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No Safe Haven: Accountability for Human Rights Violators in the United States

Testimony of Elise Keppler, International Justice Program counsel, before the Senate Judiciary Subcommittee on Human Rights and the Law

Human Rights Watch appreciates the invitation to submit a statement for the record on this important subject. On December 6, 2006, the US Department of Justice took an unprecedented step to ensure accountability for human rights violators who are in or come to the United States. The department brought the first-ever criminal charges for torture committed abroad. The charges are against Charles "Chuckie" Taylor, Jr., the son of the former Liberian president Charles Taylor and also a US citizen, who entered the United States in March 2006. The charges relate to Taylor, Jr.'s role in committing torture as head of a security unit under his father's presidency in Liberia.

As reflected by the practice in US-supported international and internationalized criminal tribunals, the international trend in law and practice is to end impunity and to ensure that perpetrators of the worst human rights abuses are held accountable. However, international and hybrid criminal tribunals can only try a relatively small number of alleged perpetrators due to their finite resources and mandates, which are usually restricted to specific periods and conflicts. At the same time, increasing domestic prosecutions of international crimes, especially in Western Europe, is limiting safe haven for perpetrators in many states.

Domestic prosecutions in the United States for serious human rights violations committed abroad is a critical way to ensure that the United States does not serve as a safe haven to alleged perpetrators and to see that justice is delivered in the face of atrocities. For more than ten years, federal law has made it a punishable crime in the United States for a US citizen or any individual in the United States to commit torture abroad (18 USC §2340A). Federal law also makes it a crime to commit war crimes abroad (18 USC §2441) and to commit genocide (18 USC §1091). But no one as yet had been prosecuted under these laws.

Federal prosecutions of serious crimes under international law committed abroad are long overdue. The trial against Taylor, Jr., which is set to begin in January 2008, should be only the first of more cases of this kind.

In recent years, the Departments of Justice and Homeland Security have taken important steps to enhance US capacity to prosecute such cases including the creation of an ad hoc interagency working group to increase coordination on possible cases. As you are aware, legislators have also put forward significant legislation to increase the opportunities to prosecute serious human rights violations committed abroad. Such efforts are vital and should be intensified as experience suggests that while such cases are critical and viable, they involve significant challenges. Research by Human Rights Watch into the prosecution of serious human rights violations committed outside the forum state by eight Western European countries since 2001 offers valuable insights. From the initial complaint to the conclusion of the trial and any appeal, successful cases are being conducted. Yet, they have presented special demands on police, prosecutors, defense counsel, and courts. The right combination of appropriate laws, adequate resources, institutional commitments, and political will is needed.

I will now highlight some of our most significant findings, and recommendations, as to key elements to fair, effective prosecutions based in large part on our research on such cases in Western Europe. Notably, operationalizing these elements in the United States may require investment of resources and changes in practice. In this regard, we urge Congress and the Departments of Justice and Homeland Security to give them due attention and to consider seriously their implementation. They are crucial to ensuring that there can be no safe haven for perpetrators of serious crimes under international law in the United States.

Appropriate legislation

First and foremost, effective prosecution of serious violations of human rights committed abroad requires appropriate legislation. Jurisdiction for prosecuting such crimes must extend beyond crimes committed on US territory or by US nationals. In this regard, several important bills proposed following hearings before this subcommittee should be enacted. These include the Genocide Accountability Act of 2007 which provides amendments to allow the US courts to exercise jurisdiction over genocide where the offender is brought into or found in the United States (as opposed to only where the crime is either committed by a US national or on US territory). These also include The Child Soldier Accountability Act, an important initiative introduced in October. The bill would make the recruitment or use of child soldiers under age 15 punishable for the first time in the United States and also allow the US to exercise jurisdiction where the crime is committed abroad and when the alleged offender is either a US citizen or present in the United States.

Another important issue is more explicit recognition of criminal liability for these crimes on the basis of what is known as command responsibility. This basis of liability arises when leaders - those in positions of command - knew or should have known about the commission of serious crimes. This basis of liability has been integral to successful cases in international criminal tribunals against perpetrators who are leaders often far removed from the scenes of crimes. The basis of liability is already expressly recognized in the US military code, upheld by the US Supreme Court in cases brought after World War II, and has been recognized in several civil cases in federal courts involving human rights violations.

While Human Rights Watch believes that individuals can already be prosecuted in the United States, on the basis of command responsibility, we believe that prosecutors may benefit from an explicit and direct recognition of this basis of liability for human rights violations.

Developing investigative and prosecutorial expertise

Even where the appropriate laws exist, prosecuting crimes committed abroad can be daunting. This is for a variety of reasons, including language barriers, the unfamiliar country context, and proving crimes that may never have been previously adjudicated. A key way in which states that we examined in Western Europe responded to these challenges is by creating specialized units to investigate and prosecute transnational crimes. The specialized units allow the concentration of relevant experience and information which, in turn, enhances the efficiency and proficiency of investigations and prosecutions. Such specialized units include not only investigators and prosecutors, but also translators, military analysts, historians and anthropologists, on an as-needed basis. The efficacy of such units seems borne out in experience. In the countries that we examined, most cases since 2001 which led to convictions were put together by specialized units.

Another important way to enhance expertise is through the exchange of information and best practices with other practitioners around the world. We note that the European Union has established a network of contact points on these cases to which United States authorities should consider reaching out. In addition, Interpol has convened several expert meetings and has a working group on prosecuting international crimes which can also serve as a valuable resource.

The need for extraterritorial investigations

Another critical element to successful prosecution of serious crimes committed abroad is extraterritorial investigation. Facts must be collected from the place where the crimes were committed. For example, in the case of Faryadi Zardad, an Afghan militia leader ultimately convicted of acts of torture and hostage-taking in Afghanistan in the 1990s, British investigators traveled to Afghanistan on nine occasions to locate and interview witnesses. In order to identify potential witnesses in such investigations, investigators utilized a range of methods including in some instances making direct calls for assistance in the state where the crimes occurred through radio and television.

The need to protect witnesses

Given the contexts in which grave human rights abuses are often committed, witnesses can be expected to face serious threats if they become involved in a prosecution. We have found that the high visibility of investigations conducted in the territorial state may increase risks for witnesses. Reducing visibility may be important and can be done easily by, for example, taking statements in neutral places. It may also be necessary to provide funds for a witness to leave the country for a period of time. While the power to protect witnesses remains with the authorities in the state where the investigation is conducted, the welfare of at-risk witnesses also must be monitored by US authorities who should have the capacity to relocate threatened witnesses if necessary.

A related issue is a commonly cited concern that witnesses brought to testify in the forum state may seek asylum. Witness testimony has been taken abroad through various measures, including video link. However, if the witness has a well-founded fear of persecution, and the witness's evidence is significant, due consideration should be given to facilitating the witness's relocation through asylum or other arrangements.

Human Rights Watch thanks this subcommittee for focusing on ensuring accountability for human rights violators in the United States. We hope that it helps to draw attention to this important issue and that appropriate resources will be dedicated to strengthening domestic capacity and expertise to prosecute serious crimes under international law committed abroad.

Thank you.

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