He cites atrocities in the Ivory Coast in 2002 and 2003 where rebels waging ethnic warfare sometimes forced people to rape their own relatives. In one case, a middle aged-man told human rights investigators that gunmen forced him to rape his sister while they watched before they raped her. In another instance, a young woman said her brother was killed in front of her after he refused to rape her.
"Such individuals plainly are not persecutors; they are victims of persecution," Mr. Pincus says.
"The consequences of the government's position are breathtaking," he writes. "Entirely blameless conduct would be labeled 'persecution.' "
Solicitor General Gregory Garre says in his brief that Congress sought to draw a bright line in the statute to "firmly dissociate this nation from those who participated in persecution of others." The brief adds: "The fact that a person may have acted under duress does not make the suffering of his victims any less horrific."
The government's brief says Negusie routinely guarded prisoners who were kept in the hot sun as a form of punishment. At least one person Negusie guarded died during such punishment, the brief says. Negusie "acknowledged his integral role in the torture and execution of prisoners, stating that he was the person responsible for 'mak[ing] sure that [the prisoners] stayed out in the sun," the brief says.
Garre highlights a 1981 Supreme Court decision in a case involving Feodor Fedorenko, a Russian soldier captured during World War II by the Nazis. After serving time as a war prisoner, he became a guard at the Treblinka death camp where 800,000 Jews and others were murdered.