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S. HRG. 110–786 

FROM NUREMBERG TO DARFUR: ACCOUNTABILITY 

FOR CRIMES AGAINST HUMANITY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JUNE 24, 2008 

Serial No. J–110–102 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW

RICHARD J. DURBIN, Illinois, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

RUSSELL D. FEINGOLD, Wisconsin 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

TOM COBURN, Oklahoma 

JON KYL, Arizona 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

JOSEPH ZOGBY, Chief Counsel 

MARY CHESSER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma, prepared 

statement .............................................................................................................. 41 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 1 

prepared statement .......................................................................................... 43 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisonsin .............. 18 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 68 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 4 

WITNESSES 

Cheek, Joey, Co-founder and President, Team Darfur, Greensboro, North 

Carolina ................................................................................................................ 11 

Hari, Daoud, Author, The Translator: A Tribesman’s Memoir of Darfur, Baltimore, Maryland .................................................................................................... 6 

Orentlicher, Diane, Professor, Washington College of Law, American University, Washington, D.C. ......................................................................................... 9 

Smith, Gayle, Co-Chair, ENOUGH Project, Washington, D.C. ........................... 7 

QUESTIONS AND ANSWERS 

Responses of Daoud Hari to questions submitted by Senator Durbin ................ 25 

Responses of Diane Orentlicher to questions submitted by Senators Durbin, 

Coburn and Whitehouse ...................................................................................... 28 

SUBMISSIONS FOR THE RECORD 

Ardouny, Bryan, Executive Director, Armenian Assembly of America, Washington, D.C., statement and attachment ............................................................ 35 

Cheek, Joey, Co-founder and President, Team Darfur, Greensboro, North 

Carolina, statement ............................................................................................. 38 

Farrow, Mia, Actress and Activist, Bridgewater, Connecticut, statement .......... 46 

Hari, Daoud, Author, The Translator: A Tribesman’s Memoir of Darfur, Baltimore, Maryland, statement and letter ............................................................... 50 

Human Rights First, New York, New York, statement ....................................... 61 

Keppler, Elise, Human Rights Watch, New York, New York, statement ........... 64 

Merchant, Pamela, Executive Director, Center for Justice & Accountability, 

San Francisco, California, statement ................................................................. 70 

Nahapetian, Kate, Government Affairs Director, Armenian National Committee of America, Washington, D.C., statement .............................................. 77 

Orentlicher, Diane, Professor, Washington College of Law, American University, Washington, D.C., statement ...................................................................... 80 

Smith, Gayle, Co-Chair, ENOUGH Project, Washington, D.C., statement ........ 87 

(1) 

FROM NUREMBERG TO DARFUR: ACCOUNTABILITY FOR CRIMES AGAINST HUMANITY 

TUESDAY, JUNE 24, 2008 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Subcommittee on Human Rights and the Law, 

WASHINGTON, DC 

The Subcommittee met, pursuant to notice, at 9:59 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Richard J. Durbin, 

Chairman of the Subcommittee, presiding. 

Present: Senators Feingold, Whitehouse, and Specter. 

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

SENATOR FROM ILLINOIS 

Senator DURBIN. The Subcommittee on Human Rights and the 

Law will come to order. 

The subject of this hearing is: ‘‘From Nuremberg to Darfur: Accountability for Crimes Against Humanity.’’ In our first year and 

a half, this subcommittee has broken much new ground. Today is 

another first. This is the first-ever congressional hearing on crimes 

against humanity. 

For generations, the United States has led the struggle for 

human rights around the world. Over 50 years before Nuremberg, 

George Washington Williams, an African-American minister, lawyer, and historian, called for an international commission to investigate ‘‘crimes against humanity’’ in the Congo, which was then 

ruled by Belgium’s King Leopold II. 

Under Leopold’s iron fist, Congo’s population was reduced by 

half, with up to 10 million people losing their lives. In a letter to 

the U.S. Secretary of State, Mr. Williams decried the ‘‘crimes 

against humanity’’ perpetrated by King Leopold’s regime. Those 

who are interested in this touching story should read King 

Leopold’s Ghost, which is a great book that I recommend. 

Over 50 years later, in the aftermath of World War II, the 

United States led the first prosecutions for crimes against humanity in the Nuremberg trials. The promise of Nuremberg is that the 

perpetrators of mass atrocities will be held accountable for their actions. 

As we have in previous hearings, I am going to preface this hearing with a short video to provide some context for our discussion 

on accountability for crimes against humanity and historical U.S. 

support for holding perpetrators of these crimes accountable. 

[Whereupon, a video was shown and the text follows:] 

2 

‘‘From 1993–1945, the Nazi regime killed approximately 6 million 

European Jews. Over 250,000 Roma were murdered. At least 

200,000 mentally or physically disabled individuals were 

‘euthanized.’ 

Under U.S. leadership, the Allies established war crimes tribunals to prosecute the Nazi perpetrators. Crimes against humanity 

were first defined in the Nuremberg Charter in 1945. 

Sixteen men were found guilty of crimes against humanity in the 

Nuremberg trials, including Hermann Goring, commander of the 

Luftwaffe and the highest-ranking official to order the ‘Final Solution.’ 

Since then, the United States has supported efforts to prosecute 

the perpetrators of crimes against humanity, including Nazi war 

criminals who had escaped accountability. 

In 1961, Adolf Eichmann, the so-called ‘architect of the Holocaust,’ was convicted in Israel for committing crimes against humanity. Michael Musmanno, a U.S. Naval officer and judge at the 

Nuremberg trials, was a key prosecution witness. 

In 1987, Klaus Barbie, the ‘Butcher of Lyon,’ was convicted in 

France for crimes against humanity he committed while heading 

the Gestapo in Lyon. 

With U.S. support, the International Criminal Tribunal for the 

former Yugoslavia has convicted perpetrators of crimes against humanity. 

With U.S. support, the International Criminal Tribunal for 

Rwanda has convicted participants in the Rwandan genocide for 

crimes against humanity. 

With U.S. support, the Special Court for Sierra Leone is prosecuting Charles Taylor, the former president of Liberia for crimes 

against humanity, including murder, rape, sexual slavery, mutilating and beating, and enslavement. 

Three decades after Cambodia’s ‘Killing Fields,’ the first trials of 

Khmer Rouge perpetrators for crimes against humanity are scheduled to begin later this year. 

We have come a long way since Nuremberg, but we must do 

more at home and abroad to fulfill our responsibility to protect innocent civilians from crimes against humanity. 

In Darfur, civilians continue to be attacked, murdered, raped and 

forcibly displaced. 

The perpetrators of these crimes against humanity must be held 

accountable.’’ 

Senator DURBIN. Crimes against humanity are acts of murder, 

enslavement, torture, rape, extermination, ethnic cleansing, or arbitrary detention committed as part of a widespread and systematic attack directed against a civilian population. With far too few 

exceptions, we have failed to prevent and stop these crimes. 

The promise of Nuremberg remains unfulfilled. We have seen 

this most clearly in Darfur in western Sudan. In this region of 6 

million people, hundreds of thousands have been killed and as 

many as 2.5 million have been driven from their homes. There is 

much that must be done to end this carnage in Darfur. Part of the 

solution is arresting and prosecuting the perpetrators. Otherwise 

they will continue to act with impunity and victims will feel they 

have no recourse but to resort to violence themselves. 

3 

For several years, both Democrats and Republicans have criticized the Bush administration for failing to stop the genocide in 

Darfur, and I am sure our witnesses today will urge the administration to do more. But we should give credit where it is due, and 

I especially want to commend President Bush for supporting efforts 

to prosecute the perpetrators of crimes against humanity in Darfur. 

I have had several personal conversations with President Bush 

about this issue and I know that he really feels in his heart, as 

many of us do, that we have a special obligation in this situation. 

Let me be frank. The International Criminal Court is still a 

source of controversy on Capitol Hill, but the administration and 

their allies have set aside their concerns because of the humanitarian crisis in Darfur, and they should be commended for doing 

so. 

Recently, the Chief Prosecutor of the International Criminal 

Court, Luis Moreno-Ocampo, reported to the U.N. Security Council 

that massive atrocities are ongoing and that ‘‘the entire Darfur region is a crime scene.’’ In the meantime, the Sudanese Government 

has put Ahmad Harun, who was indicted by the court for committing crimes against humanity, in a high-ranking position where he 

can continue to threaten victims of the violence in Darfur and humanitarian workers. That is an outrage. 

Following Mr. Moreno-Ocampo’s most recent report to the Security Council, Zalmay Khalilzad, the U.S. Ambassador to the U.N., 

said that the U.S. Government ‘‘strongly believes that those responsible for the acts of genocide, war crimes, and crimes against humanity committed in Darfur must be held accountable and be 

brought to justice.’’ The administration is right. We owe it to the 

victims in Darfur to ensure that those who have perpetrated these 

horrific crimes are held accountable. 

But it is not only Darfur that is a safe haven for perpetrators of 

crimes against humanity. Sadly, it is also our own country. This 

subcommittee’s first bill, which became law in December of 2007, 

closed a loophole in U.S. law that made our country a safe haven 

for perpetrators of genocide. 

But despite longstanding U.S. support for prosecution of crimes 

against humanity perpetrated in World War II, Rwanda, the 

former Yugoslavia, and Sierra Leone, among other places, there is 

no U.S. law prohibiting crimes against humanity. As a result, the 

U.S. Government is unable to prosecute perpetrators of crimes 

against humanity found in our own country. In contrast, other 

grave human rights violations, including genocide and torture, are 

crimes under U.S. law. 

This loophole has real consequences. During our recent hearing 

on ‘‘Rape as a Weapon of War,’’ we discussed the fact that if a foreign warlord who engaged in mass rape came to the United States, 

he would be beyond the reach of our law. 

During our oversight hearing on the U.S. Government’s enforcement of human rights laws, we learned about the case of Marko 

Boskic, who allegedly participated in the Srebenica massacre in the 

Bosnian conflict and still found safe haven in Massachusetts. Because of the gap in our laws, Boskic was charged with visa fraud 

rather than crimes against humanity. Upon learning this, Emina 

Hidic, whose two brothers were among the estimated 7,000 men 

4 

and boys killed in Srebenica, said that ‘‘[t]hey should condemn him 

for the crime.’’ 

By signaling to perpetrators of genocide that they will not find 

a safe haven in the United States, the Genocide Accountability Act 

moved us a little closer to fulfilling our pledge of ‘‘never again.’’ We 

should take the next step and make sure that those who commit 

crimes against humanity cannot escape accountability in America, 

but we must go further and ensure the perpetrators of crimes 

against humanity cannot escape accountability anywhere in the 

world. Only then will the promise of Nuremberg be fulfilled. 

I am honored that Senator Specter has joined us today, and I 

would invite him, if he would like to make an opening comment at 

this time, to do so. 

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

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Well, thank you, Mr. Chairman. Thank you for 

convening this important hearing for the Subcommittee on Human 

Rights and the Law. 

I had not planned to be in attendance, but the Ranking Member 

of the subcommittee could not be here, so I wanted to come and indicate my view of the importance of this hearing. 

Regrettably, Senators are very busy. The absence of Senators 

here today does not indicate a lack of very deep concern on the 

issue, but there are just many other meetings, subcommittee hearings, and full committee hearings in process at this time. 

This issue was one of enormous importance. All you have to do 

is talk about the 2.45 million people being displaced and 450,000 

people killed, and the atrocities are just overwhelming. The regrettable fact of life is, it has become a way around the world, and perhaps especially in Africa at this time. It is hard to view the scene 

in Africa without seeing some ruthless dictator, some ruthless political leader using the most horrific tactics to gain power. Genocide, regrettably, has become a common practice. 

I visited Tanzania in 2002 and have participated, as has the 

Chairman, Senator Durbin, on many, many efforts. There is a lot 

of concern in the Congress and there is a lot of concern on the 

American people. As we all know, there was a large joint A.U./ 

.U.N. task force that was supposed to be developed, 26,000 peacekeepers to go to Darfur, but only about a third of them are there 

and it took a very, very long time to get there. My sense is that 

we have to get a lot tougher about it through the International 

War Crimes Tribunal. That is something that these people will pay 

attention to. 

In 2002, 6 years ago, I visited the International War Crimes Tribunal in Tanzania. There is a man in jail there who was convicted 

of genocide, the first head of state, a man named Jean Kambanda, 

who is serving a life sentence for genocide. That is what we really 

need to do, we really need to marshall our forces. It is a relatively 

recent development in international law to hold people like this accountable for crimes against humanity, a relatively recent War 

Crimes Tribunal in Yugoslavia. 

The United States has been in the forefront, with help from the 

FBI, the CIA, and the investigative agencies and funding. So, I 

5 

thank the witnesses for coming today. I regret that I cannot stay 

too long. But this is a very, very important issue. You see a lot of 

people behind us? They are the staffers, the people who do all the 

work, write the memos, make sure that the Senators know what 

you said so that there can be appropriate follow-through. 

Thank you, Mr. Chairman. 

Senator DURBIN. Thank you, Senator Specter. I appreciate your 

being here. 

We are going to turn to our witnesses now. Unfortunately, one 

of our witnesses, Mia Farrow, had last-minute scheduling difficulties and could not attend. But we are really honored to have four 

excellent witnesses here today. 

Let me ask if the witnesses would please stand and raise their 

right hands to be sworn. 

[Whereupon, the witnesses were duly sworn.] 

Senator DURBIN. Let the record reflect that the witnesses answered in the affirmative. 

Our first witness, Daoud Hari, is the author of a book which I 

was given yesterday. I am going to promote your book here. It’s entitled, The Translator: A Tribesman’s Memoir of Darfur. This is an 

incredible book. It tells the story of Mr. Hari’s life in Darfur, and 

of his travels and struggles. I’m half-way through it, and I promise 

you I will finish it. I commend you, as I said to you personally before, for some of the beautiful images that you create in a book 

about a very terrifying and troubling issue in your home country 

of Sudan and Darfur. 

I believe that you have extraordinary skills and I hope that those 

who feel as intensely about the situation as many of us do will read 

your words. 

Mr. Hari was born in the Darfur region of Sudan. After escaping 

an attack on his village in 2003, he entered the refugee camps in 

Chad and began serving as translator for major news organizations, including the New York Times, NBC, and BBC. 

Mr. Hari was captured in Darfur while working with Paul 

Salopek, a Pulitzer prize-winning journalist at the Chicago Tribune 

and a friend of mine. I didn’t know Mr. Hari at the time, but the 

Chicago Tribune called and asked if I would try to get Mr. Salopek 

out of jail, so we tried to get you all out of jail, and eventually we 

did after more than 30 days of imprisonment. That detention was 

totally unnecessary, and thankfully all of them were released without serious injury or any other retribution. 

Following the release, Mr. Hari became the third of reportedly 

only five Darfuris who have been granted refuge in the United 

States since this crisis began. We talk about 2.5 million displaced 

and hundreds of thousands killed in this genocide, but we have reportedly accepted only five refugees in the United States. Mr. Hari 

now lives in the Baltimore area and advocates for an end to the 

conflict in Darfur. 

Mr. Hari, this issue is personal for you in a way that most of us 

can’t even begin to understand, but I thank you for your courage 

and for sharing your story, and I look forward to your testimony. 

Your entire statement will be made part of the record and I invite you to add at this point anything you would like in the time 

allotted. Please proceed. 

6 

STATEMENT OF DAOUD HARI, AUTHOR, THE TRANSLATOR: A 

TRIBESMAN’S MEMOIR OF DARFUR, BALTIMORE, MARYLAND 

Mr. HARI. Thank you, Chairman Durbin. Thank you to the honorable Members of Congress. Thanks very much for your working 

to end the genocide in Darfur. 

After 5 years since the crisis began in Darfur, I will have to 

thank you again. You let me out from the prison with Paul Salopek 

after 35 days in prison in Sudan, where, as you said, with the dictator, it is very hard to be inside the prison in—and how we have 

been treated for 35 days. 

As some of you know, I am Daoud Hari from north Darfur. I was 

born—my age is 35 years old and I’ve been going to a school in 

Sudan in—and—Darfur. I left Sudan and came back in 2003 and 

what I saw happening to my people in Darfur, how the people were 

treating the government troops and how people were killed in 

Darfur, I stand up to working with the journalists to be able to 

share stories for the journalists. Since I was working as a translator in Darfur, in 2004 I was working with the U.S. Department— 

what you call the CID, which was investigating about the genocide 

in Darfur. They told us the estimated killing in Darfur—400,000 

people have been killed in Darfur. This was in 2004. 

After they left, I tried working with the journalist Paul Salopek 

with the Chicago Tribune, and in the course—new time—U.K., and 

when I was working with the U.K. journalist who’d been in the 

place, there were 81 persons who had been killed 3 days ago. When 

we go over there and we saw the bodies, some of them didn’t have 

even the heads. This is mostly the people who have been captured 

by the—the government in the bush. After that, they killed them 

through the bushes. So we saw the bodies. Some of them, mostly 

10 years or maybe less than 10 years that people were dying over 

there. 

I saw—when I worked with him, we crossed Darfur and we met 

two soldiers who had been captured, child soldiers, 13 years. They’d 

been captured by some of the villagers, the defenders who tried to 

kill them. We interviewed them and I saw one of them. He’d been 

shot by a bullet when he had been beaten very hard, and I was 

able to talk to him and—witness. He showed me some money 

which was the government’s gift to him to come to attack these 

people. 

The areas of the village they were attacking, they were neighborhoods. They would go into a school with children in the school together and they have their animals and camels together. After 

that—began to tell them—Arabs—and they have to be—to defend 

themselves before these people come in to kill any of your people. 

They give them some money and they’re training them for 3 days. 

After 3 days, the child who’s 13 years, maybe if it’s not able to 

carry the gun, it’s mostly the weight of the guns, it’s almost more 

than 5 or 6 kilos. So he comes and they were—they told us what 

is happening, the government, how they treat them and how to 

give them the idea to come to attack the neighborhood and their 

friends. 

After all this, 5 years, when I work in, the people who were responsible for those crimes, now they were free. I appreciate the 

U.S. Government and Europe and the international law they were 

7 

asking to be possible for the court 1 day, but we believe that—now 

they were working outside were free and they were happy—doing 

the same—the same crime in Darfur. Just over the last week of 

May, there’s more than 300 to 3,000 people who have been captured from Darfur. 

Darfur is where living in Khartoum—attacked by the rebels. 

Some of them, they were students in a school in Khartoum and— 

just all—they were Darfuris that were being accused by the government, being they were helping for the rebels. They never saw even 

the rebels in their life and now they were in the prison. The government—them, they give them more than 10 or 15 years in prison. I would like to say thank you for the United States and international law. The laws will be longer for us to be coming 1 day, 

but I will ask and try to ask the international community to stop 

this genocide and to bring those responsible before the court as 

soon as possible. 

Thank you. 

Senator DURBIN. Thank you, Mr. Hari. We’ll have a few questions after the other witnesses have had a chance to speak. 

[The prepared statement of Mr. Hari appears as a submission for 

the record.] 

Senator DURBIN. Our second witness, Gayle Smith, is co-founder 

of the ENOUGH Project to end genocide and crimes against humanity. She’s also a Senior Fellow at the Center for American 

Progress. 

Ms. Smith was based in Africa for over 20 years as a journalist 

covering military, economic, and political affairs for major news organizations, including BBC, Associated Press, Reuters, the Boston 

Globe, and Financial Times. 

She served as a Special Assistant to the President and Senior Director for African Affairs at the National Security Council from 

1998 to 2001, and as Senior Advisor to the Administrator and Chief 

of Staff of the U.S. Agency for International Development from 

1994 to 1998. 

Ms. Smith, thank you again for being here today. Please proceed 

with your testimony. 

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

WASHINGTON, DC 

Ms. SMITH. Thank you, Mr. Chairman. Thank you for convening 

this hearing. I’ve been in government, I’ve been a reporter, I’m now 

here as an advocate. Like the many people behind me, we’re really, 

really appreciative of all you are doing to make sure that the 

United States is on the right side of history when it comes to genocide and crimes against humanity. 

I think as your brief film points out, we’ve made some progress. 

We’ve seen referrals by the United Nations Security Council to the 

International Criminal Court of the case of Darfur, also the Democratic Republic of Congo and Northern Uganda. 

Charles Taylor is in custody. There has been an increase in the 

number of emerging democracies in Africa who are turning over 

those indicted for genocide in Rwanda. But I think the fact that we 

are sitting here today as we enter the sixth year of the crisis in 

8 

Darfur is, in large measure, because the perpetrators have not 

been held to account. 

I think we would all agree that there’s a need for a sustained 

and robust peace process and a desperate need for a viable peacekeeping mission to be deployed to Darfur. But the bottom line is 

accountability. If this Committee can propose legislation that would 

in fact make crimes against humanity a violation of U.S. law, I 

think it would strengthen our ability to enforce accountability 

around the world and strengthen that chain that we need that allows the perpetrators no way out. 

Let me just say a couple of things about the reasons why this is 

so important. In the case of Sudan, we have a government that is 

ruthless, but it is also smart and calculating. They operate on the 

basis of their own interests. To this date, they have no reason to 

believe that there will be any meaningful costs imposed if they continue to perpetrate crimes against humanity against the people of 

Darfur. Yes, there have been indictments, yes, the Security Council 

last week—and importantly, unanimously—demanded that they 

turn the indictees over to the ICC, but they haven’t done it and 

there is no cost. 

We’ve seen with this regime that the only time it acts is when 

it perceives that there are real costs, whether it’s cooperating with 

the United States in the war on terror, whether it was trying to 

get out from under multilateral U.N. sanctions for their complicity 

in an attempt to assassinate the president of Egypt, or in the case 

of the peace agreement in southern Sudan. They knew there was 

a cost and they knew there was no way out. 

Right now they believe, and they have evidence to believe, that 

they can get away with it. Their victims have the evidence to believe that the international community has abandoned them. So by 

strengthening that chain of accountability by amending our laws, 

I think we send a signal and inform the calculations of the perpetrators not just in Darfur, but elsewhere. 

Second, obviously it’s the right thing to do. At a time when the 

United States needs to, as it has throughout our history, stand-up 

and champion the right thing to do, I think also it is important 

that we send the signal as American citizens that we see these 

crimes not just as abuses of their victims, but as violations of our 

common humanity. 

Third, it is in our national interests to do this and to do more 

across the board on accountability, not least because in so doing we 

strengthen the moral foundations from which we lead, but also, 

quite frankly, for reasons of security. We cannot afford the violence 

and instability that we see when these crimes occur. 

Look at Sudan today. It is the largest country in Africa. It is 

bleeding into Chad and the Central African Republic. The future 

of generations has been destroyed, and the ability of that country 

over time to be a stable anchor in the sub-region has been severely 

compromised. 

Finally, by making crimes against humanity a violation of U.S. 

law we uphold the rule of law, and that, Mr. Chairman, is, quite 

frankly, the sledgehammer with which we can attack the cycle of 

impunity. I lived in Sudan for many years. It is a country I was 

just talking to Daoud about that is heartbreaking for many reaVerDate Nov 24 2008 14:22 Apr 07, 2009 Jkt 048219 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\48219.TXT SJUD1 PsN: CMORC
9 

sons, but perhaps none more than the fact that it is one of the most 

friendly, generous peoples I have ever lived with, and that is being 

fundamentally compromised because the rule of law has been 

abused, has been distorted, has been disobeyed. The government of 

Sudan has flouted the will of the international community, the Security Council, the ICC, the government of the United States, and 

others. 

I honestly believe if we take this small but very significant step 

we can remind them that we will, as the United States, hold them 

accountable and further strengthen that chain of accountability 

that we need to make sure that we’re not sitting here again a year 

from now testifying about the crisis in Darfur. Thank you very 

much. 

Senator DURBIN. Thank you, Ms. Smith. 

[The prepared statement of Ms. Smith appears as a submission 

for the record.] 

Senator DURBIN. Our next witness is Diane Orentlicher, who is 

Professor of Law at the Washington College of Law, American University. She’s also co-director of the law school’s Center for Human 

Rights and Humanitarian Law, and was the founding director of its 

War Crimes Research Office, which she headed up from 1995 

through 2004. Professor Orentlicher is currently on leave from the 

Washington College of Law and serving as Special Counsel to the 

Open Society Justice Initiative. 

Described by the Washington Diplomat as ‘‘one of the world’s 

leading authorities on...war crimes tribunals,’’ Professor 

Orentlicher has published and lectured extensively on legal issues 

relating to genocide, crimes against humanity, war crimes, and 

international criminal tribunals. 

Professor Orentlicher received a B.A. from Yale University and 

her J.D. from Columbia Law School. She testified at our first hearing of this subcommittee on ‘‘Genocide and the Rule of Law,’’ and 

she is back again and we appreciate that very much. 

Please proceed with your testimony. 

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

Ms. ORENTLICHER. Thank you, Mr. Chairman. It’s an honor to 

provide testimony before this distinguished body again. I join Gayle 

Smith and others who have noted the extraordinary leadership 

your subcommittee has already provided in the one and a half 

years since its creation. I was, again with others, especially heartened by your leadership and success in introducing, and then shepherding through to enactment, the Genocide Accountability Act of 

2007. 

Its entry into law was truly a landmark, and it significantly 

shrank the space for impunity for those who commit some of the 

worst crimes known to man. But as you noted in your opening remarks, it does not fully discharge our country’s historic commitment to ensure that there is no safe haven for those who commit 

crimes of such savagery and staggering scope as to violate the conscience of humanity. I mean, in particular, that it’s not yet a crime, 

10 

as you noted, to commit crimes against humanity under Federal 

law. 

I think that Americans would be both surprised and disturbed if 

they understood this and understood what it meant. I say this for 

two reasons in particular. One, as you already noted, it was the 

United States above all that ensured that crimes against humanity 

were punishable at Nuremberg. I do not think, without U.S. leadership, we would have seen crimes against humanity become an enforceable crime. 

As your opening video and your opening remarks noted, the 

United States has, since Nuremburg, provided indispensable leadership in ensuring prosecution of crimes against humanity by various international tribunals, as well as by other countries we have 

supported. So it’s quite remarkable that we of all countries don’t 

have a law on our books making it possible to prosecute this crime 

when perpetrators show up in our own territory. 

The second reason I think Americans would be concerned has to 

do with the nature of crimes against humanity. Here, what I have 

in mind is that I believe many people assume—and unfortunately 

incorrectly—that Federal law already criminalizes mass episodes of 

extermination, and that’s because, as you know, Federal law already criminalizes genocide. 

There’s a widespread belief, and it is not accurate, that genocide 

is a crime that encompasses the worst episodes of mass atrocities 

that we know. And yet that’s not true. 

I want to give just two examples to illustrate why, as important 

as it is, our legislation on genocide doesn’t do all that our law 

needs to do. First of all, when we ask people to think about the 

worst atrocities that they can think of that happened in recent decades, everybody’s short list includes the notorious atrocities of the 

Khmer Rouge in the 1970’s in Cambodia. Estimates vary, but at 

least a fifth of the population of the country were wiped out during 

that period of staggering, mindless, unspeakable atrocities. 

There is now a court that’s been established jointly between the 

government of Cambodia and the United Nations to prosecute surviving leaders of the Khmer Rouge. When the prosecutors handed 

down their first indictments, against surviving leaders of the 

Khmer Rouge, they didn’t include genocide in their charges. That 

could change as further indictments are presented, but the point 

will not change: When they issued their first, historic indictments, 

prosecutors were not confident that they could make out a case of 

genocide, even for this infamous episode of mass atrocity 

The principal reason it’s so difficult to make out a charge of 

genocide has to do with the very narrow and rigorous legal requirement of a specific intent on the part of a perpetrator to destroy a 

particular community as such. 

And again, if I could illustrate how challenging and daunting it 

is for a prosecutor to make out this case, let me give you one more 

example. In 2006, the International Criminal Tribunal for the 

former Yugoslavia found one of the most senior leaders of Bosnian 

Serbs responsible personally for the killing of thousands of Muslims and Croats during the period of the worst carnage in Bosnia 

in the 1990’s. The Trial Chamber even found that the crimes deliberately targeted Muslims and Croats. Despite these findings, the 

11 

court was unable to find that the defendant had genocidal intent. 

There was, however, a charge that the court believed fit this crime, 

and that was the charge of crimes against humanity. 

So, again, the point is clear. If we want to be in a position to 

deter those who commit the most atrocious crimes, we must make 

it a crime under Federal law to commit crimes against humanity. 

Thank you, Mr. Chairman. 

Senator DURBIN. Thank you, Professor Orentlicher. 

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

Senator DURBIN. Our fourth witness today is Joey Cheek, cofounder and president of Team Darfur, an international coalition of 

athletes committed to raising awareness about, and bringing and 

end to, this crisis. You’re going to remember his name when I tell 

you a little bit more about him. 

Mr. Cheek represented the United States as a member of the 

men’s Speed Skating Team at the 2006 Olympics, and after winning gold in the 500-meter race and silver in the 1,000-meter race, 

he donated the $40,000 award to Right to Play, an international 

aid organization focused on bringing the benefits of sport and play 

to the most disadvantaged children in the world. 

Time Magazine named Mr. Cheek one of their ‘‘100 People Who 

Shape Our World.’’ He’s currently a student at Princeton University. Mr. Cheek, I thank you for being with us today and invite you 

to testify. 

STATEMENT OF JOEY CHEEK, CO-FOUNDER AND PRESIDENT, 

TEAM DARFUR, GREENSBORO, NORTH CAROLINA 

Mr. CHEEK. Thank you. Chairman Durbin, Ranking Member 

Coburn, and honorable members of the committee, it is my pleasure and an honor to be asked to submit a brief testimony on such 

a weighty issue as human rights and accountability. I’m certainly 

not an expert on the legal intricacies of international accountability, I’m simply a student and an athlete. But in those positions 

I’ve had experiences that I feel are unique. 

In 2006, after 17 years of preparation, I became the Olympic 

champion in my chosen sport of speed skating. After spending 

years traveling around the world as an athlete representing the 

United States, my eyes opened to a tragedy that was occurring in 

a part of the world that I felt was vastly under-reported in my 

home country. That tragedy was the mass killings occurring in 

Darfur, Sudan. 

For more than 2 years now I have continued to try and raise 

awareness about the horrible atrocities faced by so many innocents 

in Darfur. I founded a coalition, Team Darfur, to bring together 

like-minded athletes to bring awareness to the abuses that are occurring. I have spoken in front of groups of thousands and I’ve 

traveled to Chad to visit first-hand with refugees driven from their 

homes in Darfur. 

Like all of us here today, I’m appalled by the suffering that these 

innocents have gone through. The numbers of people killed in 

Darfur is as massive as the worst of natural disasters. However, 

unlike the loss of life and home that occur when natural disasters 

12 

strike, these vicious crimes are the result of conscious and willful 

effort by a group of people. 

Over the last five years in the deserts of Darfur, almost every 

day men make the decision to aim a gun at the head of an innocent 

and pull the trigger. They make the decision when they storm into 

a village to rape women over and over again, and then they make 

the decision to burn that village to the ground and drive every living thing out into the desert to starve to death. 

In Khartoum, the capital of Sudan, decisions are being made 

every day that are every bit as vile as those made in the field. Officials of the government empower these savage acts on men, women 

and children. They arm these militias. As Daoud would say, they 

pay these militiamen to slaughter innocents and they use military 

aircraft to bomb civilians. Then they make the decision that they 

can destroy a group of people simply because they do not want 

them around. 

When I first became aware of Darfur, my intention was only to 

try and raise a bit of awareness, and perhaps raise a little bit of 

money for relief. I felt that once people knew what was happening 

throughout the world in this region, that this crisis would somehow 

magically stop. What I’ve come to realize is that it takes much 

more than awareness. In the face of crimes such as these, people 

must be willing to fight back. We must be willing to fight back. It 

doesn’t always mean picking up a gun and charging into the fray, 

but using every available tool at your disposal to bring these murders and rapists to justice. 

The situation in Darfur was complex and has become increasingly so, but complexity cannot conceal the fact that throughout 

this conflict men have consistently made the decision to indiscriminately take the lives of huge numbers of innocent people. For that 

decision there must be accountability. There must be the knowledge throughout the world that, if you willfully destroy the lives 

and homes of innocents, you will be held responsible. 

I hope the Senate will followup on the June 3rd letter to Secretary Rice to ensure that she directs the State Department to take 

advantage of the few remaining days of the U.S. presidency and 

the U.N. Security Council to advocate for the expanded U.N. sanctions against the Sudanese regime. The U.S. has, of course, been 

a leader in using sanctions as a method of accountability for the 

perpetrators of this genocide, but we need to ask the rest of the 

international community to join us in implementing these important measures. 

After hearing the stories of refugees from Darfur, people have 

had to flee their lives because of decisions these individuals made 

to rape and murder. I know there are more than the few people 

now listed on the Treasury Department’s list who are responsible 

for these crimes. I hope the Senate will request that the administration expand the list of specially designated nationals to include 

all parties responsible for the atrocities, most particularly those at 

the highest levels of the Sudanese government. 

Respected individuals from around the world are working tirelessly to ensure that perpetrators of the crime in Darfur are held 

accountable. What I and other athletes who make up Team Darfur 

13 

hope to do is to call upon the international community to observe 

an Olympic truce period for Darfur. 

The Olympic truce originated in ancient Greece, but in recent 

history world leaders have invoked the truce as an opportunity for 

the international community to expand exceptional effort, as athletes do when they’re striving for medals, to create and promote 

peace. 

An Olympic truce for Darfur would only be possible with increased deployment of the U.N. peacekeeping force and a rejuvenated peace process that has the full support of permanent members of the U.N. Security Council. 

If this Olympic truce period is marked by an increased effort by 

the international community to secure peace for the people of 

Darfur, the measures of accountability that this committee hopes 

to pursue, I believe, can be more possible and more effective. 

I was raised to believe that we live in a Nation that values justice. I’ve seen that belief validated time and time again, and I’m 

proud of the work that we as a Nation have done to help the innocents of Darfur. As we all know, there’s much more that we need 

to do. We must continue to lead the international community bring 

justice to the criminals that continue to perpetrate this violence. 

Doing so will not only help the hundreds of thousands of innocent 

people still living in Darfur, but will move one step closer to a place 

where men will know that they face consequences for committing 

these crimes against humanity. 

Thank you. 

Senator DURBIN. Thank you very much, Mr. Cheek. 

[The prepared statement of Mr. Cheek appears as a submission 

for the record.] 

Senator DURBIN. Without objection, we will enter into the record 

a statement from the Chairman of the Judiciary Committee, Senator Patrick Leahy. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Senator DURBIN. And I might just say, as I have before, he graciously allowed the creation of this subcommittee, the first subcommittee to our knowledge in the history of Congress, dedicated 

to human rights and the law. 

We also will enter statements from organizations and individuals, including the Armenian Assembly of America, the Armenian 

National Committee of America, the Center for Justice and Accountability, Human Rights First, and Human Rights Watch. 

Without objection, they will be entered into the record. 

[The prepared statements will appear as a submission for the 

record.] 

Senator DURBIN. Mr. Hari, I’m going to start my questioning by 

asking you what may be an obvious question. As I spoke to President Bush in several meetings about the peacekeeping force and 

the need for us to bring in some outsiders to try to bring peace to 

your country, I told him that it was my feeling that Khartoum 

would resist every step of the way, would find as many obstacles 

as possible to stop the United Nations, or the African Union, or any 

other force from actually coming in on the ground and supervising 

14 

or trying to take control of this vast territory which, as you say in 

your book, is as large as France or Texas. 

Do you have the same impression from your experience in watching the government of Khartoum? Is there any hope there that they 

will open the country to any kind of international participation? 

Mr. HARI. Thank you, Senator. I think if there’s enough pressure 

from the international community to the Sudanese government, 

they will have to accept it. Since I came to the United States, the 

Sudanese government sometimes will say now we will extend— 

peacekeepers from the Security Council, sometimes they were denied because they were playing a game with the international community because they were being governed by the Chinese—in the 

Security Council. But if the United States is working more with the 

Chinese Government and the Arab League, they have to put pressure more for the government of Sudan and they have to accept it. 

I know that what is happening in Darfur, the government of 

Sudan knew that if there’s any international peacekeeper in 

Darfur, especially from Europe and the United States and the 

other countries have—for this, there’s too many responsibility from 

their government people who had done the crimes. So it’s maybe 

holding—will be going to international court one day, so that’s why 

they were delaying to accept some and they did—some time. The 

African peacekeeper—we have in Darfur 7,000—as you know, Senator, I work with them three times in African Union. They aren’t 

able to defend themselves. How come, 7,000, they have to keep 

peace for the— 

Senator DURBIN. Yes. Now, you have seen the refugee camps in 

Chad, you have seen what’s happened to the Darfurians who have 

been forced out of their country. Can you describe the living conditions of those who have been forced to leave? 

Mr. HARI. I, myself, lived for 13—in Chad for 2-years where I 

was staying—I would be visiting. Our living in camps in eastern 

Chad is very hard. Sometimes—Goz Bedi when I was visiting Goz 

Bedi with journalists because there has been attacks by the 

Janjaweed who were coming from Sudan. These special camps 

called Goz Bedi is inside Chad from the Darfur border more than 

180 kilometers, so all this where the—were crossing and they came 

to attack this camp. Since I was visiting there— 

Senator DURBIN. Let me make sure it’s clear. You said 180 kilometers, which would be about 108, 110 miles. The Janjaweed 

would come from Sudan and attack the refugees in the camps in 

Chad. Is that what you’re saying? 

Mr. HARI. Yes. Yes, that’s exactly—about 115 or 110 to 15 miles 

from the Sudan. They were crossing to inside Chad to attack in the 

camp. Sometimes there was a U.S. Ambassador visiting there. People would be very—the children were very afraid. I was talking to 

my people. It was just only a few days maybe from Goz Bedi, you 

can cross to Central Africa and they were talking about, what can 

we should do? We have to go to Central Africa, for example, from 

here to be safe. 

I know there are Central African—the East Central Africa has 

also been attacked by the Janjaweeds, and were even—by the government of Sudan and they were coming in Chad. So we were wondering ourselves when we were coming out from our lands and we 

15 

don’t have peace in Chad because there is no security. So there’s 

no aid workers able to work in the refugees camp because there’s 

no security. 

Senator DURBIN. I’m going to ask one last question before I give 

Senator Whitehouse an opportunity. In your book, you describe the 

attacks. It seemed to me they came from so many different levels: 

the planes overhead dropping bombs—and you described the shrapnel as being pieces of old appliances that had been chewed up and 

put into these bomb casings that explode and kill people—the helicopters, the Janjaweed on horseback and on camels. 

But in your opening here you talked about the child soldiers who 

were involved in this and that was the subject of one of our earlier 

hearings. I might just say for the record, I’m disappointed at this 

point that we don’t have the support of the administration on our 

Child Soldiers Accountability Act, but we are working to try to 

achieve that before the end of the year. 

Tell us about these child soldiers that you’ve seen who were part 

of this devastation and genocide in Darfur. Are they children who 

were stolen away from villages? Are they receiving money, are they 

receiving drugs, as we’ve heard in other parts of Africa? Tell me, 

if you can, the conditions of these child soldiers. 

Mr. HARI. As I mentioned in my book, Senator, when I was captured—by—by the government, which was be paid by the government, and those others my tribe also, speaking the same language. 

Senator DURBIN. Zaghawa. 

Mr. HARI. Yes, Zaghawa. Two children, me, and my driver that 

was taking us, they have orders already from their commander 

they have to shoot us inside the van. When we are—they were 

smoking a cigarette, they have a—and they were less than 14 years 

old, and both of them know me and the families. 

Senator DURBIN. They knew you? 

Mr. HARI. Yeah, they knew me. It—my family, they knew me, 

who I am. They were discussed over there, and they decided they 

don’t wanted to shoot me. I even asked them, don’t shoot me if— 

if you don’t tie my eyes—if you do not tie our eyes, because I don’t 

want to see you—you are shooting me, because, yes, I came yesterday from your family, I saw your mothers or your sisters in the refugee camps. One of them, they said, oh, we decided we don’t want 

to shoot you, Daoud, because we know you and we know your family, and you know us. So if the commander want to kill you, he’ll 

have to kill you himself. But we used to kill the prisoners when a 

prisoner was captured by the rebels. Maybe even people we don’t 

know we can shoot, but we can’t shoot the person we know. 

I said, OK, even you are very children. You’re a child, it’s 14 

years, you don’t know anything about how to shoot the—why you 

have to shoot him? And they said they have orders from their commanders. For example, these people were the enemy for them and 

they don’t know—for example, Senator, they don’t know this children, what is the international law supposed to be the world’s prisoners be killed even if that’s who the Janjaweed or the government 

soldiers. But if they left with those children they were—may very 

easily killed them. They were very easy. They were telling me this. 

You get in this area one cigarette to smoke is more hard than to 

16 

shoot someone in this land. So we can—we can do that’s how we 

are living in Darfur. 

Senator DURBIN. Thank you very much. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. Thank you for 

hosting this hearing. The work of the subcommittee, I think, has 

been very valuable. I know it was your personal desire and wish 

that it be established, and your personal energy that saw to its establishment as the first such subcommittee in the Senate. Once 

again, I think this hearing has proven how wise that course of action was. 

I’m interested in, Professor, particularly how a criminal statute, 

making it an American crime to commit a crime against humanity 

in a foreign country, would work procedurally with respect to the 

trial itself, with respect to efforts to seize the defendant, either before trial or before he or she were convicted? 

Ms. ORENTLICHER. First of all, the basic assumption of my testimony is that jurisdiction would be established only if the defendant 

were in the United States. We would have to have physical custody 

over that person. Unfortunately, it’s not at all uncommon for perpetrators of very serious atrocities to elude detection when they 

come into the United States. An organization that works on this 

issue estimates that there are thousands of perpetrators of very serious atrocities in the United States. Some of them have come to 

a kind of justice when victims of their abuses run into them in the 

United States and are able to file civil actions against the perpetrators. But even when those actions are successful, that is, even 

when a judgment is rendered of civil responsibility for atrocities including crimes against humanity, the perpetrators can remain in 

the United States and not fear prosecution for those same crimes. 

So, that’s one part of it. We would have to— 

Senator WHITEHOUSE. Would you be able to procure an indictment before somebody was in the country or at the very beginning 

of jurisdiction? Could you not even indict while somebody’s abroad? 

Ms. ORENTLICHER. Normally jurisdiction would be established 

when you find someone in the country, but I think it would be a 

mistake to— 

Senator WHITEHOUSE. Indictment would have to follow. You 

wouldn’t be able to indict them. 

Ms. ORENTLICHER. Well, what I was going to say is I would think 

it’s desirable to frame the legislation in a way that allows the possibility of seeking extradition under extraordinary circumstances. 

Perhaps I should say, I don’t assume that the United States should 

be a forum of first resort for prosecution of individuals who commit 

atrocities elsewhere. The United States has long cooperated to ensure prosecution of such crimesin other countries and should continue to do that. But there will be circumstances when this is the 

only place where someone who has committed atrocities that are 

beyond the pale can be seriously prosecuted. 

An example is a helpful founation for my answer to your second 

question: In 1997, Pol Pot, the notorious leader of the Khmer 

Rouge, was suddenly available for prosecution when his own forces 

rebelled against him. The U.S. Government wanted to bring him to 

justice and discovered that our own law didn’t make it possible to 

17 

prosecute him here. The administration at that time tried desperately to find another government that would prosecute Pol Pot 

and was unable to do so before he died a year later. 

In a circumstance like that, the United States should be able to 

seek Pol Pot’s extradition to the United States and prosecute him 

here. Those are exceptional circumstances, but I think it desirable 

that U.S. law provide for that type of possibility. 

Senator WHITEHOUSE. Without that law presently, if it becomes 

known to the U.S. Government that someone who has participated 

in crimes against humanity is passing through a United States airport or one way or another entering the territorial jurisdiction of 

the United States, is there anything that can be done other than 

to refuse entry? 

Ms. ORENTLICHER. We can’t prosecute that person for crimes 

against humanity. We might be able to prosecute them depending 

on the nature of their offenses for torture. We have a statute that 

enables us to prosecute torture wherever it was committed. That 

particular statute has been on the books now for about 14 years, 

and there has so far been only one prosecution under that statute. 

But that would not begin to cover all of the kinds of crimes 

against humanity that are committed, such as enslavement and so 

forth, and generally would not capture the enormity of the crime. 

So, yes, we could deny them entry, we could try to remove people, 

but we don’t have, even in our immigration laws, crimes against 

humanity as such as a basis for removal. 

Senator WHITEHOUSE. And would the idea be that the United 

States would exert its diplomatic pressure to try to expand this 

kind of jurisdiction and this kind of statute throughout the world 

so that people who engage in crimes against humanity find it increasingly difficult to find shelter in any other country? 

Ms. ORENTLICHER. Well, first of all, quite a few other countries 

do have crimes against humanity in their statutes and establish 

the possibility of exercising jurisdiction over perpetrators of crimes 

against humanity. Who come to their country. 

Senator WHITEHOUSE. Any examples of where it’s been done? 

Ms. ORENTLICHER. It’s been done in Germany, I believe Australia. 

Senator WHITEHOUSE. A question for the record. 

Ms. ORENTLICHER. I’d be happy to get back to you on that. 

Senator WHITEHOUSE. That’s for the record then. 

[The information appears as a submission for the record.] 

Ms. ORENTLICHER. It’s happened in quite a number of countries. 

A lot of countries are now in the process of changing their laws so 

that they can prosecute crimes against humanity. The United 

States has provided quite important leadership in helping countries 

that are recovering from mass atrocities to strengthen their own 

ability to prosecute perpetrators, and so the type of leadership you 

described is already happening to some extent. I apologize for repeating myself, but what we can’t do is prosecute perpetrators 

here, and that’s a problem, in part, because often we don’t have a 

place we can extradite people to where they can be prosecuted. 

That’s for the most obvious reason: when crimes against humanity occur almost by definition the country where they occurred has 

descended into a state of wholesale collapse of the rule of law. So 

18 

if it’s possible to send perpetrators back to the country where they 

perpetrated their crimes, that would be ideal; often, though, it is 

not possible. 

The United States has helped countries in the former Yugoslavia 

to institute proceedings in a credible fashion, but that was possible 

only some years after the conflict there ended and it was possible 

for shattered judicial systems in the region to begin to get back on 

their feet. So, of course we should continue to do that, but we 

should always be able, when that’s not possible, to prosecute perpetrators here. I believe it’s shameful that when we find people 

who’ve committed the most staggering crimes our imaginations can 

conjure—and those we can’t even begin to imagine—we prosecute 

them for visa fraud. 

Senator WHITEHOUSE. Well, I appreciate your testimony very 

much and I look forward to working with you and the Chairman 

on the legislation. 

Thank you. 

Senator DURBIN. Thank you, Senator Whitehouse. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman, for holding this 

hearing today. Thanks to the witnesses for testifying before this 

subcommittee on such an important issue. 

I’d like to make some quick comments and then turn to a couple 

of questions. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Over the last century, genocide, ethnic 

cleansing, and crimes against humanity have occurred too frequently, in many cases because the will to stop these atrocities has 

been lacking or far too late in coming. Today, as we watch the 

genocide in Darfur continue to unfold, we are reminded that even 

though the international community has made great strides in addressing such atrocities through the law, there is still a long way 

to go to ensure that this legal framework is adequately developed 

and robustly implemented. 

I have long believed that the protection of basic human rights 

and accountability for human rights abuses must be a cornerstone 

of American foreign policy. The failure to prosecute those guilty of 

crimes against humanity makes it more likely that such crimes will 

be repeated. Accountability must be established in order to overcome long-entrenched cultures of impunity, stem the potential for 

violent retribution, create conditions for meaningful reconciliation, 

and ultimately prevent new rounds of atrocities from occurring. 

While we’ve made some progress in encouraging accountability 

for abuses of human rights, there are loopholes within our own 

legal framework here at home that allow individuals to find shelter 

from prosecution for their unspeakable actions. 

Now, in part because my colleagues have already given such 

careful focus to Darfur during this hearing, let me note one particular example in which the perpetrators of human rights abuses 

in other nations have found shelter on American soil. 

In 1980, four American church women who had been working 

with refugees in El Salvador were brutally murdered by members 

19 

of the Salvadoran National Guard. In command of these men were 

two Salvadoran generals who, although they bear direct responsibility for this atrocity, are currently living in the United States. In 

2002, the generals were found liable in civil lawsuits for acts of torture carried out under their command. Yet, despite having been 

found liable for these terrible crimes, they continue to reside freely 

in Florida. 

Criminal prosecution of these men is hindered by the fact that 

the statute criminalizing acts of torture was not passed until 1994, 

long after these acts were committed. Our immigration laws, however, do allow the United States to deport these men. Inexplicably, 

the Department of Homeland Security has not initiated deportation, despite repeated appeals from Members of Congress. 

It is unacceptable that individuals who are known to be responsible for human rights abuses are allowed to find safe haven in the 

United States. I hope this hearing will help us find ways to hold 

these men, and others like them, accountable for their actions. 

Professor Orentlicher, is there any doubt in your mind that 

United States law generally permits the prosecution of individuals 

for human rights violations like torture, which is prohibited by U.S. 

law, when those violations are committed by others acting under 

their direct command and control—and if there is any doubt, does 

Congress need to step in and fix this problem? 

Ms. ORENTLICHER. There’s no doubt in my mind that the torture 

statute that Congress enacted should be interpreted to cover people 

who exercise effective control over people who committed abuses 

and did not take the reasonable steps necessary to prevent or punish those abuses. 

Unfortunately, as you know, there seems to be some doubt on the 

part of the Department of Justice about whether they can enforce 

the torture statute under that doctrine. So all I can say is, I commend this subcommittee’s leadership in pressing the Department of 

Justice to interpret the statute the way you do. If there is continued reluctance to interpret the torture statute that way, then I 

think it would make sense for Congress to amend the torture statute to make it explicitly clear that command responsibility is a 

basis for prosecuting torture. 

We all know that it’s especially important to send a message to 

those who bear the highest levels of responsibility that they will be 

held to account if abuses occur that they were in a position to stop 

and there should be no doubt about our ability to do that. 

Senator FEINGOLD. Well, let me ask you, then, about these two 

Salvadoran generals who were found liable for torture, yet are currently living in the U.S. As I’m sure you know, U.S. immigration 

law allows the Secretary of Homeland Security to deport someone 

if they are found to have ‘‘committed, ordered, incited, assisted, or 

otherwise participated in either any act of torture or any 

extrajudicial killing.’’ They may also be deported if the Secretary 

of State reasonably determines that their presence would have ‘‘adverse foreign policy consequences’’ and that they were inadmissible 

due to a crime of ‘‘moral turpitude.’’ 

In November 2007 and again in March 2008, my colleagues, Senators Durbin and Coburn, wrote to Secretary Chertoff asking him 

whether he planned to deport these generals. Both times they reVerDate Nov 24 2008 14:22 Apr 07, 2009 Jkt 048219 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\48219.TXT SJUD1 PsN: CMORC
20 

ceived the response that the Secretary is reviewing the facts of the 

case to determine whether deportation is appropriate. 

Given your knowledge of the case and the applicable law, is there 

any reason why it should take 7-months to decide whether non-citizens who have been found liable for acts of torture should be deported? 

Ms. ORENTLICHER. All I can say is, it’s mind-boggling. If I recall 

correctly, they’ve been in the United States for almost 20 years. 

The U.S. Government has had long enough to figure out that these 

people do not—should not, under any understanding of our law, 

enjoy the privilege of lawful residence in this country. 

Senator FEINGOLD. Thank you, Professor. 

Thank you, Mr. Chairman. 

Senator DURBIN. Thank you, Senator Feingold. 

Mr. Cheek, I’d like you to explore with us a little bit more of this 

concept of an Olympic truce. You are not calling for a boycott of the 

Olympic Games. Is that true? 

Mr. CHEEK. Correct. Obviously having been a participant in two 

Olympics, and really I think my world view having been shaped by 

the Olympic Games, what an incredible experience it was for me. 

I still believe, as idealistic as it may sound, that the Olympics can 

be a great force for promoting peace and promoting justice throughout the world. 

What we believe, and there’s some historical precedent for it over 

the years, governments have called for a truce during the Olympic 

Games for different regions, either war-torn regions, to allow athletes to travel from those regions or sometimes I believe—and 

again, I’d have to check to make sure—in 1994 there was a brief 

peace called in Yugoslavia during some of the conflicts there so 

that children could be immunized, and it was led by the IOC and 

signed off on by many members in the U.N. 

What I would love to see happen, and what I think many athletes that I’ve spoken with believe is possible, is that if nations of 

the world, particularly members of—the permanent members of the 

Security Council were to try to enact something more than just a 

symbolic truce, but actually try and restart a peace process in 

which members of some of the rebel groups can perhaps be brought 

back to the table, or hopefully the most valuable thing is if there 

are some sort of concrete goals that can be realized, either redeploy 

UNIMID or deployment of more—troops or fulfillment of some of 

the U.N. security resolutions already passed. 

Senator DURBIN. You’re a student at Princeton, and yet I know 

you’ve traveled to many campuses talking about Team Darfur and 

what your goals are. 

Mr. CHEEK. I have. 

Senator DURBIN. Would you like to give me your observations 

about why this genocide in Darfur seems to resonate among the 

young people of our country? 

Mr. CHEEK. I can speak for myself, pretty much, I think, only, 

in that I think that we are—I think we’re offended by the thought 

that there are such—such huge numbers of people being slaughtered by their own government, and we’re all aware of it. I think, 

perhaps in crimes in the past it was all dependent on whether one 

journalist could sneak in and get a few images out. 

21 

I think today students across the U.S. are so well-connected with 

events going on around the world within just a few seconds of hearing something about a crime that’s happening half-way across the 

world in a country that we have no strategic interest in, we can 

be aware of the massive injustice and I think it offends us that we 

can be aware of this and that this can happen, and that people in 

power can know this is happening, and yet still, seemingly little is 

done to stop it. Again, I understand the complexities of the issue, 

but I think more than anything the ability that we have to reach 

out, see the world, and realize that we have the ability to stop 

these crimes and we haven’t. 

Senator DURBIN. Ms. Smith, most everyone knows that Sudan is 

an oil-producing country and that China is one of the major countries doing business with Sudan. There’s been a lot of conversation 

about how to persuade China to take a more active role in dealing 

with the Sudanese government. Can you give me your impressions 

as to whether or not we can, should, or will effectively work in that 

direction? 

Ms. SMITH. Yes. I think we can, and should. There’s been some 

effort, arguably more by the public than by our own government, 

to put pressure on the Chinese. And it’s quite interesting. It’s less 

pressure aimed at impugning their character or isolating China 

and more pressure designed to call on China to use its leverage 

with Khartoum to, for example, allow the full deployment of the 

UNIMID peacekeeping operation. It’s certainly not been successful, 

but I think there is evidence that it has had some impact. 

I think it’s evident in a couple of ways. One, a lot of the pressure 

around the Olympics and the reference to things like the Darfur 

Olympics is something that has resonated with the Chinese. 

They’re just like anyone else; they don’t want to be seen, particularly at a time that they’re hosting the Olympics, as championing 

the cause of genocide. 

Second, I have, and many others of us in a growing movement, 

have actually met with the Chinese on this. And I would say that, 

again, I don’t know whether the pressure is sufficient to cause 

them to change their policy. I certainly don’t think they’re going to 

abandon Sudan and the oil supplies that it offers. 

But I had every indication that they’re hearing this and they 

want to figure ways to get out from under the pressure. Unfortunately, what they’ve done has been insufficient. They’ve sent an 

envoy, they’ve made statements, they’ve been largely superficial 

gestures. Just recently, they commended the government of Sudan 

for its excellent behavior and progress on Darfur, rather ironically. 

But I believe that if there were united public pressure and if the 

administration acted on this in some way—and frankly there’s been 

very little. There have been a couple of meetings with the Chinese 

about I think that’s it—that it might be possible to get the Chinese 

to use their leverage on Khartoum. 

Senator DURBIN. I might say, as I mentioned earlier, that I’ve 

had conversations with Condoleeza Rice, Secretary of State, as well 

as the President personally on this issue and I’ve reminded them 

that they’ve said ‘‘not on my watch’’ and that their watch is about 

22 

to end without a U.N. peacekeeping force in place and with the violence continuing. 

Ms. SMITH. Yes. 

Senator DURBIN. And so I’m hoping that in the closing months, 

even in the closing weeks before the Olympics, that they might be 

persuaded to renew this conversation with the Chinese about their 

role. 

Mr. Hari, one of the things you’ve said here, though, makes this 

especially challenging because you’ve suggested there are 28 different rebel groups now involved in the violence in Darfur, and 3 

different Janjaweed militia. We tend to oversimplify it here in the 

United States and say, well, if the government in Khartoum would 

just declare an end to this violence, it would end. But it seems to 

me that it’s much more complicated on the ground in terms of who 

is in charge and who would be brought to the table if we are to 

find a truce or peace. Is that your impression, too? 

Mr. HARI. Yes. We are, in Sudan—it’s a very large country. 

When we had a war in south Sudan for 25 years, Senator, just only 

we had SPLM at that time, the Sudan People’s Liberation Army, 

but the Khartoum regime said they are able to split that power for 

many, many factions in south of Sudan. They—very weak. So that’s 

what they used the policy in Darfur for, for 25, 28 different rebel 

groups, surrounded by the tribals, they have to pay for some tribes 

or the tribal leaders and they’re fighting. Sometimes—again, it’s 

some of pride, and that’s—they wanted to make very weak toward 

Darfurians to be united themselves. 

But that is not going to be far along because you don’t know 

right now if you are going to visit Sudan one day and you go into 

Khartoum from Darfur, it’s very easy to get from what Sudan is 

telling you, look what is happening in Darfur. There’s no government troops, there is not any Janjaweed, just only tribes fighting 

themselves. So, this is an ethnic problem, not a policy problem. So 

that’s what they do. They make a different level of our problem in 

Darfur and it has to make—different for the international community. But that’s the same problem they get with who is paying for 

the tribal leaders and others or different tribal leaders to do that. 

Senator DURBIN. Professor Orentlicher, now, what Senator Feingold asked was, I thought, a legitimate question about how many 

of these people who might be charged with crimes against humanity came to the United States, and whether they answered the 

questionnaires honestly in order to come to the United States. I 

think he addressed part of that in his question. Secondly, there is 

the question of whether they could stay in the United States or be 

subject to deportation, as we’ve called for in several instances. 

But I’d like you to address a comment which I’ve heard. When 

we suggest adding new crimes to be prosecuted, some say that we 

shouldn’t be tying up our system of justice, but that we should deport them back to their country for prosecution. Could you address 

that particular critique? 

Ms. ORENTLICHER. Well, we should do all we can to ensure that 

people can be prosecuted in the country where they committed 

crimes when there’s a credible prospect that they will be prosVerDate Nov 24 2008 14:22 Apr 07, 2009 Jkt 048219 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\48219.TXT SJUD1 PsN: CMORC
23 

ecuted. That should always be our first priority. But often removing someone is equivalent to guaranteeing their impunity. 

In some instances when a country is still very unstable, if you 

send some of the worst perpetrators back and the system of justice 

is in a state of wholesale collapse, there’s a risk of destabilization. 

So a decision has to be made on a case-by-case basis of where the 

best place for prosecution is, but we should always have the option 

of ensuring justice when it cannot be obtained elsewhere. 

Senator DURBIN. And for the record, I think this relates to a 

question from Senator Whitehouse. We looked up earlier testimony 

from David Scheffer about crimes against humanity. This has been 

defined and incorporated in the criminal codes of Australia, Canada, Germany, the Netherlands, New Zealand, South Africa, Spain, 

Argentina, and the United Kingdom. 

Ms. ORENTLICHER. Right. 

Senator DURBIN. So other countries have seen the need to do 

what we are proposing here, and many of those have been our allies in wars against inhumane and terrorist conduct. 

Ms. ORENTLICHER. Absolutely. 

Senator DURBIN. Well, I want to thank this panel for their testimony here today, for bringing this issue forward. I’ve tried through 

this subcommittee and on the floor to continue to revisit this issue. 

I am reminded of the experience of my former college classmate 

and former President Bill Clinton, who, after the genocide in 

Rwanda, when his presidency had ended, said it was one of the 

real mistakes of his administration that they did not step forward. 

At the time there were several leaders in the Senate calling for 

his administration to do something, including my predecessor, Senator Paul Simon of Illinois, and Senator Jim Jeffords of Vermont, 

then a Republican. It was a bipartisan effort which did not work. 

I felt that there was a need to continue to bring this issue forward 

in practical ways. 

I’ve said from the outset that this subcommittee is going to focus 

on legislation, not lamentation. We are going to not just look in 

horror at the scenes of genocide and crimes against humanity, but 

think of practical ways for us to deal with them to reduce the violence and to end the killing. That is why this hearing has been 

held today. 

I’m going to give special thanks as I close this hearing to some 

extraordinary staff people who have done great work to make this 

hearing a possibility, starting with my Chief Counsel on the Senate 

Judiciary Committee, Joe Zogby, Heloisa Griggs, Jaideep Dargan, 

Corey Clyburn, who is a legal intern, and Talia DuBovi. 

I also want to thank on the other side Senator Coburn’s staff, 

and particular, Brooke Bacak, his Chief Counsel, who’s been very 

supportive and very helpful. Senator Coburn has been an excellent 

ally in this entire endeavor. I know he regrets not being able to be 

with us today, but I’m glad that he persuaded Senator Specter to 

join from the Republican side. As you can tell, there’s bipartisan interest in this. 

24 

So at this point the record will be open for questions to be asked 

of the witnesses for several days, and I hope they can respond in 

a timely way. 

I thank you all for the sacrifice of coming here today and being 

part of this testimony and we will continue to press forward for 

this legislation. 

This meeting of the subcommittee will stand adjourned. 

[The prepared statement of Ms. Farrow appears as a submission 

for the record.] 

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

[Questions and answers and submissions follows.] 

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