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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 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

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 

WILLIAM D. DELAHUNT, Massachusetts 

JERROLD NADLER, New York 

HANK JOHNSON, Georgia 

ANTHONY D. WEINER, New York 

SHEILA JACKSON LEE, Texas 

ARTUR DAVIS, Alabama 

TAMMY BALDWIN, Wisconsin 

BETTY SUTTON, Ohio 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

BOBBY VASSAR, Chief Counsel 

MICHAEL VOLKOV, Minority Counsel 

(III) 

C O N T E N T S 

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 

(1) 

GENOCIDE AND THE RULE OF LAW 

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 

2 

or committed by a U.S. national, we leave a gap which allows nonU.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. 

3 

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 

4 

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. 

5 

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. 

6 

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:] 

7 

PREPARED STATEMENT OF ELI M. ROSENBAUM


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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.’’ 

16 

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 

17 

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 

18 

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.’’ 

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. 

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 decadeslong 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) 

19 

2 Article IV, read in conjunction with Article III. 

3 Article V. 

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

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 naVerDate Aug 31 2005 14:59 Nov 06, 2008 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\102307B\38508.000 HJUD1 PsN: 38508
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4 National Defense Authorization Act, Pub. L. No. 104–106, § 1342, 110 Stat. 486 (1996). 

5 8 U.S.C. §§ 1182(a)(3)(E)(ii), 1227(a)(4)(D). 

6 8 U.S.C. § 1103(h)(3). 

tionals, 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. 

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. 

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 signifiVerDate Aug 31 2005 14:59 Nov 06, 2008 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\102307B\38508.000 HJUD1 PsN: 38508
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7Torture Convention Implementation, codified at 18 U.S.C. §§ 2340–2340B. 

cant 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. 

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. 

22 

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. 

23 

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 

24 

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 

25 

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 weakVerDate Aug 31 2005 14:59 Nov 06, 2008 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\102307B\38508.000 HJUD1 PsN: 38508
26 

ened 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:] 

27 

PREPARED STATEMENT OF GAYLE E. SMITH


GES-1.eps
28 


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29 


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30 


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31 

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? 

32 

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 

33 

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. 

34 

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. 

35 

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 

36 

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. 

37 

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.] 

(39) 

A P P E N D I X 

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. 

40 

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. 

f 

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. 

41 

1 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 

U.N.T.S. 277, 280. 2The 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. 

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. 

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

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. 

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