position to act, and the principal law
implementing our treaty obligation to punish genocide does not go as
far as it should. In particular, it does not empower U.S. authorities
to bring genocide charges against foreigners who are believed to have
committed genocide abroad and have sought sanctuary in our country. My
remarks this afternoon will focus on this gap, both because of its
significant implications and because of the ease with which this
problem can be fixed.
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\1\ Article I of the Convention provides: ``The Contracting Parties
confirm that genocide, whether committed in time of peace or in time of
war, is a crime under international law which they undertake to prevent
and to punish.''
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As a foundation for my remarks, I would like to place the
significance of current U.S. legislation concerning genocide against
the broader backdrop of our decades-long national struggle to confront
this extraordinary crime.
As a nation, we have at times provided extraordinary leadership in
confronting genocide and other mass atrocities--and, at critical times,
we have faltered or failed when our consciences should have summoned us
to respond to a real-time campaign of extermination.
In our failures, we have scarcely stood alone. Every genocide that
has been allowed to take place--or to continue unchecked once under
way--represents an indelible stain on global conscience. For every
State that has the capacity to counter the consuming carnage
constituting genocide has a responsibility to do what it can to stop it
in its tracks.
LEMKIN'S LAW-MAKING GENOCIDE AN INTERNATIONAL CRIME
This point may seem morally obvious, but it was an uphill struggle
even to make genocide a crime in international law, much less to assure
implementation of that law. Raphael Lemkin, the Polish scholar who
devised the word genocide and then campaigned relentlessness for a
treaty outlawing it, thought it unthinkable that international law did
not criminalize violence whose aim is to obliterate a human community,
not because of something they had done but because of who they are--
members of a religious community, an ethnic clan or a racial group. In
fact, Lemkin realized, this all-too-familiar crime of annihilation did
not even have a name that captured its unique depravity.
Lemkin gave the crime a name, fashioned from the Greek word genos,
meaning race or tribe, and the Latin root for killing, cide. It took
longer, however, to persuade world leaders to outlaw genocide, although
Lemkin campaigned relentlessly to make this happen. For Lemkin, it was
essential to confront genocide through law--not an all-too-fragile code
of conscience, but an enforceable law of humanity. Thus Lemkin would
have been gratified by the premise implied by the name of this hearing,
``Genocide and the Rule of Law.''
Lemkin's tireless crusade culminated in 1948 when the fledgling
United Nations General Assembly adopted the Convention on the
Prevention and Punishment of the Crime of Genocide. But Lemkin did not
live long enough to see his adoptive country, the United States, become
a party to the treaty. Lemkin died in 1959, 29 years before the United
States ratified the Genocide Convention.
THE GENOCIDE CONVENTION
The Convention itself is brief, imposing just two principal duties:
In its first article, the treaty confirms that genocide is a crime
under international law which States parties undertake to both to
prevent and to punish. Before the treaty elaborates on these two
obligations, Article II sets forth what has become the authoritative
definition of genocide under international law.
To those who are unfamiliar with this area of law, the treaty's
definition of genocide may seem surprisingly narrow. To constitute
genocide, a perpetrator must have committed at least one of five
enumerated acts and must have done so with the very specific and narrow
intent to destroy, in whole or in part, a national, ethnic, racial or
religious group ``as such.'' It is not enough that the perpetrator
killed a large number of people who share, say, a common ethnic
affiliation. Instead, the perpetrator must have intended through his
acts to destroy the ethnic group itself, in its entirety or in
substantial part.
The five acts constituting genocide when committed with genocidal
intent are:
(a)
Killing members of the targeted group;
(b)
Causing serious bodily or mental harm to members of that
group;
(c)
Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction;
(d)
Imposing measures intended to prevent births within the
group; and
(e)
Forcibly transferring children of the group to another
group.
THE DUTY TO PREVENT GENOCIDE
As noted earlier, the first duty imposed by the Genocide Convention
is to prevent genocide. For countries that have ratified the treaty,
including of course the United States, this means not only taking
action to combat conditions that are conducive to genocide in their own
societies, but also taking effective action to stop genocide when they
see it taking place beyond their shores. In short, the Convention
recognizes, wherever genocide occurs, it engages the responsibility of
countries' everywhere to take action in their power to bring it to an
end.
THE DUTY TO PUNISH GENOCIDE
The second duty assumed by parties to the Genocide Convention is to
punish genocide when it occurs. The Convention provides not only that
individuals committing genocide ``shall be punished,'' but also that
conspiracy to commit genocide, direct and public incitement to commit
genocide, attempt to commit genocide and complicity in genocide ``shall
be punished.'' \2\ Of particular relevance to this hearing, the
Convention requires States parties to enact legislation to give effect
to the treaty, particularly by providing ``effective penalties for
persons guilty of genocide'' or related acts, such as attempting to
commit genocide.\3\
---------------------------------------------------------------------------
\2\ Article IV, read in conjunction with Article III.
\3\ Article V.
---------------------------------------------------------------------------
The two obligations imposed by the convention--to prevent and to
punish genocide--are related, of course: If each country made good on
its promise to punish genocide whenever it occurred, the scope for this
horrific brand of carnage would be radically diminished.
UNITED STATES RATIFICATION AND IMPLEMENTATION OF THE GENOCIDE
CONVENTION
Once the United Nations adopted the Genocide Convention, it took
the United States another forty years to ratify it. Congress paved the
way for U.S. ratification in 1988 by enacting the Genocide Convention
Implementation Act of 1987, known as the Proxmire Act for the Senator
who (like Lemkin) tirelessly campaigned on behalf of the Genocide
Convention--this time for U.S. ratification.
It is the duty to punish genocide that the United States sought to
implement through the Proxmire Act. That act, codified in section 1091
of title 18 of the United States Code, makes it a federal crime to
commit genocide; to attempt its commission; or to directly and public
incite others to commit genocide when the offense is committed in the
United States or the alleged offender is a U.S. national.
When read together with other provisions of the federal criminal
code concerning conspiracy and complicity, the Proxmire Act for the
most part fulfills the legislative obligations concerning punishment
set forth in the Genocide Convention. In fact, by making genocide a
crime when committed abroad by a U.S. national, the Proxmire Act goes
farther than what is required by the explicit text of the treaty.
Article VI of the Genocide Convention explicitly requires prosecution
only by the State in which genocide occurs or by an international
criminal court, while not excluding other venues for prosecution.
GAPS IN U.S. LAW
But if the Proxmire Act largely fulfilled the explicit legislative
obligations relating to punishment imposed by the Genocide Convention,
both the treaty itself and our implementing legislation have become
anachronistic in light of broader developments in international
criminal law during the past two decades. More important, our legal
framework is not sufficient to ensure punishment of individuals who
commit genocide and then seek sanctuary in this country.
Let me first explain why the framework of prosecution reflected in
current U.S. law is anachronistic. Specialized human rights treaties of
more recent vintage than the Genocide Convention, such as the 1984
Convention against Torture and the 2006 Convention on Enforced
Disappearance, require States parties to establish their criminal
jurisdiction over persons suspected of committing the core treaty
crime--torture, for example, or enforced disappearance--not only when
the crime was committed in their own territories or by one of their
nationals, but also when it was committed outside their territories,
even when the victims were not their nationals, when the alleged
perpetrator is in their territory and is not extradited for trial in
another jurisdiction or transferred to an international tribunal.
States have long recognized that this option--that is, the ability
to prosecute foreign nationals who have committed atrocious crimes
abroad--must be available, not as a tool of first resort but instead
one of last resort. For obvious reasons, this option must be available
in situations where a person believed to have committed a crime of
global concern enjoys impunity in the country where he or she committed
her crimes and no other appropriate forum is available for prosecution.
What has changed in recent decades is a markedly greater willingness by
States to exercise jurisdiction in these situations. This change is
reflected, among other ways, in the approach taken in the two treaties
I just mentioned.
Several developments have led a significant number of countries to
adopt or enforce legislation establishing jurisdiction over genocide,
wherever committed, if the perpetrator is in their territory. The
developments underlying this trend include, tragically, the 1994
genocide in Rwanda and ``ethnic cleansing'' in the former Yugoslavia,
which included the 1995 Srebrenica genocide. These and other recent
episodes of mass atrocity gave rise to the creation of several
international tribunals, starting in 1993. To our credit, the United
States took the lead in establishing these tribunals and has provided
crucial support to their operation.
The very establishment of these tribunals signaled a new
international resolve to ensure that perpetrators of atrocious crimes
would be prosecuted, and helped nurture an expectation that they would
in fact face the bar of justice. Yet none of these tribunals would be
able to prosecute more than a small fraction of perpetrators. In this
setting, some countries began to prosecute perpetrators of mass
atrocities, including genocide, who had sought haven in their
territories.
In contrast, the United States cannot prosecute foreigners who have
committed international crimes other than torture and various acts of
terrorism and then seek sanctuary here. Remarkably, we can prosecute a
foreigner for torture but not genocide. Thus, if we discover that a
notorious alleged perpetrator of the 1994 genocide in Rwanda is living
in the United States--and in fact this has happened--our genocide law
does not allow federal prosecutors to bring genocide charges against
the suspect; we can only deport him.
During the past eleven years, we have narrowed the impunity gap
created by this loophole in our law, but we still have not done nearly
enough. For example, a law enacted in 1996 \4\ permits the United
States to transfer individuals indicted by either the International
Criminal Tribunal for Rwanda or the International Criminal Tribunal for
the former Yugoslavia, both of which have jurisdiction over genocide,
to the relevant tribunal, and the United States has done so. But the
Rwanda and Yugoslavia tribunals are in wind-up phase: they are no
longer taking on new cases, and they never had the capacity to try more
than a fraction of the atrocities that led to their creation.
---------------------------------------------------------------------------
\4\ National Defense Authorization Act, Pub. L. No. 104-106,
Sec. 1342, 110 Stat. 486 (1996).
---------------------------------------------------------------------------
In 2004, Congress took another important step by amending our
immigration law to expand grounds for denying admission to and
excluding aliens on human rights grounds.\5\ Congress also directed the
Attorney General, when considering appropriate action against aliens
believed to be responsible for certain offences that include genocide,
to give ``consideration'' to ``the availability of criminal prosecution
under the laws of the United States'' or ``of extradition . . . to a
foreign jurisdiction that is prepared to undertake a prosecution'' for
the conduct that may underlie removal or denaturalization.\6\ While
this is an important acknowledgment that persons suspected of genocide
should be prosecuted in an appropriate jurisdiction, the Attorney
General's options are unwisely limited.
---------------------------------------------------------------------------
\5\ 8 U.S.C. Sec. Sec. 1182(a)(3)(E)(ii), 1227(a)(4)(D).
\6\ 8 U.S.C. Sec. 1103(h)(3).
---------------------------------------------------------------------------
As I have already noted, under current law the United States cannot
prosecute a foreign national for genocide committed abroad, even if the
victims included U.S. citizens. As for extradition to a foreign
jurisdiction, in countries that have recently been scourged by genocide
the judiciary is likely to be in shambles. Consider Rwanda. The Rwandan
government estimates that over half a million people participated in
the 1994 genocide and at one point had jailed some 130,000 suspects.
Yet when the 1994 genocide was over, only eleven Rwandan lawyers
reportedly survived. While estimates vary, at least 60,000 suspects are
still believed to be in custody awaiting trial in Rwanda on charges
relating to the 1994 genocide.
And so when the Attorney General is directed to consider options
for prosecuting a genocidaire in our midst, his options may prove
largely illusory.
The Genocide Accountability Act of 2007, which was adopted by
unanimous consent in the Senate and has been introduced in the House,
would fill the most significant gap in our law against genocide: It
would make it possible for federal prosecutors to issue genocide
indictments against foreign nationals who allegedly committed genocide
abroad and then sought sanctuary here.
In doing so, the legislation would hardly break new legal ground,
even under United States law. As a party to the 1984 Torture
Convention, the United States enacted legislation \7\ enabling U.S.
courts to exercise criminal jurisdiction when the alleged offender is a
U.S. national or when he or she ``is present in the United States,
irrespective of the nationality of the victim or alleged perpetrator.''
Last December, the United States brought its first indictment under
this law.
---------------------------------------------------------------------------
\7\ Torture Convention Implementation, codified at 18 U.S.C.
Sec. Sec. 2340-2340B.
---------------------------------------------------------------------------
Nor would the Genocide Accountability Act of 2007 establish the
United States as a forum of first resort for prosecuting genocidaires
found in our territory. We would still be able to extradite a genocide
suspect for trial abroad in a forum that may be more appropriate than
the United States. But what the proposed law would do is enable U.S.
prosecutors to ensure prosecution of those who have committed one of
the most serious crimes imaginable when there is no realistic prospect
of a fair prosecution in another forum. In doing so, we would strike a
powerful blow against the impunity that encourages atrocious crimes.
CONCLUSION
Those who commit genocide count on our acquiescence, confident that
they will not be held to account for crimes that we can scarcely bear
to imagine. The Genocide Convention was intended above all to shatter
the confidence of genocidaires, transforming our enabling passivity
into mobilized action grounded in law. Yet the United States is now
legally disabled from taking one of the more effective steps we could
and should take to deal with genocidaires in our own midst--bringing
them to justice. By passing the Genocide Accountability Act of 2007,
Congress would make a major contribution in combating the impunity that
sustains genocidaires.
Mr. Scott. Thank you.
Mr. Fowler?
TESTIMONY OF JERRY FOWLER, UNITED STATES HOLOCAUST MEMORIAL
MUSEUM, WASHINGTON, DC
Mr. Fowler. Thank you, Chairman Scott and distinguished
Members of the Subcommittee, for this opportunity to address
one of the most urgent problems confronting humanity, the
problem of genocide.
Your leadership on this issue is vitally important, and I
thank you for it.
I have the privilege of being the director of the Committee
on Conscience at the United States Holocaust Memorial Museum,
and one of the ways in which the museum seeks to honor the
memory of those who suffered in the holocaust is working to
prevent and stimulate effective responses to contemporary
genocide.
This key aspect of our living memorial was part of the
original vision articulated by Elie Wiesel and the President's
commission on the holocaust in 1979, who saw the need to
prevent genocide as an obligation of a holocaust memorial. As
they put it, ``A memorial unresponsive to the future would
violate the memory of the past.''
Today, we are confronting genocide in the Darfur region of
Sudan. It is a massive catastrophe and a hugely complex one, as
well. It is vital to acknowledge the complexity, but not lose
sight of the moral contours of the situation, and the moral
contours are these.
Hundreds of thousands of civilians have perished and over
two million have been driven from their homes. Thousands of
women and girls have been raped and hundreds of thousands of
lives are hanging in the balance, even as we speak today.
The primary responsibility for this catastrophe rests with
the government of Sudan. Not only has that government
manifestly failed to protect its citizens from this massive
violence, in the vast majority of cases, the government has
actually instigated it.
In May 2004, I went to Chad and traveled along the Chad-
Sudan border, meeting refugees from Darfur, listening to their
stories, seeing the incredibly harsh desert into which they had
been driven. And I should add that at that point in time, the
people in Chad were receiving international assistance, but the
government in Sudan was still blocking international aid and
assistance to people driven into the desert who were not able
to leave Darfur.
One day near the end of that trip, I met a woman named
Hawa. I interviewed her in the small makeshift hut she had
constructed out of sticks and some plastic sheeting that the
U.N. had given her.
We were inside this hut along with her four children, an
elderly woman, and my translator. Outside it was well over 100
degrees and inside, the atmosphere was oppressive. She told me
about the day her village was attacked. She told me that her
father was killed, her brother was killed, a cousin was killed,
30 people in her village were killed that day, and her mother
disappeared.
And I have to admit that I suddenly felt overwhelmed by her
suffering and by all the suffering that I had heard from
refugees day after day after day, and I felt compelled to get
out of that hut.
So I thanked her for sharing her story and I started to
crawl out, when she started talking in a low voice. And I
looked over at her and tears were streaming down her cheeks and
she was asking, ``What about my mother? What about my mother? I
don't know if she is alive or if she is dead.''
And I felt as though she was asking me for an answer, which
I couldn't possibly give her. All I could think to do was to
ask her her mother's name and promise to bring her name back to
Americans. And her mother's name is Khadiya Ahmed. Khadiya
Ahmed.
So I am telling you that name and telling you that as vast
as this catastrophe is, as genocide always is, as many people
as it has affected, it is also about one woman who didn't know
where her mother was and probably won't until there is peace
and security in Darfur.
One thing that I have come to believe with all my heart is
that what we do, whether we act or remain indifferent has an
effect on those around us. If we are silent, others believe
silence is permissible, perhaps even necessary. If we speak
out, others will be encouraged to speak out.
As Elie Wiesel has said many times, ``Silence only helps
the perpetrators, never the victims.''
In the main hall of the Holocaust Memorial Museum is
inscribed a passage from the book of Isaiah, ``You are my
witnesses.'' This passage works on several levels. Most
obviously, it is underscoring the fact that visitors to the
museum are themselves becoming witnesses to the enormity of the
holocaust.
That passage from Isaiah also is a challenge, a challenge,
using the present tense, to imply a continuing obligation on
all of us to bear witness to the crimes and injustice of today,
as well as the crimes and injustice of yesterday.
The Holocaust Memorial Museum has been an essential part of
and has helped stimulate a burgeoning constituency of
conscience that is standing up and speaking out for those whose
lives are hanging in the balance.
Citizens from all walks of life have joined together to say
that they will not stand silently by while genocide happens on
their watch, and more join that constituency every day. They
are standing up and bearing witness and shaping society by
their reactions.
That constituency of conscience is growing, and any
political leader who ignores its voice does so at his peril. By
authorizing the creation of the Holocaust Memorial Museum, a
memorial to victims of a particular genocide, Congress placed
in the metaphorical heart of our nation the memorial core of
Washington, DC, the universal principle that indifference to
genocide is not an American value.
Living up to this principle is an enormous task, but not an
impossible one, and the challenge that faces each and every one
of us is to transform that principle into a practical reality.
Thank you.
[The prepared statement of Mr. Fowler follows:]
Prepared Statement of Jerry Fowler
Chairman Scott, Ranking Member Forbes, distinguished members of the
subcommittee, thank you for this opportunity to address one of the most
urgent problems confronting humanity--the problem of genocide. As my
testimony will make clear, your leadership on this issue is vitally
important and I thank you for it.
I have the privilege of being the director of the Committee on
Conscience at the United States Holocaust Memorial Museum. As you know,
the Holocaust Memorial Museum is our national memorial to victims of
the Holocaust, a public-private partnership supported both by the
Federal government and the generous donations of thousands upon
thousands of ordinary Americans. In the relatively brief period that it
has been open, it has achieved worldwide stature as a steward of
Holocaust memory and a voice of moral authority.
One of the ways in which we seek to honor the memory of those who
suffered in the Holocaust is by working to prevent and stimulate
effective responses to contemporary genocide. This key aspect of our
living memorial was part of the original vision articulated by Elie
Wiesel and the President's Commission on the Holocaust back in 1979. In
their report to President Jimmy Carter recommending the creation of a
national memorial, they noted that of all the issues they looked at,
none was more perplexing or more urgent than trying to prevent future
genocide. And they saw the need to prevent genocide as an obligation of
a Holocaust memorial. As they put it, ``a memorial unresponsive to the
future would violate the memory of the past.'' Memory, in other words,
imposes obligations.
Events since the Museum opened in 1993 have proved the sad wisdom
of the Commission's words. Even as the Museum was being dedicated in
April 1993, mass violence was being used against civilians in Bosnia as
the former Yugoslavia disintegrated. That violence did not incite an
effective international response, but it did bring us a new euphemism
for genocide and crimes against humanity: ``ethnic cleansing.'' And
before it was over, in July 1995, the world witnessed the worst single
massacre on the European continent since the end of the Holocaust, near
a place called Srbrenica. More than 7,000 Bosnian Muslim men and boys
who had taken refuge with their families in a so-called ``UN safe
area'' were separated from their wives and daughters and sisters and
handed over to the Bosnian Serb military, who proceeded to
systematically execute them. The two individuals most responsible for
that massacre, incidentally, Radovan Karadzic and Ratko Mladic, are
still at large even though they have been under indictment by the
International Criminal Tribunal for the former Yugoslavia for more than
a decade.
A year to the month after the Museum opened, in April 1994,
genocide began in the tiny central African country of Rwanda. In 100
days, as many as 800,000 people were murdered in a campaign that was
planned and executed by extremist leaders of the country's Hutu
majority. And I want to emphasize that it, like all genocides, was
planned and executed. It was not ancient tribal hatreds erupting. It
was not, as was suggested at the time, what ``those people do from time
to time.'' It was a conscious crime, organized by human beings making
deliberate choices. Three out of every four members of the Tutsi
minority were slaughtered. Mass rape of Tutsi women was also used as
part of the program of destruction, as indeed it was in Bosnia as well.
These events confirmed, if such confirmation was necessary, that
genocide and related crimes against humanity did not end with the
Holocaust. Far from it. The willingness of political leaders to use
mass violence against civilians to achieve their goals is an ever
present menace to humanity and will be so long as those leaders believe
that their crimes will be met with indifference and impunity.
The juxtaposition of Bosnia and Rwanda with the opening of the
Holocaust Memorial Museum gave added urgency to a question facing the
Museum's leadership--how should the nation's Holocaust memorial respond
when genocide or related crimes against humanity threaten today? The
Museum's governing Council, recalling the Presidential Commission's
view of the obligations of memory, concluded unanimously that silence
was not an option. It created a Committee on Conscience to guide the
Museum's genocide prevention and response activities--in short, to
alert the national conscience to threats of genocide and related crimes
against humanity.
But all of this begs the larger question: what is our
responsibility--collectively and individually, whether we be private
citizens or public servants--when genocide is threatened or actually
occurring?
To answer that question, let me start by invoking the work of Ervin
Staub. He was a young boy in Hungary who was rescued from the Nazis by
Raoul Wallenberg, the courageous Swedish diplomat who rescued thousands
of Hungarian Jews, including a distinguished member of this House,
Congressman Tom Lantos. Today, Staub is a psychologist at the
University of Massachusetts-Amherst. He has written a classic work
about the Holocaust and mass violence called The Roots of Evil. In it,
he asks, as a psychologist, how did this happen? In a chapter on
bystanders, he explained that
[b]ystanders, people who witness but are not directly affected by
the actions of perpetrators, help shape society by their reactions. . .
. They can define the meaning of events and move others toward empathy
or indifference. They can promote values and norms of caring, or by
their passivity or participation in the system they can affirm the
perpetrators.
That is a powerful truth he has articulated: ``People who witness .
. . help shape society by their reactions. . . . They can promote
values and norms of caring, or . . . they can affirm the
perpetrators.''
What we do, whether we act or remain indifferent, has an effect on
those around us. If we are silent, others believe silence is
permissible, perhaps even necessary. If we speak out, others will be
encouraged to speak out. As Elie Wiesel has said many times, silence
only helps the perpetrators, never the victims.
In the main hall of the Holocaust Memorial Museum is inscribed a
passage from the book of Isaiah, ``You are my witnesses.'' This passage
works on several levels. Most obviously, it is underscoring the fact
that visitors to the Museum are themselves becoming witnesses to the
enormity of the Holocaust.
It also echoes the explanation that General Dwight Eisenhower gave
for insisting on visiting newly liberated camps. ``I made the visit
deliberately,'' he said, ``in order to be in a position to give first
hand evidence of these things if ever, in the future, there develops a
tendency to charge these allegations to propaganda.'' Witness, in other
words, protects against the distortion or denial of history.
Finally, the passage from Isaiah is a challenge--a challenge--using
the present tense to imply a continuing obligation on all of us to bear
witness--to the crimes and injustice of today as well as the crimes and
injustice of yesterday. And as Professor Staub says, ``People who
witness help shape society by their reactions.''
Today, we are confronting genocide in the Darfur region of Sudan.
It is a massive catastrophe, and a hugely complex one as well. It is
vital to acknowledge the complexity, but not lose sight of the moral
contours of the situation. And the moral contours are these: hundreds
of thousands of civilians have perished, and over two million have been
driven from their homes. Thousands of women and girls have been raped.
And hundreds of thousands of lives are hanging in the balance even as
we speak today. The primary responsibility for this catastrophe rests
with the government of Sudan. Not only has that government manifestly
failed to protect its citizens from this massive violence, in the vast
majority of cases the government has actually instigated it.
In May 2004, I went to Chad and traveled along the Chad-Sudan
border, meeting refugees, listening to their stories, seeing the
incredibly harsh desert into which they had been driven. The daily
temperatures at that time of year rose to 115 to 120 degrees. On many
days there was a sandstorm, cutting visibility to a hundred yards. One
day near the end of that trip, I met a woman named Hawa. I interviewed
her in the small makeshift hut she had constructed out of sticks and
some plastic sheeting that the UN had given her. We were inside this
hut along with her four children, an elderly woman and my translator.
Outside it was well over 100 degrees, and inside the atmosphere was
oppressive.
She told me about the day her village was attacked. She told me
that her father was killed, her brother was killed, a cousin was
killed. Thirty people in her village were killed, and her mother
disappeared.
I have to admit that I suddenly felt overwhelmed by her suffering,
by all the suffering I had been witnessing in those days and felt
compelled to get out of that hut. I thanked her for sharing her story
and started to crawl out, when she started talking in a low voice. I
looked over at her, and tears were streaming down her cheeks. She was
asking, ``What about my mother? What about my mother? I don't know if
she is alive or if she's dead?''
I felt as though was asking me for an answer, which I could not
possibly give her. All I could think to do was to ask her her mother's
name and promise to bring her name back to Americans. Her mother's name
is Khadiya Ahmed--actually a common woman's name in Darfur. So I'm
telling you that name, and telling you that as vast as this catastrophe
is, as many people as it has affected, it also is about one woman who
didn't know where her mother was and probably won't until there is
peace and security in Darfur.
The Holocaust Memorial Museum has been an essential part of, and
has helped stimulate, a burgeoning constituency of conscience that is
standing up and speaking out for those whose lives are hanging in the
balance. We joined with colleagues to found the Save Darfur Coalition
and worked with a tireless group of Georgetown students to help them
launch Students Taking Action Now: Darfur (STAND), which now has
expanded to hundreds of campuses worldwide. Citizens from all walks of
life have joined together to say that they will not stand silently by
while genocide happens on their watch and more join every day. They are
standing up and bearing witness and shaping society by their reactions.
That constituency of conscience is growing, and any political leader
who ignores its voice does so at his peril.
By authorizing the creation of the Holocaust Memorial Museum, a
memorial to victims of a particular genocide, Congress placed in the
metaphorical heart of our nation--the memorial core of Washington, DC--
the universal principle that indifference to genocide is not an
American value. Living up to this principle is an enormous task, but
not an impossible one. And the challenge that faces each and every one
of us is to transform that principle into a practical reality.
Mr. Scott. Thank you.
Ms. Smith?
TESTIMONY OF GAYLE E. SMITH, SENIOR FELLOW, CENTER FOR AMERICAN
PROGRESS, WASHINGTON, DC
Ms. Smith. Good afternoon, Mr. Chairman, and thank you for
the invitation to testify.
I am not testifying here today as a lawyer. I am one of the
few people in Washington who is not an attorney. I am here as a
practitioner and base my remarks and views on having spent
considerable time in the field where I have seen genocide up
close and personal, and as a former policymaker, where I
grappled with it in government.
The Genocide Accountability Act, in my view, is of extreme
importance, first and foremost, as a matter of principle. U.S.
prosecutors have jurisdiction over cases involving terrorism
and torture, even if the action occurred outside the United
States.
Logic demands that if tortures can be held accountable in
U.S. courts, so, too, must the perpetrators of genocide. But
equally as important, I think it is good policy, and I want to
briefly outline five reasons why I think that is so.
First, it reinforces our commitment to the rule of law and,
in particular, lends weight to the convention on the prevention
and punishment of the crime of genocide, a genocide that has
been weakened by the world's modern failures and is in
desperate need of practical application.
Second, it will contribute to breaking the cycle of
impunity. Genocides often occur in cycles. What we saw in
Rwanda in 1994 was not the first of its kind.
Third, by an enacting legislation that will amend our laws
to hold the perpetrators of genocide to account, we send a
real-time signal to perpetrators of genocide today that there
is a mechanism for accountability and a cost for their actions.
One of the challenges we face in Darfur right now is that
the government and its proxy forces in the militia believe that
there is no cost for their actions. This is a small, but
extremely significant signal that, yes, indeed, there is a
price to be paid.
Fourth, as a matter of policy, it puts us on the road
starting to act on the responsibility to protect, the doctrine
that posits that government can't or won't protect its own
people, the international community will act. It is a doctrine
that embraces our common humanity, but one that is, at present,
empty. This one move can start to put flesh on the bones of the
doctrine that might signal to the rest of the world that we
stand for and believe and hope in their futures.
But, finally, Mr. Chairman, at the end of the day, this
will make a difference in people's lives. You may recall a case
in the 1990's where a young Ethiopian woman working as a
cleaner in a hotel in Atlanta stood before the elevator, and
when the doors opened, she was facing the man who had tortured
her during a period in that country's history known as the
``red terror.''
She called her friends who were held with her and confirmed
his identity. She had them sneak a peak at him from behind
closed doors. They confirmed that this was the man that had
held them upside down, prodded them with electrical wires, and
tortured them repeatedly for weeks.
Because of our law, they were able to bring him to trial on
grounds of torture in the United States. Because of our law,
they won. The woman said afterwards that she had remained quiet
for 15 years, and when she won, she said, ``Before, when I saw
him, I was tied up and hanging upside down. But this time, I am
standing up and facing him. I don't have to be afraid of him.''
She went on to say that ``This is everybody's case and not
just mine.''
Mr. Chairman, genocide knows no borders. This is not just
someone else's case or someone else's crime. It is ours, and I
am encouraged that we will soon act to make that so.
Thank you.
[The prepared statement of Ms. Smith follows:]
Prepared Statement of Gayle E. Smith
Mr. Scott. Thank you. And I want to thank all of our
witnesses for their testimony.
We will now recognize Committee Members for questions for 5
minutes. Then I will recognize myself for the first 5 minutes
and start with Mr. Rosenbaum.
The present jurisdiction for prosecutions for genocide, how
do they compare with the present jurisdiction for torture?
Mr. Rosenbaum. As has been said by other witnesses, in the
case of genocide, the crime has to have been committed either
within the United States or by a United States citizen for a
Title 18 genocide prosecution.
That, of course, doesn't cover extradition and removal and
other tools that are available to us.
In the case of torture, the perpetrator has to be either in
the United States or a U.S. national abroad.
Mr. Scott. And if they are in the United States, they can
be prosecuted for the torture that happened abroad.
Mr. Rosenbaum. Yes, Mr. Chairman.
Mr. Scott. Now, you have found people who allegedly
committed genocide in the United States and you have prosecuted
them, but not for genocide, is that right?
Mr. Rosenbaum. There have, as of yet, been no Title 18
prosecutions for genocide.
Mr. Scott. But you have been able to prosecute them for
other things.
Mr. Rosenbaum. Yes, sir.
Mr. Scott. In some cases, you have been able to extradite
them back to the country of origin and they can get prosecuted
there, right?
Mr. Rosenbaum. Yes, Mr. Chairman.
Mr. Scott. OKAY. What new law do you need to be able to
prosecute them here?
Mr. Rosenbaum. Well, I am not in a position, this being an
oversight hearing, to offer an opinion on legislation that is
needed. Obviously, there is the Genocide Accountability Act
that has been mentioned.
Mr. Scott. Let me ask, without giving an opinion, would the
Genocide Accountability Act give you the jurisdiction that
would allow the prosecution in the United States?
Mr. Rosenbaum. It would not give us any jurisdiction over
people who are in the United States who already participated in
genocide, but, yes, in future cases, future genocides, there
would be some number of cases presumably where individuals come
here and we would then have jurisdiction to prosecute.
Mr. Scott. Let me make sure I understand this. You are
saying that genocide that has already occurred would not be
prosecutable, but prospectively, they would be subject to
jurisdiction under the Genocide Accountability Act.
Mr. Rosenbaum. As I read that statute, yes, Mr. Chairman.
Mr. Scott. And under that act, when would the court
determine whether or not genocide had occurred? Would that have
to be decided independently by the United Nations or some
independent or would that be decided during the trial itself?
Mr. Rosenbaum. I assume the latter. I don't see any
reference in the statute or in the bill to who makes that
decision. So I assume that it would be the case that it is done
in the manner of other criminal offenses.
Mr. Scott. Thank you. My time is probably up.
The gentleman from North Carolina, Mr. Coble?
Mr. Coble. Thank you, Mr. Chairman.
Good to have you all with us.
Mr. Rosenbaum, let me follow up on the Chairman's question,
to be sure I understand it.
Is it true that we cannot indict someone for genocide if it
was committed outside the United States, even if the victim or
the accused is an American citizen?
Mr. Rosenbaum. We can indict, Congressman, if the
perpetrator is an American citizen.
Mr. Coble. Now, what benefit will be forthcoming if H.R.
2489 is passed? Which I happen to think is a good piece of
legislation, by the way.
Mr. Rosenbaum. Well, I am not here to, with respect,
Congressman, to opine on benefits. I can say what the statute
would do, and I say that because there is, at this point, no
formal Administration position on the bill.
That having been said, of course, the Department of Justice
broadly supports the goals of bringing genocidaires to justice.
Mr. Coble. I think the goals are indeed commendable.
Let me try maybe a modified extension of the other
question.
Can we indict one for torture, material support for
terrorism, terrorism financing, and hostage-taking if these
acts occur outside of the United States' territorial boundary?
Mr. Rosenbaum. I am not an authority on all of those
statutes, Congressman. I do know something about the torture
statute and generally about terrorism offenses, and so the
answer to your question is, so far as I know, generally, yes.
Mr. Coble. Professor, is it your belief that H.R. 2489, if
enacted, is constitutional?
Ms. Orentlicher. I can't think of any reason why it
wouldn't be constitutional.
Mr. Coble. I am sure some naysayers probably will find some
reason for it. But as I said before, I think this is a good
approach, and I embrace it warmly.
Mr. Fowler, if enacted, the bill at hand, and, also, Ms.
Smith, what impact would it have upon other countries, in your
opinion?
Mr. Fowler. Well, I think on an issue like this, in
particular, the United States sets a standard for what other
countries do, and countries look at our practices, for better
or for worse, in modeling their own behavior. So I think it
would set a standard.
Mr. Coble. I would think it would not negatively impact.
Would you concur with that?
Mr. Fowler. Yes, sir.
Mr. Coble. Ms. Smith?
Ms. Smith. Yes. And I would simply add that for countries
that may, in fact, at present, be committing acts of genocide,
it would send the reverse signal, and I think cause them to
think twice both, obviously, before sending people here
believing they can seek safe haven in the United States, but
also, again, understanding the United States will impose a cost
for their action.
Mr. Coble. I got you. Thank you all for your testimony.
I yield back, Mr. Chairman.
Mr. Scott. Thank you.
The gentleman from Georgia, Mr. Johnson?
Mr. Johnson. Thank you, Mr. Chairman.
I would like to commend the members of the panel for your
work in this very important field, which is often something
that is taken for granted, perhaps, by persons who have never
been victimized or even understand what genocide is.
Certainly, I am sure that your work doesn't pay a whole lot
and you are not in it for the money, you are in it for this
pursuit of justice. And so I must commend you for your
involvement in this area.
I would take the opportunity to make sure that the public
at large knows what genocide actually is. In 1948, the United
Nations General Assembly adopted the convention on the
prevention and punishment of the crime of genocide, and it
imposes two core obligations on participating states.
First, states parties undertake to prevent genocide and,
second, they commit to punish genocide, as well as several
related acts, such as attempting to commit genocide.
And in 1987, Congress enacted legislation to bring U.S. law
into conformity with the genocide convention and the genocide
convention defines genocide as one of five enumerated acts,
when they are committed with the intent to destroy, in whole or
in part, a national ethnical, racial or religious group, as
such.
The acts that constitute genocide, when committed with this
very specific intent, are the killing of members of the group;
B, causing serious bodily or mental harm to members of that
group; C, deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction; D,
imposing measures intended to prevent births within the group;
and, E, forcibly transferring children of the group to another
group.
To constitute genocide, these acts must be undertaken with
the aim of destroying the targeted group or a substantial part
of that group, as such.
Having said that, I would like to ask how many countries
have adopted legislation establishing jurisdiction over
genocide. Anyone could answer.
Ms. Orentlicher. I don't know the exact number, but quite a
few countries have for some time been able to do that. An
increasing number of states in recent years have adopted
legislation that enables them to prosecute genocide that occurs
outside their territory.
During the 1990's, a number of countries, including
Germany, prosecuted people for genocide committed during the
conflict in the former Yugoslavia and in Rwanda.
Those events, in fact, provided one of the main impetuses
for countries to either enforce statutes they had had on the
books for a long time but had not an occasion to use, or to
pass legislation that they suddenly saw a need for.
In the wake of these conflicts, refugees were having
experiences much like the type of experience Ms. Smith
described in Atlanta. They would see the people who had
committed genocide enjoying refuge in Germany, for example, and
they would say, ``This is the person who participated in the
genocide that claimed my family.''
And so prosecutions have taken place in a number of
countries. So we are not, unfortunately, in the lead on this,
but it is not unusual to have this kind of legislation.
Mr. Johnson. Now, Ms. Smith, the case that you spoke of in
Atlanta, was the person who was spotted by the victim, was he
actually prosecuted or was it a civil proceeding, a civil suit?
Was it a criminal prosecution?
Ms. Smith. No. It was a civil suit. But I think,
interestingly, I was living in Africa at the time and I will
tell you that the story of that suit spread across the
continent like wildfire. It was known in Ethiopia, it was known
in Rwanda, it was known in the Congo, it was known in Sudan.
And, again, it may seem a small and single suit, but it is
one that sent a message I believe prosecutions for genocide
would also do.
Mr. Johnson. Certainly. Was there any reason why that
individual was not prosecuted criminally?
Ms. Smith. I would have to defer to my colleagues, who are
lawyers. Do you know?
Ms. Orentlicher. We have had a law, I think it is for about
10 years, that enables us to bring--this was the law that was
discussed earlier--that enables us to bring torture
prosecutions against foreigners particularly in these kinds of
situations.
It has been difficult to develop the evidence to bring
those cases, and so far there has actually been only one
prosecution instituted for torture as a crime under the law.
The first indictment was brought last December.
Mr. Johnson. Did you have something to add, sir?
Mr. Rosenbaum. I am generally familiar with that case, and
I believe it was the case and, of course, it is a torture case,
not a genocide case--that the crimes took place before our
Federal torture statute in Title 18 went into effect, which was
in November 1994.
Mr. Johnson. Have there been any genocide prosecutions in
the United States, that you know of, Mr. Rosenbaum?
Mr. Rosenbaum. No, Congressman, there have not.
Mr. Johnson. And what would be the reason for that?
Mr. Rosenbaum. In general, our approach has been to
extradite and remove individuals believed to have taken part in
genocide to the countries in which those crimes took place, so
that the people of those countries can judge the perpetrators,
the alleged perpetrators, and see up close justice being done.
There are, as has been mentioned, as well, the terms of the
statute which have to be satisfied in order for us to be able
to prosecute.
Mr. Scott. The gentleman's time has expired.
Mr. Johnson. Thank you.
Mr. Scott. The gentleman from Ohio, Mr. Chabot?
Mr. Chabot. Thank you very much, Mr. Chairman.
I want to thank the witnesses for their testimony here this
afternoon. I know we have a vote on the floor, so I will try to
be relatively brief.
Two months ago, I was in Darfur with a couple of my
colleagues, Sheila Jackson Lee from Texas and Adrian Smith from
Nebraska. We went to a refugee camp. Abu Shouk was where we
were, which is in, actually, northern Darfur, and we obviously
learned a lot.
We have been following this, to the degree that one can in
Congress when you are on the other side of the world, but
seeing it firsthand is something else. And it really is, to my
knowledge, one of the greatest human tragedies that we have
seen in many years on earth, really, 200,000 to 400,000 people
having lost their lives, 2.5 million people who have been
displaced either over into Chad or in camps within Darfur
itself.
And, of course, there are 6,000 troops there, African Union
troops. The hybrid force is going to be going in there, but the
Sudanese government seems to be dragging its feet, finding
excuses to draw this process out, and now there have been
attacks on NGO folks and people just trying to help are being
attacked.
Some of it seems to be banditry, car-jackings and the rest.
Some of it seems to be really intimidation. But as you all
know, what ultimately happened is you had the--typically, what
would happen is you would have a village that would be bombed,
either by plane or helicopter, and then the Janjaweed would
come in shortly after on horseback or on camels and would rape
and pillage and destroy.
And the horrors that took place and the stories that we
heard, and you have all heard them, as well, Mr. Fowler, in
particular. You mentioned what you saw in the camps in Chad.
My question is, and I have got a number of them, but I will
just limit it to one at this point, the Janjaweed was
essentially used by the government----
Mr. Scott. If the gentleman would suspend for just a
minute.
Mr. Chabot. I would be happy to.
Mr. Scott. There is a situation outside the door. I would
ask people not to use these two doors for a few minutes.
The gentleman can----
Mr. Chabot. To what extent could government officials in
Sudan or leaders in the Janjaweed be subject to either existing
laws or this legislation, if it would become law, and how could
that be a tool for improving conditions on the ground, I guess
is pretty much what I wanted to go to.
Ms. Smith?
Ms. Smith. Sure. There are members of the government, a
member of the Janjaweed militia, as well as, in fact, one of
the rebels who had been indicted by the international criminal
court. So there are cases internationally, but they have been
indicted for crimes against humanity and not genocide.
In our case, given that both the executive branch and the
Congress have deemed this crisis genocide, I would think that
it would be possible to, on that basis, be able to either move
against or at least question some senior government officials
by virtue of their presence in the United States.
I think the other thing that it would do, quite frankly,
is, again, reinforce this notion that there is a cost. It is an
extraordinary thing. For almost 5 years, over two million
people have been ripped from their homes. Women have been
raped. Their communities have been destroyed.
It goes on. There is now more violence in the camps. It is
absolutely unchecked. I was out there just a couple of weeks
ago, and it grows worse by the day.
But, quite frankly, the government and the militia forces
have gotten away with it. The signal from the international
community is it is really a shame, but never mind.
So, again, I think that this does offer us the opportunity
to say to the Sudanese government, as the United States
government, ``We are serious about this, you will not find safe
haven in the United States and if, indeed, you commit acts of
genocide, we will hold you accountable.''
I don't think it is enough to tip the balance. I do think
it is enough to, at least around the edges, force them to
recalibrate their calculations.
Mr. Chabot. Thank you. I would just note that even in the
camps, as you mentioned, the people aren't really safe. There
is gunfire at night that scares the heck out of the kids. You
have got men coming in over the walls or over the fences and
intimidating and attempting to rape women in the places and, of
course, when they go out for firewood, they are subject to the
Janjaweed.
I think Mr. Rosenbaum wanted to say something. Then I will
yield back after him, if I can.
Mr. Rosenbaum. Thank you, Congressman.
If I might add, perpetrators in Darfur will know that this
is not a country in which they have any possibility of finding
safe haven. As Ms. Smith noted, our cases are reported in
Africa and around the world.
We have a very robust program that we run in conjunction
with our partners at Immigration and Customs Enforcement (ICE),
an extraordinary partnership in excluding perpetrators of
genocide, war crimes, and crimes against humanity, identifying
any who might come here and bringing whatever legal action we
can, usually with the goal of removing them to a place in which
they can be prosecuted criminally.
But when we can prosecute criminally here, that is almost
always the preferred recourse and the one to which we turn.
I would note that the Assistant Attorney General in charge
of the Criminal Division, Alice Fisher, recently appointed a
counsel solely to handle these kinds of cases, to advise her, I
should say, on these kinds of cases.
We have had a Criminal Division since well before World War
II, and this is the first time, the first Administration in
which someone has been designated to serve in that capacity,
and I think it is a very good indication of the Justice
Department's commitment to ending impunity.
Mr. Chabot. Thank you. Thank you, Mr. Chairman.
Mr. Scott. The gentleman's time has expired.
The gentleman from Virginia, Mr. Forbes?
Mr. Forbes. Mr. Chairman, I would yield my time to the
Chairman.
Mr. Scott. I just had one follow-up question, Mr.
Rosenbaum, and that is you had indicated that the Genocide
Accountability Act may not cover past acts of genocide.
This being just a jurisdictional bill, why would that be
subject to ex post facto consideration?
Mr. Rosenbaum. I should be careful and say that I am not
speaking on the basis of having seen an analysis of the bill,
but rather just on my assumption as a career Federal
prosecutor, that a bill that covers or that renders people
prosecutable has to be prospective, lest it violate the ex post
facto clause of the United States Constitution.
But we have two other lawyers here, one of whom is a law
professor, and I haven't conferred with them. I don't know what
their view would be.
Mr. Scott. Do either of the law professors have a different
view on that?
Ms. Orentlicher. I have not seen an analysis of this issue
either, and I am not sure how it would come out. As you
suggest, this could be seen as simply a jurisdictional bill
and, certainly, under international law, there would not be any
retroactivity issues.
That is, the prohibition of retroactive punishment under
international law does not bar prosecuting someone for
genocide, which has long been established as a crime under
international law.
This llegislation, as you suggest, would provide another
forum for prosecuting something that is already criminal. But I
also would not be surprised if Mr. Rosenbaum's assumption about
letislative intent were correct.
Mr. Scott. We will do an analysis then. Appreciate the
answers.
Are there any other questions?
If there are no further questions, the hearing standards
adjourned at this point. If someone could ascertain whether or
not the hall has been opened.
Pending that, the Committee hearing is now adjourned. I
thank the witnesses for their testimony.
[Whereupon, at 2:37 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Maxine Waters, a Representative in
Congress from the State of California, and Member, Subcommittee on
Crime, Terrorism, and Homeland Security
I thank Chairman Bobby Scott and Ranking Member Randy Forbes for
organizing this hearing on ``Genocide and the Rule of Law.''
GENOCIDE AND THE LAWS OF THE UNITED STATES
In 1948, the United Nations General Assembly adopted the
``Convention on the Prevention and Punishment of the Crime of
Genocide,'' also known as the Genocide Convention.
The Genocide Convention requires states to make efforts to prevent
genocide as well as punish acts of genocide. The purpose of today's
hearing is to discuss ways to update and revise U.S. laws to allow us
to prosecute genocide more effectively, when we have the opportunity to
do so.
Under current law, the United States cannot prosecute a person for
an act of genocide, unless the act was committed within the United
States, or unless the alleged offender is an American citizen. In
contrast, many other federal crimes, such as torture, hostage taking,
and terrorism financing, allow extraterritorial jurisdiction for crimes
committed outside the United States by non-U.S. nationals. The Justice
Department reportedly has identified individuals who are living in the
United States and who participated in the Rwandan and Bosnian
genocides. However, the Justice Department cannot arrest or prosecute
these individuals, because they are not American citizen and the
genocides in which they participated did not take place in the United
States.
In order to close this loophole, my colleague from California,
Congressman Howard Berman, introduced H.R. 2489, the Genocide
Accountability Act of 2007. Congressman Berman's legislation amends the
federal criminal code to allow the prosecution of acts of genocide
committed by an alleged offender who is a permanent resident of the
United States, or who is brought into or found in the United States,
even if the offense occurred outside the United States. I am proud to
support H.R. 2489, and I ask Congressman Berman to add my name as a
cosponsor.
GENOCIDE IN DARFUR
Even as we speak at this hearing, a genocide is being committed in
Sudan against the people of Darfur. More than 200,000 people have been
killed by Sudanese government forces and armed militias since 2003, and
another 200,000 people have died as a result of the deliberate
destruction of homes, crops and water supplies and the resulting
conditions of famine and disease. More than 2.5 million people have
been displaced.
According to a recent United Nations report, attacks against
humanitarian aid workers have increased 150 percent in the past year.
There are 13,000 humanitarian aid workers in Darfur, providing aid to
more than 4 million people, and violence limits their ability to reach
people in need. In June, approximately one in six humanitarian convoys
leaving the capitals of Darfur provinces were ambushed by armed groups.
About two-thirds of the population of Darfur is dependent upon these
courageous aid workers and the aid they bring.
Early in 2006, I visited the Darfur region with my good friend from
California, Speaker Nancy Pelosi, and I was deeply disturbed by what I
saw. As far as the eyes could see, there were crowds of displaced
people who had been driven from their homes, living literally on the
ground with nothing but little tarps to cover them. That was almost two
years ago, and yet this genocide has been allowed to continue.
SUDAN LEGISLATION
I introduced H.R. 3464, the Stop Importing Gum Arabic from the
Genocidal Government of Sudan Act. This bill would tighten economic
sanctions against Sudan by eliminating an exemption for gum arabic. Gum
arabic is a substance derived from a plant with a variety of commercial
uses. Gum arabic is plentiful in Sudan, and the United States imports
an estimated 4,000 to 5,000 tons of Sudanese gum arabic every year,
despite the government of Sudan's continuing genocide against the
people of Darfur. I introduced this bill because I believe it is time
for the United States to get serious about stopping this genocide. This
bill is cosponsored by Congressman Howard Berman and Congressman Barney
Frank.
I also introduced H.Res. 628, a resolution to express the sense of
Congress that the President should take action to boycott the Olympic
Games in China, unless the Chinese government acknowledges and condemns
the genocide taking place in Darfur and ends its military and economic
support for the government of Sudan. China is the world's largest
supplier of military arms and equipment to Sudan, and Sudan is using
these supplies to commit genocide in Darfur. I introduced this
resolution because I believe that the spirit of the Olympics is not
compatible with any actions directly or indirectly supporting genocide.
This resolution is cosponsored by another one of my colleagues from
California, Congressman Dana Rohrabacher.
CONCLUSION
Genocide is a heinous and despicable crime, which contradicts all
of the values we in America hold dear. We must use every tool at our
disposal to stop genocide from occurring and to hold those who commit
genocide responsible for their actions. I look forward to the testimony
of the witnesses and the suggestions they have for improving our
ability to prevent and prosecute genocide wherever and whenever it
occurs.
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman, for convening this important hearing on
``Genocide and the Rule of Law.'' The hearing is particularly important
since it will explore how Congress can develop and revise laws to
respond more vigorously to prosecute genocide. In particular, the
hearing will examine how the United States can more effectively
implement its obligations as a party to the Genocide Convention.
Mr. Chairman, its is very sad that the 20th century which excelled
in technological innovation and great accomplishments in arts and
letters will most likely be remembered for events which tragically
symbolized the man's inhumanity to man. The genocide in Rwanda, the
Armenian genocide, the Holocaust, the Khmer Rouge genocide to ,name a
few ,showed us the excesses of totalitarian regimes and the
monstrosities of efforts to annihilate entire ethnic, racial and
religious groups.
Sadly, the trend is continuing with the deplorable situation in
Darfur, a region I had an opportunity to visit recently and witness
first-hand the plight of the Darfurians who are victims of the
systematic annihilation attempt supported by the Government of Sudan.
Not since the Rwandan genocide of 1994 has the world seen such a
systematic campaign of displacement, starvation, rape, mass murder, and
terror as we are witnessing in Darfur for the last three years. At
least 400,000 people have been killed; more than 2 million innocent
civilians have been forced to flee their homes and now live in
displaced-persons camps in Sudan or in refugee camps in neighboring
Chad; and more than 3.5 million men, women, and children are completely
reliant on international aid for survival.
Unless the world stirs from its slumber and takes concerted and
decisive action to relieve this suffering, the ongoing genocide in
Darfur will stand as one of the blackest marks on humankind for
centuries to come.
Efforts to prevent genocide and prosecute its perpetrators are an
important measure of the reaction of the civilized world to this
barbaric phenomenon. In that sense, the 1948 Convention against
Genocide lead the way to confront this phenomenon and create a legal
basis to combat it.
In 1948, the United Nations General Assembly adopted the
``Convention on the Prevention and Punishment of the Crime of
Genocide.'' \1\ As its title suggests, the treaty imposes two core
obligations on participating states: first, state parties undertake to
prevent genocide; and second, they commit to punish genocide as well as
several related acts, such as attempting to commit genocide. In 1987,
Congress enacted legislation to bring U.S. law into conformity with the
Genocide Convention.
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\1\ Convention on the Prevention and Punishment of the Crime of
Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, 280.
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The Genocide Convention contains a number of substantive
provisions. The Genocide Convention establishes our core obligations in
combating the genocide phenomenon--preventing and punishing Genocide.
The document gives the UN a broad license to deal with genocide. In
addition, individual states are expected to do all they can to prevent
genocide. It also gives responsibility to state parties to prosecute
the perpetrators of genocide.
Mr. Chairman, I speak for many Americans when I say that the US
should do it's very best to prosecute the crime of Genocide. The
Proxmire Act is a valiant legislative effort to fulfill the spirit of
the Genocide Convention.
The ``Proxmire Act'' (The Genocide Convention Implementation Act of
1987) is the key U.S. law implementing the Genocide Convention. When
read together with other provisions of the federal criminal code
concerning conspiracy and complicity, the Proxmire Act addresses the
explicit obligation set forth in Article VI of the Genocide Convention
concerning prosecution of genocide and related criminal acts in courts
of the State where genocide occurs. In addition, the Proxmire Act makes
it a federal crime for a U.S. national to commit genocide anywhere.
The number of civil wars accompanied by ethnic cleansing and
outright genocide which charter zed the end of the 20th century
anywhere from Bosnia-Herzegovina to the civil wars in Somalia and
Liberia produced a number of perpetrators of genocidal acts who ended
up on American shores. This fact revealed a shortcoming in our current
laws under which, the United States cannot indict someone for genocide
committed outside the United States, even when the victim is an
American citizen, unless the perpetrator is a U.S. national.
In contrast, the laws on torture, material support for terrorism,
terrorism financing, hostage taking, and many other federal crimes
allow for extraterritorial jurisdiction for crimes committed outside
the United States by non-U.S. nationals.
Realizing this legal gap in our obligations to prosecute
perpetrators of Genocide I commend my colleagues Mr. Berman and Mr.
Pence for introducing the Genocide Accountability Act., H.R. 2489 in
May of 2007.
Mr. Chairman, this legislation would close a legal loophole that
prevents the U.S. Justice Department from prosecuting people in our
country who have committed genocide. The bill specifically amends Title
18 to establish federal criminal jurisdiction over the crime of
genocide wherever the crime is committed. This jurisdiction should be
exercised when the alleged offender is present in the United States and
he or she will not be vigorously and fairly prosecuted by another court
with appropriate jurisdiction.\2\
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\2\ The loophole in genocide law has real-life consequences. The
Justice Department has identified individuals who participated in the
Rwandan and Bosnian genocides and who are living in the United States
under false pretenses. Under current law, these individuals cannot be
arrested or prosecuted, because they are not U.S. nationals and the
genocides in which they were involved did not take place in the United
States.
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Many countries have adopted or enforced legislation establishing
jurisdiction over certain international crimes, including genocide,
wherever committed if the alleged perpetrator is in their territory and
any additional requirements are satisfied. This will be a further step
in the right direction so that no perpetrator of Genocide living on US
soil can go unpunished and a good step toward fulfilling our duty to
remove this deplorable phenomenon from the face of earth.
Thank you, Mr. Chairman for convening this important hearing and I
look forward to hearing from our distinguished witnesses. I yield back
the balance of my time.