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No Safe Haven: Accountability for Human Rights Violators, Part II

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. Since the first hearing on accountability for human rights violators approximately two years ago, significant gains have been achieved, in great part due to work by members of this subcommittee. At the same time, further efforts are needed for the United States to effectively contribute to ensuring perpetrators of the most serious violations of human rights and humanitarian law face justice. Human Rights Watch believes this subcommittee has an important role to play in building on progress to date.

The importance of prosecutions in the United States for atrocities committed abroad

Domestic U.S. prosecutions for serious human rights violations committed abroad are vital to ensuring individuals responsible are held to account and that the United States is not a safe haven for perpetrators of these crimes. In countries where serious crimes-including genocide, war crimes, crimes against humanity, and torture-are committed, domestic courts are all too often unable or unwilling to prosecute the crimes. International and hybrid international-national war crimes tribunals have been and will continue to be essential to ensuring justice in these situations. Nevertheless, international and hybrid tribunals only try a relatively small number of alleged perpetrators, due to limitations on their jurisdiction to particular time periods or abuses committed in particular countries. In addition, extradition of an alleged offender to his or her country of nationality for domestic prosecution may not be possible, due to obstacles such as a risk of torture or an unfair trial in that country. All of these factors underscore the importance of domestic prosecutions for serious crimes committed abroad.

The Department of Justice took a significant step in this direction in 2006 when the department brought its first case under the federal extraterritorial torture law (18 USC §2340A). The case-which was against Charles "Chuckie" Taylor, Jr., the son of the former Liberian president Charles Taylor, for torture committed in Liberia-illustrates the importance of domestic prosecutions for human rights violations committed abroad in helping to close accountability gaps. After emerging from fourteen years of conflict during which civilians were terrorized, Liberia faces major obstacles to prosecuting past abuses and has yet to pursue any such cases. Meanwhile, no existing international or hybrid tribunal has jurisdiction over serious crimes committed in Liberia. The trial and conviction of Chuckie Taylor in the United States for torture has thus provided a rare instance of accountability for atrocities committed during Liberia's years of conflict that ended in 2003.

Adequate laws

A key requirement for U.S. prosecutions for human rights violations committed abroad is domestic law that makes the violations crimes. In the past two years, significant progress in ensuring adequate laws are in place has been made. Specifically, the Genocide Accountability Act-introduced by Senators Richard Durbin, Tom Coburn, Patrick Leahy, and John Cornyn of this subcommittee-was enacted in December 2007. The Child Soldiers Accountability Act-also introduced by Senators Durbin and Coburn-was enacted in October 2008. These laws substantially increase the opportunities to bring perpetrators of serious crimes to account by making it a crime for any person present in the United States, regardless of citizenship, to commit genocide or child recruitment anywhere in the world. Previously, the only serious crimes in violation of international law that were crimes in the United States when committed abroad were torture (18 USC §2340) and war crimes (18 USC §2441); moreover, only torture was punishable where neither the alleged offender nor victim is a U.S. citizen.

Nevertheless, some of the worst abuses in violation of international law-crimes against humanity-are still not domestic crimes in the United States. In June, Senators Durbin, Leahy and Russ Feingold introduced the Crimes Against Humanity Act of 2009, which makes widespread and systematic attacks against a civilian population involving murder, enslavement, torture, rape, arbitrary detention, extermination, hostage taking, or ethnic cleansing a crime when committed anywhere by a U.S. citizen or any person present in the United States regardless of nationality. The Crimes Against Humanity Act of 2009 represents an important effort to make crimes against humanity committed abroad punishable offenses in the United States. This is vital to fill a major gap in existing law, and we support the bill's enactment. At the same time, we note with concern that the bill diverges from internationally-accepted definitions of crimes against humanity, most notably by requiring that attacks be "widespread and systematic" as opposed to "widespread or systematic." It would be preferable for U.S. law to more closely mirror international definitions, including because the proposed definition could make it more difficult to bring charges for crimes against humanity.

Further efforts by Congress will also be important to ensure that serious crimes are fully covered by federal law. For example, the current law on war crimes should be revised to cover the entire scope of these crimes under international law, and to cover war crimes when committed by non-U.S. citizens, as the torture, child recruitment, and genocide laws do.

In addition, liability for serious crimes on the basis of what is known as command responsibility should be explicitly available. Command responsibility arises when leaders-those in positions of command-knew or should have known about the commission of serious crimes and failed to prevent their commission or failed to punish those responsible. This basis of liability has been integral to successful cases in international criminal tribunals against leaders who bear responsibility for the crimes, but are not directly participating in the crimes. Human Rights Watch believes that individuals can already be prosecuted in the United States on the basis of command responsibility: the basis of liability is expressly recognized in the U.S. military code, has been upheld by the U.S. Supreme Court in cases brought after World War II, and has been recognized in several civil cases in federal courts involving human rights violations. Nevertheless, prosecutors may benefit from an explicit and direct recognition of this basis of criminal liability. Illustrative of the importance of a clear legal basis for a perpetrator to be held liable on the basis of command responsibility is a decision of the International Criminal Tribunal for Rwanda, which refused to transfer a war crimes case to Rwanda as there was no explicit basis for command responsibility liability in Rwandan law.

Putting laws on serious violations of human rights into practice

While enacting adequate laws is the essential first step, ensuring justice for abuses requires that the laws be energetically applied. The dearth of cases applying federal laws on serious international crimes committed abroad underscores the importance of steps to ensure cases are actively pursued.

The Department of Justice's first case under the extraterritorial torture law against Charles "Chuckie" Taylor, Jr. in 2006 represented a major move forward. On October 30, 2008, after a jury trial in which more than twenty witnesses testified, Taylor was convicted of torture committed in Liberia while he headed a security unit under his father's presidency. He was subsequently sentenced to 97 years in prison. He is currently appealing the verdict.

Human Rights Watch believes the case against Chuckie Taylor should be the first of many involving federal laws on serious international crimes. Notably, the torture law had been in effect for more than ten years before the first case under it was brought, and prosecutions under other existing law on serious crimes committed abroad at the time (war crimes) had never to our knowledge been initiated. Meanwhile, we are aware of no new cases since the case against Chuckie Taylor having been brought under any of the laws that make serious abuses committed abroad federal crimes.

Current cases that should be explored include possible torture charges against eighteen paramilitary leaders who have been extradited from Colombia to the United States since May 2008 on drug charges. Human Rights Watch and other human rights groups have documented extensive human rights abuses by forces led by these paramilitaries, including torture committed after 1994 when the extraterritorial torture statute went into effect. To date, the human rights abuses in which these paramilitaries have been implicated have not featured in the cases against the paramilitaries, nor have any charges related to the human rights abuses been filed in the United States to our knowledge. This is of all the more concern as some of these paramilitaries were in the process of participating in a domestic accountability process on human rights abuses committed in Colombia at the time of their extradition. While the United States has made some attempts to facilitate the continuation of that process, due to the extraditions the paramilitaries have lost many of the incentives they had to cooperate with the Colombian proceedings. There is thus a risk that redress for victims and documentation of abuses will be lost as a result of the extraditions.

With regard to overall efforts to prosecute serious crimes in various countries, U.S. authorities have indicated that a number of investigations relating to federal laws on serious crimes have been initiated and while criminal charges were not brought, immigration charges were made. As previously highlighted by government officials and Human Rights Watch to this subcommittee, cases involving serious crimes committed abroad can involve major challenges. This is due to a combination of factors, such as language barriers, unfamiliar political and historical contexts, and the need to conduct extraterritorial investigations. Nevertheless, prosecutions for serious crimes are far preferable to immigration charges because serious crimes prosecutions target the nature and gravity of abuses committed and, as a result, better promote justice for victims and an accounting of the violations. Moreover, cases can and have been successfully pursued, as the case against Chuckie Taylor in the United States and prosecutions of serious crimes committed abroad in Western Europe demonstrate.

Recently, Congress has taken a significant step to strengthen the prospects of human rights enforcement by allocating $3.3 million for fiscal year 2009 to increase investigation and prosecution of serious crimes committed abroad. We understand these funds are to be utilized in substantial part to increase the number of attorneys working in the Department of Justice's Domestic Security Section (DSS), which is responsible for investigating and prosecuting human rights violations, and to increase the number of Federal Bureau of Investigation agents focused on investigations involving serious crimes committed abroad. These are important developments, especially as we understand DSS was previously only staffed with approximately seven attorneys. Senators Durbin and Coburn have also introduced the Human Rights Enforcement Act of 2009, a major feature of which is to bring DSS and the Office of Special Investigations, which focuses on investigating, denaturalizing, and removing human rights abusers in the United States, into one section in the Department of Justice's Criminal Division. This could be very valuable, as research by Human Rights Watch on prosecutions in Western Europe of human rights violations committed abroad suggests that concentrating experience and expertise on investigating and prosecuting serious crimes in one department can be instrumental to promoting effective cases.

Today's hearing provides an important opportunity to hear from the Departments of Justice and Homeland Security and the Federal Bureau of Investigation about the efforts they have taken in the past two years to strengthen the prospects for prosecutions of genocide, torture, war crimes, and child recruitment committed abroad, the challenges they have experienced in trying to pursue these cases, and what other measures may be required to overcome the obstacles. In particular, drawing lessons from the prosecution of Chuckie Taylor and other investigations into serious crimes committed abroad to date will be important. We commend the efforts of this subcommittee thus far to promote accountability for human rights violators and look forward to continued initiatives by the subcommittee to ensure appropriate laws and necessary support for additional prosecutions for human rights violators in the United States.

Thank you.

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