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Ambassador MOORE. As a matter of customary international law, it wouldn't make any difference whether they had ratified in that particular case. But I would agree with the thrust of your point, which is that there are guarantees here that, if anything, we are in favor of protecting Americans and preventing disinformation campaigns. There is no doubt that disinformation campaigns are going to be waged against us. They have in the past. They are going to be in the future. The question is, Is this something that is somehow going to harm that, or is it something that is going to try to curtail the possibility of that?

In two respects, it seems to me it curtails that, if we ratify this. One is, we would have a very specific definition of intent that is an extremely narrowly drawn, and properly so, definition of this particularly heinous crime. It is very narrowly drawn in the tradition of criminal law in general, and because of that it seems to me that that works to prevent exaggerated charges of genocide, relying generally on customary international law or erroneous arguments as to what it is.

Second, it seems to me that arguments that can be made by negative implication from the United States not being a party to this, however, much we believe they are utterly unreasonable and go completely counter to all of the fundamental values of our Nation and of Western nations, indeed, the community of mankind, negative implications will be drawn by some that will be an aid to disinformation campaigns, and it seems to me we strengthen our ability to rebut those by—

Senator Dodd. I agree with you, but I am more curious about the legal ramifications. Judge Buergenthal.

Judge BUERGENTHAL. Senator, I think the answer to your question is that if the United States is a party to the Genocide Convention and if an American citizen, for example, is tried in a foreign country and we are dissatisfied with, that country's application of genocide law in the trial, we then have the right under the convention to take the matter to the International Court of Justice. We do not have that right if we are not party to the convention.

Senator Dody. That is the key point I was trying to raise, and I presume we would also have an argument at least because of our ratification creating parallel jurisdiction, we would be able to make a case for actually trying that citizen in our own country as a signatory to the Genocide Convention. Is that correct as well?

Judge BUERGENTIIAL. That is correct. Exactly.

Senator Dopp. And under the present situation would we have that right to do that, or is it at least a cloudy area?

Judge BUERGENTIIAL. At present, since we are not a party to the Genocide Convention, we would be blocked in the International Court by the Connally Reservation. That is to say, we could only file the case under article 36 (2) of the statute of the International Court, and in that situation the other party could invoke the Connally Reservation against us. It could not do that if we came in under the Genocide Convention, because the Connally Reservation does not apply to article 36(1), and this would be the provision under which a case involving the Genocide Convention would be brought.

The CHAIRMAN. Senator Dodd, I wonder if before I leave, Mr. Bitker could comment. I do have to leave shortly, and I would appreciate Mr. Bitker commenting. He has worked on this issue for many years. He comes from Milwaukee, Wis. We certainly welcome you. We would be happy to hear any comments that you would like to make and feel appropriate to make at this time.

STATEMENT OF BRUNO BITKER, PAST CHAIRMAN OF ABA

COMMITTEES, MILWAUKEE, WIS.

Mr. BITKER. Mr. Chairman, having heard the discussion this morning as well as a number of previous occasions when I testified and attended these hearings—incidentally, I have followed the genocide matter now since 1948, so my gray and white hairs entitle me, I suppose, to at least a record of longevity on supporting this Convention.

The CHAIRMAN. I have an increasing respect for seniority, let me say.

(General laughter.]
Senator Dodd. And I am sure that I will too, in time.
[General laughter.]

Mr. BITKER. Mr. Chairman, I would like to suggest this. It is clear to me, as it has been in the past, that this committee is going to report out this treaty favorably. I think there is nothing to be gained any more by arguing on the merits. It is obvious that this committee has recognized and has studied and has appraised these objections, and has come out with the result of supporting the treaty.

I think all of the time and the energy of this committee should be expended in getting it onto the Senate floor for a vote. Now, nize that you may be faced with a filibuster on the floor of the Senate. Recognizing that in advance, I think the members of this committee should work toward the imposition of cloture, No. 1, and second, to securing ratification of the treaty on the Senate floor. Just take it for granted that the majority of the Members of the Senate will support the treaty just like members of this committee support this treaty.

I think that this would produce a practical result. I think the less time that is devoted to arguing these questions which have been raised, as interesting as they are, and that have been raised and discussed at great length in the past, are now immaterial.

The CHAIRMAN. Excuse me. I have an emergency call, and I have to slip out for a minute, but I will be right back.

Mr. BITKER. Should I go ahead and continue with what I have to

I recog

say?

Senator Dodd (presiding]. Please go ahead. I will be acting chairman. And let me say, what else would you like to do today? This is a rare opportunity for me.

[General laughter.]

Mr. BITKER. Mr. Chairman, I think I have made my point actually. I don't want to get into discussions of questions of merits that are raised here. This committee is aware of them and obviously favors the treaty. So let's get now to the job of getting it by the Senate floor. I think all of the time and energy of the members of this committee should be devoted to getting it onto the Senate floor for a vote and to getting a two-thirds vote for ratification on the Senate floor.

Senator Dodd. Let me say that we are very privileged today to have Judge Buergenthal here. He is not only a legal scholar, but personally has been a victim of genocide. Judge Buergenthal, if you have any general comments that you would like to make at this time, the committee certainly would like to hear them, and Mr. Bitker, thank you very much for your comments.

STATEMENT OF DEAN THOMAS BUERGENTHAL, AMERICAN

UNIVERSITY LAW SCHOOL, WASHINGTON, D.C. Judge BUERGENTHAL. Thank you, Mr. Chairman. It is very kind of you to refer to my background. As a naturalized U.S. citizen and as an international lawyer and as a survivor of the Auschwitz concentration camp, I am profoundly moved and honored to have this opportunity to appear before your committee as the representative of the American Bar Association to urge U.S. ratification of a treaty that symbolizes mankind's revulsion against and rejection of the ideology that made the Holocaust possible, and in which I lost all but one member of my immediate family.

I was struck by the fact, Mr. Chairman, that there aren't very many countries in the world where a person with my background would be accorded the privilege to represent the organized bar before a legislative body on an issue of such importance or, for that matter, on any issue. It is therefore a source of considerable sadness for me that this great country of ours, which is committed to and lives by the very ideals that provide the strongest bulwark against genocide should, 36 years after World War II, still not have ratified the Genocide Convention.

Today, even without the Genocide Convention, as you pointed out, Mr. Chairman, international law outlaws genocide. That conclusion is no longer in doubt. The convention thus merely codifies what international law already prohibits. Although the United States would therefore not be assuming any additional substantive legal obligations it does not already have, U.S. ratification of the Genocide Convention would be an act of great symbolic importance, because it would associate the United States with the international community's unequivocal rejection of genocide and of the totalitarian ideologies, whether of the right or of the left, that produce genocide.

In my opinion, the United States cannot hope to play a leading role in opposing totalitarianism and is promoting individual liberties in the world while refusing at the same time to associate itself with those international instruments in which the international community proclaims its allegiance to the very principles the United States advocates.

The fact that many of the 90 governments that have ratified the Genocide Convention are among the most brutal violators of human rights does not justify our failure to ratify this treatv. Totalitarian regimes sign human rights treaties because that makes for good propaganda, and it is good propaganda precisely because it capitalizes on the university of mankind's yearning for human rights, which is the strongest enemy of totalitarianism.

The United States has to associate itself not only in fact but also symbolically with this yearning. The world's greatest democracy needs to identify itself with mankind's aspirations to hold all governments to a code of conduct that outlaws genocide. Those who fight for democracy and human dignity, whether it be in the Soviet Union, in Poland, in Cambodia, in Afghanistan, or elsewhere, need to know, in order to carry on their struggle, which is also our struggle, that they are not alone, that their struggle is not hopeless, and that at least some governments which ratify human rights treaties are committed to the principles these treaties proclaim.

Mr. Chairman, I happen to believe that our strongest foreign policy asset is this country's commitment to individual freedom and to democracy. When we in our foreign dealings are true to these ideals, we promote our own foreign policy interests to the utmost, and in this way we put communism on the defensive. Nothing, in my opinion, exposes the evil and the weakness of the Communist system more effectively than acts by the United States which demonstrate that this country shares mankind's aspirations for freedom and human dignity which communism so brutally suppresses.

U.S. ratification of the Genocide Convention, by proclaiming this country's solemn commitment to the eradication of genocide, would be just such a demonstration.

In common with the membership of the ABA, I would be totally opposed to U.S. ratification of any treaty that would violate our Constitution. If I thought that the Genocide Convention, in the form in which it is presented for ratification, raised serious constitutional law issues, I would oppose ratification, and so, quite obviously, would the ABA, but this is not the case.

Whether or not the United States should ratify the Convention is a policy decision and not a question of constitutional law. It is a decision that can and should therefore be made by asking whether ratification would advance U.S. foreign policy interests. I believe that the answer to this question is plainly yes, and that is why I hope very much that your committee, Mr. Chairman, and the Senate as a whole will opt for ratification. The Convention symbolizes mankind's aspirations for a better world. The American people in my opinion cannot but benefit from identifying themselves with a worldwide movement that is sustained by these aspirations.

These aspirations are our strongest weapon in the struggle against Communist expansionism and against totalitarian oppression.

Thank you, Mr. Chairman.
[Judge Buergenthal's prepared statement follows:]

PREPARED STATEMENT OF JUDGE THOMAS BUERGENTHAL

Mr. Chairman: My name is Thomas Buergenthal. I am the Chairman of the Human Rights Committee of the International Law Section of the American Bar Association. I am also the Dean of The American University Law School and the only American judge on the Inter-American Court of Human Rights.

Mr. Chairman, it is a great honor for me to appear before your Committee as the representative of the ABA and to support United States ratification of the Genocide Convention. As an international lawyer, as a naturalized U.S. citizen, and as a survivor of the Auschwitz concentration camp, I am profoundly moved to have this opportunity to represent the ABA in urging U.S. ratification of a treaty that symbolizes mankind's revulsion against and rejection of the ideology that made the Holocaust possible and in which I lost all but one member of my immediate family. There are not many countries in the world where a person with my background would be accorded the privilege to represent the organized bar before a legislative body on an issue of such importance or, for that matter, on any issue. It is, therefore, a source of considerable sadness for me that this great country of ours, which is committed to and lives by the very ideals that

provide the strongest bulwark against genocide should, 36 years after World War II, still not have ratified the Genocide Convention.

Today, even without the Genocide Convention, international law outlaws genocide that conclusion is no longer open to doubt. The Convention thus merely codifies what general international law prohibits.

Although the United States would therefore not be assuming any additional substantial legal obligations it does not already have, U.S. ratification of the Genocide Convention would be an act of great symbolic importance because it would associate the United States with the international community's unequivocal rejection of genocide and the totalitarian ideologies, whether of the right or of the left, that produce genocide.

The United States cannot hope to play a leading role in opposing totalitarianism and in promoting individual liberties in the world while refusing, at the same time, to associate itself with those international instruments in which the international community proclaims its allegiance to the very principles the United States advocates.

The fact that many of the 90 governments that have ratified the Genocide Convention are among the most brutal violators of human rights does not justify our failure to ratify this treaty. Totalitarian regimes sign human rights treaties because that makes for good propaganda, but it is good propaganda precisely because it capitalizes on the universality of mankind's yearning for human rights, which is the strongest enemy of totalitarianism. The United States has to associate itself not only in fact but also symbolically with this yearning. The world's greatest democracy needs to identify itself with mankind's aspirations to hold all governments to a code of conduct that outlaws genocide. Those who fight for democracy and human dignity, whether it be in the Soviet Union, in Poland, in Cambodia, in Afghanistan, need to know, in order to carry on their struggle, that they are not alone, that their struggle is not hopeless, and that at least some governments which ratify human rights treaties are committed to the principles these treaties proclaim.

Mr. Chairman, I happen to believe that our strongest foreign policy asset is this country's commitment to individual freedom and democracy. When we, in our foreign dealings, are true to these ideals, we promote our own foreign policy interests to the utmost, putting world Communism on the defensive. Nothing exposes the evil and the weakness of the Communist system more effectively than acts by the United States which demonstrate that this country shares mankind's aspirations for freedom and human dignity which Communism so brutally suppresses. U.S. ratification of the Genocide Convention, by proclaiming this country's solemn commitment to the eradication of genocide, would be just such a demonstration.

In common with the membership of the ABA, .I am totally opposed to U.S. ratification of any treaty that would violate our Constitution. If I thought that the Genocide Convention, in the form in which it is presented for ratification, raised serious constitutional law issues, I would oppose its ratification and so, quite obviously, would the ABA. But this is not the case. Whether or not the United States should ratify the Convention is a policy decision that presents no constitutional law obstacles. It is a decision that can and should therefore be made by asking whether ratification would advance U.S. foreign policy interests. I believe that the answer to this question is yes, and that is why I hope very much that your Committee, Mr. Chairman, and the Senate as a whole will opt for ratification of the Convention. It symbolizes mankind's aspirations for a better world. The American people cannot but benefit from identifying themselves with a world-wide movement that is sustained by these aspirations. These aspirations are our strongest weapon in the struggle against Communist expansionism and totalitarian oppression.

The CHAIRMAN (presiding]. Thank you very much, Dean Buergenthal.

Professor Moore, you have submitted an extraordinarily good statement. Your entire statement will be incorporated into the record. Is there anything further that you would like to add now?

Ambassador MOORE. Yes, Mr. Chairman, I would like to add a word.

The CHAIRMAN. Mr. Bartell?

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