Good morning Chairman McGovern, Chairman Wolf and distinguished members of the Tom Lantos Human Rights Commission. I would like to thank you and the Members of the Commission for holding this important hearing on the government’s efforts to investigate, prosecute and remove human rights abusers. I would also like to applaud the Tom Lantos Commission and its predecessor, the Congressional Human Rights Caucus, on your extraordinary leadership in promoting, defending and advocating for internationally recognized human rights norms.
My name is Pamela Merchant. I am the Executive Director of the Center for Justice and Accountability and a former federal prosecutor. I spent eight years as a prosecutor with the Criminal Division of the United States Department of Justice and served as a prosecutor for the Commonwealth of Massachusetts and the State of California.
Mr. Chairman, I request that this written testimony be made part of the record.
The Center for Justice and Accountability (www.cja.org) is a nonprofit legal organization dedicated to ending torture and seeking justice for human rights crimes. We represent hundreds of survivors of torture and other human rights abuses in civil litigation using the Alien Tort Statute and the Torture Victim Protection Act in the United States. In addition, we work as a private prosecutor in criminal prosecutions in Spain where we are lead counsel on the Jesuits Massacre Case and the Guatemala Genocide Case. Further, we currently represent 45 Civil Parties in the Second Khmer Rouge trial scheduled to begin in Phnom Penh in January of next year.
In the past twelve years, we have brought cases against human rights abusers in the U.S. from Bosnia, Chile, China, Colombia, El Salvador, Haiti, Honduras, Indonesia, Peru and Somalia. We are, therefore, in a unique position to offer insights to our allies in the government about the effective prosecution of these cases.
The core problem CJA and our colleagues at the Department of Justice (DOJ) and the Department of Homeland Security (DHS) address is impunity for perpetrators of gross human rights violations. By allowing human rights abusers to live with impunity, survivors and their communities are denied their right to truth, justice and redress. Impunity creates a culture that allows abuse to flourish; what is done without any punishment can be repeated without fear of consequences.
It is estimated that more than 400,000 survivors of politically-motivated torture currently reside in the United States. Every day these survivors strive to become self-sufficient and productive members of their new communities while struggling to reclaim the strength and vitality that were stolen from them. It is also estimated that thousands of human rights abusers have found safe haven in the United States, including more than one thousand with substantial responsibility for heinous atrocities. These abusers often live in the same immigrant communities as their victims, causing extreme anxiety and undermining justice and accountability movements in the countries where the abuses occurred.
CJA applauds the work of DOJ and DHS to prosecute and in some instances remove human rights abusers. In particular, CJA applauds DOJ for the successful prosecution for torture of Emmanuel “Chuckie” Taylor, Charles Taylor’s son and the former leader of Liberia’s notorious Anti-Terrorism Unit. We also applaud the recent removal proceedings brought against Salvadoran Generals Vides Casanova and García for their role in overseeing troops responsible for the torture of our clients and countless others. We hope that there will be many more such prosecutions.
We also support efforts, consistent with U.S. treaties and international obligations, to extradite human rights abusers to other countries to stand trial in national courts.
Over the years we have worked closely with attorneys, agents and historians within DOJ and DHS on human rights enforcement efforts. We support efforts to direct more resources to human rights prosecutions and to expand the tools available so they may effectively prosecute human rights abusers in the U.S. and support human rights prosecutions in national courts and other internationally recognized forums.
I would now like to offer recommendations concerning both policy and legislative reforms.
Human Rights Framework
U.S. efforts to hold human rights abusers accountable must be undertaken in the context of a broader human rights framework and must conform to international human rights standards. When considering how to handle a human rights abuser in the U.S., it is important to understand the role that individual played in the conflict, the needs and desires of the survivors and their community, and what efforts, if any, exist in the home country and other prosecuting bodies to address the legacies of widespread or systematic human rights abuse through judicial and other approaches.
Criminal prosecutions for substantive human rights crimes such as torture, crimes against humanity, and extrajudicial killing are the most important form of accountability for victims of human rights abuses. The strongest message that the U.S. can send to human rights abusers around the world is that we will take steps to ensure that they are held criminally accountable for their human rights crimes. Any such prosecution should not seek the death penalty.
Real deterrence cannot be achieved unless military and government officials perceive that they may be held individually accountable, not just for committing abuses, but for their failure to take reasonable action to stop others under their command from committing abuses or for failing to punish their subordinates after the commission of these crimes. The focus of enforcement efforts, therefore, should include command responsibility of those in power who enabled, or at the very least allowed, systematic and widespread human rights abuses.
Whenever possible, the first priority should be to prosecute human rights abusers for human rights crimes, rather than for secondary immigration violations. Because human rights offenses carry harsher penalties than immigration violations, they have greater deterrent value. And by directly punishing the underlying crime, they send a clearer message. However, charging the human rights offense may not always be an option under U.S. law. For instance, an act of torture may have been committed prior to the 1994 enactment of the torture statute.
In such cases, the government may face a choice between extradition or bringing immigration fraud charges. We believe that justice would be better served by extraditing a suspected human rights abuser to an appropriate foreign jurisdiction capable of prosecuting the underlying crime. Indeed, when Congress formed the Human Rights and Special Prosecutions Section in the Human Rights Enforcement Act of 2009, it instructed the DOJ to consider the availability of foreign prosecution when deciding on a course of legal action.
We recommend a four-step analysis. First, is the offense chargeable under current U.S. statutes? Second, if the offense is not chargeable, is there a foreign jurisdiction that is willing and able to prosecute? Third, in which venue would justice be better served for the victims of the human rights abuses and for the home country’s transitional justice efforts? Here, a threshold analysis should be made into whether the return of a perpetrator to the home country is potentially destabilizing, or may result either in abuse of the perpetrator or in the perpetrator’s participation in further criminal activity. We must not simply move the problem back to someone else’s backyard when we have the resources and political will to take enforcement measures in the United States. Finally, if neither substantive prosecution nor extradition is available, the fourth step should be to evaluate whether a criminal prosecution could be brought under other laws, for instance, for false statements made on immigration applications.
The case of Colonel Inocente Orlando Montano is one example where prosecution in a foreign jurisdiction, namely Spain, would further accountability. Colonel Montano is a former military officer from El Salvador who served as Vice Minister of Public Safety during that country’s civil war in the 1980s. On May 30, 2011, a Spanish judge issued a 77-page indictment and arrest warrants for 20 Salvadoran ex-officers, including Montano, charging them with crimes against humanity, murder and state terrorism for their role in the murders of six Jesuit priests, their housekeeper, and her sixteen year old daughter in 1989. Five of the six Jesuit priests were citizens of Spain and the Spanish government is in the process of seeking Montano’s extradition to face substantive charges there. Although Montano is currently facing charges of immigration fraud in the U.S, we believe that real justice for El Salvador and the Salvadorans in this case will be achieved by extraditing him to Spain.
In a situation involving extradition or removal, our government should take diplomatic and legal steps to ensure that the human rights abuser will (a) be arrested in the home country and not able to go into hiding; (b) be fairly prosecuted or otherwise held accountable by the national courts in his/her home country, and (c) not be subjected to abusive treatment. It is also crucial to assess whether the national courts of the home country have the ability to carry out a fair trial before any removal or extradition is permitted to proceed.
I would now like to offer specific policy recommendations aimed at: first, enhancing abilities to criminally prosecute human rights offenders in the U.S.; second, increasing international cooperation to further justice and accountability; and third, enhancing the effectiveness of working with torture survivors and protecting the safety of witnesses who courageously face their abusers in courts of law in the U.S. and around the world.
1. Human Rights Legislation
It is imperative that Congress continue to expand legislation to enable the prosecution of human rights abusers. The enactment of the Genocide Accountability Act and the Child Soldiers Accountability Act were important steps in the right direction. However, in order to effectively prosecute those responsible for the most heinous human rights violations, Congress must also enact legislation targeting crimes against humanity and extrajudicial killing as well as eliminating statutes of limitations and ex post facto considerations for atrocities crimes.
Almost all of the defendants in CJA’s cases who reside in the U.S. could not be prosecuted today for their human rights crimes because of limitations in our current criminal code. The most serious offense most of them can be charged with is immigration fraud because of the limits in the U.S. criminal code. These individuals, who have been found responsible by civil juries for torture, extrajudicial killing and crimes against humanity, continue to live comfortably in the U.S. with impunity. For example, Salvadoran Colonel Inocente Montano who was part of the conspiracy to kill the six Jesuit priests was charged with a single count of making a false statement in his immigration papers.
The cases of former Salvadoran Generals Vides Casanova and García further illustrate the shortcomings of the current statutory scheme. Vides Casanova was charged with ordering, inciting, assisting or otherwise participating in extrajudicial killing and torture. As immigration proceedings are civil in nature, he will not serve any prison term for his role in these atrocities. Although he will ultimately be deported to El Salvador, El Salvador has a blanket amnesty law that prevents any prosecution for human rights abuses committed against the civilian population during the Salvadoran civil war. So, unless the amnesty law is amended or repealed, Generals García and Vides Casanova will never be criminally prosecuted for their responsibility for having ordered and supervised torture and other atrocities committed in El Salvador from 1980 to 1992.
To that end, we urge this Commission to consider the following legislative and regulatory measures:
First, we urge Congress to reconsider the Crimes Against Humanity Act, introduced during the 111th Congress, which would grant jurisdiction to U.S. courts to prosecute perpetrators of human rights abuses who reside in the United States.
Second, we urge Congress to pass a criminal extrajudicial killing statute. Today, an individual can be prosecuted for committing torture, but the same individual cannot be prosecuted for killing someone outright if torture is not involved. An extrajudicial killing statute thus fills a gap in the current criminal torture statute, and its addition to that statute would significantly aid prosecutors. It would also bring the U.S. criminal code in line with international law. Extrajudicial killing is prohibited both in the Geneva Conventions and in customary international law. Moreover, Congress already defined and created tort liability for extrajudicial killings under color of foreign law in the Torture Victim Protection Act.
Third, consistent with international law, the application of the Torture Statute and other atrocity laws should be retroactive. There should be no ex post facto concerns for torture, extrajudicial killing, genocide and crimes against humanity, which have been considered punishable crimes since the Nuremberg trials. The Torture Statute’s current effective date of November 1994 renders the statute ineffective for all abuses committed, for example, in Latin America and Africa during the eighties and early nineties.
Fourth, as with common law murder, there should be no statute of limitations on torture or other human rights crimes.
Fifth, to enhance the focus on high-level officials, all existing criminal human rights law should incorporate command responsibility as a basis for liability. Command responsibility is a well-established U.S. theory of liability which covers military officers or civilian superiors for crimes committed by their subordinates and who knew or should have known about these abuses and failed to take steps to stop the abuses or punish the offenders. It has been developed and applied in criminal trials in the U.S. and later internationally, as well as in civil litigation. Another possibility would be an independent act clarifying the standards for accomplice liability for human rights offenses: this could include command responsibility, material support, and clarify the mens rea for aiding and abetting. Legislation that strengthens the rules regarding the responsibility of subordinates while allowing those with the command responsibility for human rights abuses to live in this country with impunity sends the wrong message about our commitment to human rights.
Sixth, the U.S. Citizenship and Immigration Services should amend immigration forms to include direct questions about participation in human rights atrocities as a commander. Since this can be a lengthy process, in the interim consular officials and immigrations inspection agents should be instructed to inquire about command roles when interviewing aliens seeking admission.
Finally, existing legislation should be more rigorously enforced. CJA again congratulates all government agencies responsible for the conviction of Emmanuel “Chuckie” Taylor under the Torture Statute. It is worth noting, however, that since it was enacted in 1994, this is the first and only time this statute has been used. No human rights prosecutions have been brought to date under the Genocide Act or the Child Soldiers Act.
2. International Cooperation
As discussed above, the U.S. should work cooperatively with governments who seek to prosecute human rights abusers or are using other accountability mechanisms.
Of particular interest to CJA and Chairman McGovern are the two defendants from the Jesuits Massacre Case who are in the United States. Former Colonel Inocente Montano was recently charged with immigration fraud and has been released on bond in Massachusetts where he has been living for the past ten years. Former Lieutenant Cuenca Ocampo is living in the San Francisco area. Both are subject to indictments and arrest warrants issued by the Spanish court for their role in the massacre which have been transmitted by Interpol to the United States. Montano’s arrest warrant, as detailed in the accompanying affidavit from a U.S. government agent, relied on evidence provided by the Spanish prosecution. We encourage this body to use its influence to ensure that communication is made by DOJ to Spanish authorities so the extradition request may be properly issued with regard to the defendants’ status. We also encourage this Commission to use its influence to to ensure that these two defendants are ultimately extradited to Spain to stand trial for their role in the killing of five Spanish citizens by the Salvadoran military.
It is important to note the critical role that the U.S. Congress has played in the investigation of the Jesuits Massacre and subsequent accountability efforts for Salvadorans. Chairman McGovern’s role as lead investigator on the Moakley Commission Congressional Investigation into the murders led to a change in U.S. foreign policy towards El Salvador when it determined that the Salvadoran military was implicated in the murders. That landmark determination led to future military aid from the U.S. being conditioned on an improved human rights record.
We also encourage international cooperation in the case of former Guatemalan Special Forces Member Jorge Sosa Orantes for his participation in the Dos Erres massacre of 1982, where more than 200 people, including women, children, and the elderly, were brutally slaughtered. Sosa Orantes was arrested in Canada on U.S. immigration charges where he remains while the U.S. awaits Canada’s enforcement of its extradition orders. He is also subject to an arrest warrant and indictment in the Guatemala Genocide Case pending in Spain. There he has been charged with crimes against humanity, murder and state terrorism. The Spanish government has sent an arrest warrant to the U.S. because Sosa Orantes is a U.S. citizen. We hope that the government’s involved can work together so Sosa Orantes will stand trial in Spain for the human rights crimes.
The case of Colombia also illustrates the need for better coordination. The U.S. currently holds in its federal prisons the bulk of the leadership of the Colombian paramilitary organization, Autodefensas Unidas de Colombia (AUC). These individuals were extradited to the U.S. to face minor drug-trafficking charges. In many instances these human rights abusers have already confessed in Colombia to their role in torture, extrajudicial killing, massacres and other human rights abuses. Their presence in the U.S. has stymied the Colombian government’s investigation of their human rights abuses.
While the U.S. has a long history of successful cooperation with Colombian law enforcement to prosecute drug crimes, there is no established mechanism through which U.S. and Colombian authorities can coordinate human rights prosecutions.
The human rights prosecutions in Colombia are being conducted largely through the Justice and Peace Law, a special criminal law passed as part of the peace negotiations to demobilize the paramilitary forces. Under this law, participating individuals receive a drastically reduced sentence in exchange for 1) turning in all weapons; 2) ceasing all illegal activity; 3) fully disclosing all past crimes; and, 4) turning over illegally obtained property for victim reparations. Participants also must give testimony (similar to a deposition) where they confess to all crimes committed. These confessions have so far led to the investigation, indictment, and prosecution of dozens of members of the Colombian government with ties to paramilitaries and human rights abuses. These confessions also provide the only opportunity for thousands of victims to learn about what happened to their loved ones.
The leaders of the AUC are the main informants and witnesses in these cases. To date, the Colombian government has no success in coordinating with the U.S. to ensure that the AUC defendants are able to give testimony in ongoing human rights prosecutions in Colombia. The lack of cooperation has been such that the Colombian Supreme Court of Justice declared in 2009 that it would no longer authorize the extradition of Justice and Peace participants to the U.S. to face drug charges because attempts to coordinate depositions from the U.S. have been largely unsuccessful. The Court reached that conclusion despite the fact that the very serious charges of drug-trafficking pale in comparison with the crimes of systematic torture, murder, recruitment of child soldiers, forced displacement and disappearance, for which these individuals are charged in Colombia.
Finally, CJA urges DOJ to perform more due diligence when it seeks to bring human rights abusers who have also committed other crimes, such as drug trafficking, into the U.S. and to be sure to include human rights crimes in the extradition request. A failure to do so will result in the situation we now face where arguably the most significant perpetrators of human rights abuses in Colombia may never be held to account for those crimes.
3. Techniques for Working with Torture Survivors, Witness Safety and Visas
One of the things that we hear most often from attorneys and agents in the government who are working on these cases is the difficulty they have finding witnesses and maintaining relationships with witnesses. We have found that a client-centered approach is needed to develop the trust necessary for survivors to be effective witnesses.
Torture survivors suffer from post-traumatic stress disorder, depression, anxiety, nightmares, chronic pain and other long-term conditions. It is important to avoid, or at the very least minimize, situations that will retraumatize them. Interviews need to be conducted with a particular sensitivity and, when possible, survivors should not be forced to tell the story of their torture over and over. Special precautions need to be taken in courtroom and asylum proceedings so as to avoid triggering memories of traumatic interrogations. Attorneys and investigators need to be trained on effective, non-threatening interview techniques. Attorneys should also be cautioned about re-interviewing torture survivors. In general, torture survivors require more frequent contact during the legal process than witnesses with no traumatic history.
Special consideration also needs to be made when it comes to interpretation. A successful human rights prosecution requires high quality interpretation during the interview phase and at trial. In our experience, at times the government brings skilled interpreters into interviews too late.
Safety protocols need to be established for victims, witnesses and their families. As with organized crime prosecutions, clients and witnesses who testify in human rights cases often do so at great personal risk to themselves and their family members. Safety considerations also need to be taken into account for witnesses and family members overseas.
The importance of fostering a safe environment for testifying without fear of retribution cannot be underestimated. Even victims safely resettled in the U.S. have faced intimidation and harassment relating to their immigration status here after agreeing to testify to bring human rights abusers to justice. Victims must be assured that their safety in this country will not be compromised when they choose to testify. Failing to do so will have a chilling effect on the willingness of witnesses to come forward and face their abusers.
If the U.S. is to effectively prosecute human rights abusers, it cannot stop at simply protecting witnesses. It must also issue visas to bring witnesses to the U.S. to testify against their abusers. It is extremely difficult to prosecute or litigate a human rights case if victims or witnesses are unable to get into the country to testify.
Finally, the reach of the U-Visa should be expanded to cover all human rights litigation. CJA applauds the increase in the issuance of U-Visas to victims of trafficking and torture and asked that the statutory maximum be increased.
In conclusion, CJA encourages the U.S. to serve as a leading country in the struggle against impunity and to prosecute human rights abusers aggressively, observe and apply bilateral agreements to extradite human rights abusers when appropriate, to enact the necessary laws that will secure such prosecutions, use existing immigration law to remove human rights abusers when appropriate and to protect witnesses and facilitate their participation in the prosecution of their abusers.
Thank you very much for this opportunity to submit testimony. I would be pleased to answer in writing any questions that the Commission may have and to submit any additional information for the record.