Mr. YATRON. Thank you very much, Professor Ferguson, for an excellent statement.

Professor Cohen.

STATEMENT OF STEPHEN B. COHEN, INTERNATIONAL HUMAN RIGHTS LAW GROUP, ASSOCIATE PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER, AND FORMER DEPUTY ASSISTANT SECRETARY OF STATE FOR HUMAN RIGHTS

Mr. COHEN. Thank you, Mr. Chairman and Mr. Leach.

Mr. Chairman, I want to thank you for inviting me to testify here today before this distinguished subcommittee. The issue before you is whether to drop the word "consistent" from the human rights standard in section 502B. I believe this change should be made.

My testimony, for the most part, parallels that of Representative Patterson, so rather than repeating all of the arguments in favor of the change, I will try to summarize quickly.

I also want to apologize for arriving late, but I had a class in constitutional law which did not end until 2:15.

I think a reading of the legislative history shows that Congress intended in section 502B that governments practicing torture, arbitrary detention, or summary execution on a significant scale were to be denied U.S. security assistance. I believe the intent has been distorted by the way in which the executive has interpreted the word "consistent."

It is claimed that even though gross violations of human rights are significant in number and recurrent, the pattern is not consistent if there is some decline in the overall number of abuses.

To illustrate, suppose that country A tortures and executes 400 political prisoners a year. It would be considered to engage in a consistent pattern of gross violation, and therefore ineligible for security assistance. But if the number of executions falls by 25 percent, to 300 a year, under the administration's interpretation of the law, the reduction is considered a positive step and the pattern is considered no longer consistent.

There are a number of examples in which this interpretation has been used to justify resuming security assistance, among them Guatemala and Uruguay. Mr. Patterson referred to them in his testimony. Aside from these specific examples, the basic analytic flaw in this interpretation of consistent is that it assumes that any numerical decline must be the result of positive steps taken to curb violations. That assumption is often not the case. In the absence of compelling evidence to the contrary, it is just as likely that the fractional decline, which is what we are talking about, is due to the effectiveness of oppression.

So many opponents of the government may have already been killed that fewer remain to oppress. Or it may be that oppression has worked so effectively that fewer citizens are willing to engage in political activities that will subject them to risk. So the danger of relying on the numerical decline is that it may reflect the success of oppression rather than a lessening or an improvement.

I also think that there are instances in the past 2 years in which the administration has manipulated statistics to try to show that a decline has occurred. Chile is one example and Guatemala is another, in which the numbers have been selected out of context to document a decline, where, in fact, there has been none.

Eliminating the word "consistent" would signal disagreement with the executive's misinterpretation of congressional intent and help restore the original intended meaning of the law.

In my testimony, I have tried to answer the three arguments against deleting the word "consistent." In the interest of time, I would like to refer to one of them that is specifically contained in the question which Mr. Abrams posed: What about improvements? How do we provide rewards when there is a partial decline in the level of torture or summary executions?

I think there is a twofold answer to that question. The first is that we have other carrots that we can use. The second is that security and economic assistance are the most highly prized carrots we have to offer. If a government is continuing to engage in torture, summary execution, and arbitrary detention on a significant scale, knowing it is at the cost of what it desires most, then we have to ask ourselves whether this is an appropriate situation in which to provide such a reward.

Correctly, the incentive for a government to become eligible for security assistance is very strong. It would create a perverse structure of incentives to allow security assistance to go to a country that continues to engage in gross violations of a significant scale. To repeat the point, if a country continues to torture and execute and arbitrarily detain large numbers of people, knowing that it will cost it security assistance from the United States, it is because that government has made a judgment that its supreme national interest and survival require suppressing dissent. The existing incentive to eliminate executions is already so strong. If the incentive doesn't work the reason is that supreme national interest determines what happens. I don't think any government undertakes to kill and torture a number of its own citizens, unless it believes that tremendous amount is at stake. I am saying not trying to justify such behavior, but just to put into context the idea that we should use security assistance as a reward for partial improvement. The notion that if we provide some reward for partial progress, then they will then make additional progress, in most cases is wrong. Thank you very much, Mr. Cohen.

[Mr. Cohen's prepared statement follows:]

PREPARED STATEMENT OF STEPHEN B. COHEN, INTERNATIONAL Human Rights Law GROUP, Associate Professor of Law, Georgetown UniversITY LAW CENTER

Mr.

before

Chairman, I want to thank you for inviting me to testify and International

the

Organizations.

Subcommittee

on Human Rights

My name is Stephen Cohen, and I am a professor of law at Georgetown University. From 1977 to 1980, I served in the Department of State, first in the office of Policy Planning and later in the Bureau of Human Rights and Humanitarian Affairs. I am appearing here today on behalf of the International Human Rights Law Group, an association of jurists concerned with the establishment of international norms for human rights.

attention is given to

This subcommittee has played a critical role in seeing that sufficient human rights concerns in the formulation of U.S. foreign policy. During the 1970s, it originated or drafted virtually all of the U.S. legislation on human rights and foreign affairs. It has also provided congressional oversight to ensure that the legislation is in fact carried out.

Since 1973, the law has conditioned a foreign government's eligibility for U.S. economic and security assistance on its human rights record. There are three principal pieces of legislation. Section 502B of the Foreign Assistance Act of 1961 directs the withholding of security assistance. Section 116 of the same act mandates the denial of bilateral economic aid. Section 701 of the

representatives to the Multilateral Development Banks to vote "no" on certain loans. Under current law, all three statutes contain the same legal standard for determining when action must be taken: when the proposed aid recipient "engages in a consistent pattern of gross violations of internationally recognized human rights."

The House Banking Committee has already recommended that the word "consistent" be dropped from the legal standard in the human rights legislation under its jurisdiction, Section 701 of the International Financial Institutions Act. The issue before this subcommittee today is whether to recommend Section 502B of the Foreign Assistance Act. pattern, etc.",

an identical change in

(The phrase, "consistent

appears three separate times in sub-section

502B(a) (2); thus, the word "consistent" would have to be eliminated

from each.)

For the reasons stated below, I believe that the recommendation should be made. My testimony is divided into four parts. First, I will discuss the original meaning that Congress intended for the phrase "consistent pattern of gross violations of internationally recognized human rights." Second, I will describe how this intended meaning has been distorted by the Executive so that the statute is implemented in a fashion that defies Congress' purpose. Third, I will explain how the proposed change in the legal standard can help correct this problem. Fourth, I will answer the arguments against making the change.

L THE ORIGINAL MEANING INTENDED BY CONGRESS

There are three basic elements in the legal standard that specify when economic or security assistance is to be terminated.

First,

24-825 0-84--12

there must be violations of "internationally recognized human rights." Second, the violations must be "gross." Third, the frequency of violations must result in a "consistent pattern."

A definition of internationally recognized human rights is contained in Section 502B itself. According to subsection (d)(1), this term includes "torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges and trial, and other flagrant denial of the right to life, liberty, or the security of the person."

must be "gross," means

The second element, that the violations that they must be significant in their impact. For example, although arbitrary imprisonment is one of the listed violations, detention without charge for several days is probably not by itself "gross" because of the relatively brief period of confinement.

Third, the element of a "consistent pattern" means that abuses must be significant in number and recurrent. Isolated instances of torture or summary execution, while certainly gross violations, would not trigger termination of economic and security assistance under the legislation.

Thus, Congress intended that governments practicing torture, arbitrary detention, or summary execution on a significant scale were to be encompassed under the standard and thereby denied U.S. security and economic assistance.

The distortion of the intended meaning arises from the interpretation given by the Executive to the word "consistent." It is claimed that even if gross violations of internationally recognized