So thank you for this very important and very timely intervention, and all of you have made excellent points. Tom Tancredo said it best, all of us wish that the State Department had heard everything you said earlier, but we will convey it, and some have stayed to listen as well. So we appreciate it.

The hearing is adjourned.

[Whereupon, at 2:35 p.m., the Committee was adjourned.]

APPENDIX

MATERIAL SUBMITTED FOR THE HEARING RECORD

QUESTIONS FOR THE RECORD SUBMITTED TO THE HONORABLE WALTER KANSTEINER, ASSISTANT SECRETARY, BUREAU OF AFRICAN AFFAIRS, U.S. DEPARTMENT OF STATE, BY THE HONORABLE JOSEPH CROWLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Question 1:

How can the two sides overcome their distrust of each other and stop seeing this conflict as a zero-sum game?

Answer:

Urging both sides to lay down preconceived notions and negotiating strategies is the only way the Sudanese civil war will end. This is no simple task, however. The civil war has been raging off and on since 1956.

The effort to move the parties to the conflict away from their entrenched feelings of distrust began with the introduction of Special Envoy Danforth's four interim tests. While the tests are still under implementation, there has been an opportunity for each side to build, and demonstrate, a measure of trust. Despite some shortcomings, Senator Danforth has identified, and President Bush agreed, that both parties have shown sufficient will for the United States to assist in the pursuit of peace.

The United States, in concert with the international community, is working to build on that will by holding the parties to their agreements. This is accomplished through careful monitoring and verifications of the agreements. Only through these mechanisms are the parties able to develop the trust they need to carry on negotiations for the peace and end the civil war.

Question 2:

How might the International Criminal Court (ICC) be used to promote peace initiatives in Sudan or, at the very least, to deter such crimes from being committee in the future?

Answer:

The International Criminal Court (ICC) is unlikely to play a significant part in promoting peace initiatives in Sudan. Peace initiatives will succeed if they address the points of contention and if the belligerent's desire to live by them is legitimate. That is not to say, however, that the parties to the conflict should be immune from the threat of prosecution for war crimes. They should be prosecuted to the extent allowable. That prosecution, however, should be one that serves the Sudanese people's desire for justice or, like the South African model, reconciliation. Consideration should also be given to indigenous justice and arbitration systems that can address war crimes. These systems have been sophisticated and well established within communities in Sudan. Unfortunately, the ongoing civil war keeps these systems from being effective.

The first step the international community should take to end killings and atrocities should be to end the conflict. Once peace has been achieved, traditional avenues of justice should have the first chance to tackle war crimes, genocide and other issues. Once traditional forms of justice have been utilized, it should be up to the will of the Sudanese people to determine if justice is to be meted-out by an international tribunal on war crimes.

Question 3:

If the United States offered a resolution to the United Nations Security Council detailing the continuing crimes against humanity and war crimes being committee in (89)

the Sudan, thereby holding leaders of the National Islamic Front regime in Khartoum individually accountable for their actions and if the Security Council referred the Sudanese abuses to the ICC do you think the Sudanese government's behavior would change? Would such steps help restore peace in the region?

Answer:

Bringing charges of war crimes and crimes against humanity is certainly one step the international community can take to put pressure on the regime in Khartoum to reach a peaceful settlement.

Unfortunately a number of actors and groups that have participated in the civil war are tarnished by accusations of war crimes. Subsequently, if prosecutors were to focus on the government along for war crimes, this would detract from any proceeding's balance and legitimacy. The government's best defense could, and most likely would, be that until accusations of war crimes are prosecuted evenly and in accordance with the rule of law, no verdict would be legitimate.

The best avenue for seeking peace, consequently, is to apply the fullest force of our diplomatic efforts to move the parties to the peace table and help them negotiate a solution that is both just and lasting.

PREPARED STATEMENT OF THE HONORABLE JEFF FLAKE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA

Any discussion of this issue must begin by acknowledging that all involved here today support the goal of a just peace in Sudan and an end to the suffering of its people.

From the beginning of his Administration, President Bush has made clear his personal concern about Sudan and has spoken out about the terrible war waged by the government in Khartoum against its own people, especially in southern Sudan. With an estimated two million people dead and four million displaced, this war has taken an immense and unacceptable human toll.

The President has already taken significant steps to try to end this war and help the people of the South. First, he appointed AID Administrator Andrew Natsios as special humanitarian coordinator for Sudan. Second, as we will hear today, the President named former Senator John Danforth as special envoy for peace in Sudan. I look forward to hearing from Assistant Secretary of State Kansteiner on the Administration's efforts.

Let me just make a few remarks regarding the Sudan Peace Act. All versions share an evident desire to promote peace and to alleviate the terrible suffering of the peoples of southern Sudan, a goal we of course share as well. Moreover, all versions appear in the context of comprehensive U.S. economic sanctions against Sudan, which remain in place and continue to be enforced.

Since the bill passed the House last year, I have become concerned with some of the provisions in the House version of the bill, specifically Sections 8 and 9.

The Administration, while supporting the passage of a Sudan Peace Act, has also voiced some concerns with those provisions. The official Statement of Administration Policy (SAP) on the bill when it came to the House floor opposed Section 8 because "of the potential to damage U.S. and international capital markets and to undermine the independence and prerogative of the SEC to determine the nature and definition of information that is material to the investor." Additionally, with respect to Section 9, the spokesman for the State Department stated last August 8 that the Administration believes that prohibiting access to capital markets in the U.S. would run counter to global U.S. support for open markets, would undermine our financial market competitiveness, and could end up impeding the free flow of capital worldwide-all of which are inimical to U.S. interests. Also, Federal Reserve Chairman Alan Greenspan testified to Congress that "the clear outcome of such a law would effectively be to move financing from New York to London. I'm most concerned that if we move in directions that undermine our financial capacity, we are undermining the potential for long-term growth in the American economy."

Neither Section 8 nor Section 9 of the House bill seems likely to achieve its goal, while both provisions will likely harm U.S. capital markets. Both sections address the oil industry and foreign investment in Sudan. And obviously oil is a major factor in the war. However, if the U.S. unilaterally passed capital market sanctions, it would merely enable the Khartoum regime to play one government against the other and find an easy replacement for any western oil company that may leave Sudan.

Section 9 would force oil companies to raise capital overseas rather than in U.S. markets. The negative aspect of this section-shifting business away from our mar

kets, harming our ability to compete for international finance, and calling into question the reliability and openness of U.S. capital markets-is not balanced by any offsetting gains. Oil companies involved in Sudan would readily be able to raise capital they need offshore, so that neither they nor the Sudanese oil industry would be affected in any significant way.

Section 8 seeks to encourage disclosure of involvement in Sudan by any company active there. While the goal is the positive one of giving American investors all the information they need, the method is problematic. The independence of the Securities and Exchange Commission should not be compromised by forcing upon it decisions about materiality that should, in the best interest of investors, be made by experts based on the merits. The SEC should decide whether a company's significant investment in Sudan might affect its share price, and thus be considered material information to investors. Were the precedent established of having such decisions made by Congressional vote, one can easily see the future imposition of a wide range of political decisions-such as labor or environmental standards, all potentially cloaked as "materiality”-judgments best left to the SEC if investors are to be protected.

For these reasons I believe the best way to bring peace to the Sudanese people is to let the Administration continue its active efforts and see what the outcome is.