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Mr. BARTELL. Mr. Chairman, I do have an appointment and must leave.

The CHAIRMAN. Thank you very much. You are excused. We thank you both very much for being here.

Ms. KATSON. I would like to say that even though the deck was kind of stacked against us today, because we have only been questioned by Senators who are in favor of the treaty, it was my pleasure to have the opportunity to appear before this committee.

The CHAIRMAN. We very much appreciate your being here. We will carry on the debate, we hope, at the level that you have maintained today.

Mr. BARTELL. Thank you.
The CHAIRMAN. Thank you.
Professor Moore?

STATEMENT OF PROF. JOHN NORTON MOORE, UNIVERSITY OF

VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VA. Ambassador MOORE. Thank you, Mr. Chairman.

In addition to placing into the record my own statement, I would like to also place in the record the complete statements of my two colleagues and the report of the American Bar Association Committee and the House of Delegates resolution on this, and then perhaps just take 2 minutes to add one word about the American Bar Association's support.

That word, Mr. Chairman, is that the American Bar Association is foursquare behind, and views this as an important effort, your historic initiative in beginning this process of United States ratification of the convention to prevent the crime of genocide.

Mr. Chairman, I would like also to indicate that Mr. David R. Brinks, the president of the American Bar Association, was sorry that he could not come and personally testify on this issue today. He believes that this is one of the important top legislative priorities of the American Bar Association, and that in terms of the legislative agenda, this is one of the most important measures to be supported in which the American Bar Association will do everything that it can to see a favorable outcome.

Finally, Mr. Chairman, let me just make two points about the role of the American Bar Association on this occasion. The first is that the American Bar Association is really the most authoritative organ of the organized bar. It is therefore appropriate and, it seems to me, particularly important that the American Bar Association has overwhelmingly determined, and this is not a close vote, that there is no legal impediment whatsoever to the U.S. accession to the Genocide Convention, whether we are talking scope of the treaty power, specific provisions of the Constitution, or any other issue, federalism, sovereignty, or any other legal question. In short, there is simply no legal impediment.

Second, members of the legal profession and the bar have a public responsibility to promote the development of law and the attainment of justice. Few issues that we can look at in this regard could be more important than strengthening the normative basis against the kind of abhorrent mass murder, mass terrorism with which we are dealing in this convention.

Mr. Chairman, that concludes any remarks that I would have. I think that my colleague, Mr. Bitker, may not have had an opportunity to complete all of his remarks, so I would simply, with your indulgence, see if he would like to add anything to this.

If you would like, we have been listening to the arguments against. We have had an opportunity to respond to only one or two of those. Only if

you like and have time, we have responses to some seven or eight others that we have heard this morning.

(Messrs. Moore's, Buergenthal's, and Bitker's prepared statements follow:]

PREPARED STATEMENT OF JOHN NORTON MOORE, VICE-CHAIRMAN, DIVISION OF

PUBLIO INTERNATIONAL LAW, SECTION OF INTERATIONAL LAW; THOMAS BUERGENTHAL, CHAIRMAN, COMMITTEE ON INTERNATIONAL HUMAN RIGHTS, SECTION OF INTERNATIONAL LAW; AND BRUNO BITKER, MEMBER, STANDING COMMITTEE ON WORLD ORDER UNDER LAW, AMERICAN BAR ASSOCIATION Mr. Chairman and Members of the Committee : My name is John Norton Moore, and I am honored to accept your invitation, on behalf of the American Bar Association President, to express the support of the 285,000-member ABA for immediate Senate advice and consent to ratification of the Convention on the Prevention and Punishment of the Crime of Genocide.

I appear today as the Divisional Vice-Chairman for Public International Law of the ABA's Section of International Law, I am the Walter Brown Professor of Law at the University of Virginia and direct that university's Center for Law and National Security. Accompanying me are two distinguished international law scholars and recognized experts on the Genocide Convention.

The Honorable Thomas Buergenthal is Dean of the Washington College of Law of the American University, is a Judge on the Inter-American Court of Human Rights and serves as Chairman of the International Law Section's Committee on International Human Rights.

Mr. Bruno Bitker is a lawyer in Milwaukee, Wisconsin and is a member, and past chairman, of the Association's Standing Committee on World Order Under Law. Mr. Bitker is a leader, both within and without the Association, in the 32year effort to ratify the Genocide Convention, and testified to that effect for the ABA before this Committee in 1977.

INTEREST OF THE AMERICAN BAR ASSOCIATION

Mr. Chairman, the ABA has concerned itself with this treaty for nearly as long as the Convention has been before the Senate. Some three months after the Convention was transmitted by President Truman to the Senate on June 16, 1949, for its advice and consent, the Association's House of Delegates resolved to oppose ratification of the treaty. “as submitted” by the President. For over 20 years thereafter, various Association entities continued to study the constitutional issues raised by the Convention; a resolution in support of ratification was defeated in February 1970 by a 130-126 vote of our House of Delegates.

Subsequently, various ABA groups reviewed the understandings and declaration which were the basis for this Committee's approval of the Convention by voice vote early in 1973. These three understandings and a declaration fully resolved the constitutional concerns of the ABA. Consequently, in February 1976, the Association's House of Delegates by voice vote approved a resolution favoring ratification with the understandings and declaration recommended by this Committee.

Ratification of the Genocide Convention is now one of the legislative priorities of the ABA President, and as such is one of a handful of legislative goals of the highest importance to the Association. As Mr. Bitker told this Committee in 1977, “[C]ertainly nothing is more basic to the obligation the United States assumed when it ratified the U.N. Charter, than to outlaw mass murder of a national, ethnical, racial or religious group, as such, whether committed in time of peace or war .. (United States'] failure to ratify borders on constituting a national disgrace.” We urge this Committee, the Senate and our

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Government to end this period of national disgrace by promptly ratifying this Convention.

As lawyers, we think the legal profession has a unique role to play in this ratification process. In a May 1977 address to the 20th anniversary meeting of the Inter-American Bar Foundation, then-ABA President William B. Spann observed that the Association's Code of Professional Responsibility “makes it quite clear that a lawyer should not regard himself simply as a functionary of the legal system, but as one who must defend and develop it.” 1 There is no more basic human right for which the legal system was established to defend, than the right of a human to live.

There are countries throughout the world whose governmental recognition of this right could be questioned. Mass slaughter of hundreds of thousands of citizens from identifiable ethnic or religious groups has repulsed the world in recent years. These events are evidence that genocide is a crime against mankind and one threatening the peace and security of the world, that it can only be prevented and punished through enforcement of recognized international law, that the United States should be the leading force in the world officially to condemn this crime. To state our opposition to genocide, but to refrain from actively seeking to prevent it, is merely to sanction its perpetuation.

In February 1976 the ABA's policy-making House of Delegates adopted the following resolution by voice vote :

Be It Resolved, That the American Bar Association favors the accession of the United States to the United Nations Convention on the Prevention and Punishment of the Crime of Genocide with the following Understandings and Declaration which have been approved by the Senate Committee on Foreign Relations:

1. That the U.S. Government understands and construes the words "intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such" appearing in article II to mean the intent to destroy a national, ethnical, racial or religious group by the acts specified in article II in such a manner as to affect a substantial part of the group concerned.

2. That the U.S. Government understands and construes the words "mental harm" appearing in article II (b) of this Convention to mean permanent impairment of mental faculties.

3. That the U.S. Government understands and construes article VI of the Convention in accordance with the agreed language of the Report of the Legal Committee of the United Nations General Assembly that nothing in Article VI shall affect the right of any state to bring to trial before its own tribunals of any of its nationals for acts committed outside the state.

4. That the U.S. Government declares that it will not deposit its instrument of ratification until after the implementing legislation referred to in article V has been enacted.

Be It Further Resolved, That the President of the American Bar Association or his designee is hereby authorized to present the views of the Association as herein expressed before the appropriate committees of the Congress and other agencies of the Government of the United States.

The American Bar Association, through adoption of this policy, agrees with the Departments of State and Justice that the Convention, along with the recommended understandings and declaration, pose no constitutional obstacles to ratification. Were this not the case, the first stated purpose of the ABA—".. to uphold and defend the Constitution of the United States ."-would prohibit us from supporting ratification, much less supporting it as strongly as we do.

WHAT THE CONVENTION PROVIDES- OBLIGATIONS OF THE UNITED STATES

The Genocide Convention has established within the body of international law the intentional crime of mass destruction of people of the whole or a substantial part of a national, ethnical, racial or religious group. Applicable in peacetime and during war, genocidal acts include intentional killing, causing of serious bodily or mental harm (understood by the United States to mean “permanent impairment of mental faculties”), inflicting living conditions so adverse as to intend to cause the group's destruction, imposing measures intended to prevent births within the group-thus destroying the group, and forcibly transferring children of the group to another group. Punishable acts include the actual commission of genocide, as well as conspiracy in, or direct and public incitement of, or attempt to commit, genocide, or complicity in committing genocide.

1 William B. Spann, "Lawyers and the Promotion of Human Rights in America", The Legal Protection of Human Rights in the Western Hemisphere, 22, Inter-American Bar Foundation (March 1978).

2 International Convention on the Prevention and Punishment of the Crime of Genocide, Report on Executive 0, 81st Congress, 1st Session (Ex. Report No. 93–5 ; March 6, 1973).

Persons charged wth any of these offenses, whether public officials or private citizens, shall be tried in the state where the offense was alleged to have occurred or before an international tribunal. No such international tribunal or competent jurisdiction exists; if one were established, the United States Congress would have to approve submitting to the new court's jurisdiction. One of the understandings approved by the Foreign Relations Committee, and endorsed by the ABA, would make clear that U.S. citizens could be tried in U.S. courts for genocidal acts committed abroad. Furthermore, while the Convention provides that contracting parties shall grant extradition requests “in accordance with their laws and treaties in force" (Article VII), the Convention itself is not an extradition treaty. Since no current extradition treaties to which the United States is a party cover the crime of genocide, the United States would not be obligated to extradite U.S. citizens to a foreign country. Any future extradition treaty which might include the crime of genocide would, of course, be subject to the advise and consent power of the Senate. Each country would establish its own penalties to be imposed for convictions of the enumerated crimes.

A contracting party to the Convention may request appropriate U.N. entities to take action to assist in preventing or suppressing genocide (Article VIII). Also, the contracting parties will submit to the International Court of Justice disputes concerning the "interpretation, application or fulfillment” of the terms of the Convention (Article IX). This provision does not fall under the Connally amendment, by which the United States determines which cases are within the domestic jurisdiction of the United States, and thus outside the court's jurisdiction. However, provisions comparable to Article IX for resolution of disputes by the International Court of Justice are included in such treaties as the Japanese Peace Treaty and the Antarctic Treaty, to which the United States is a party.

Finally, the United States has declared that it will not deposit its instrument of ratification following Senate approval until after enactment by Congress of implementing legislation. Thus, the Genocide Convention is not a self-executing treaty, but rather one requiring the usual legislative approval of both Houses of Congress and the President.

Over the lengthy period of congressional debate over the meaning and possible adverse effects of the Convention's provisions, a number of recurring questions have been raised. For the benefit of the Committee, we attach to this statement nine of the most frequently asked questions, and our responses. To summarize the attached responses, the ABA simply finds no responsible support for various constitutional questions raised against the Convention. To suggest that the protection against mass murder of a selected people is an improper subject of international concern, and thus without this nation's treaty power, is nonsense. Similarly, other legal issues concerning, for instance, the effect of vo’untary birth control, the acts of soldiers in wartime and the “incitement" language of Article III all have long been resolved in the context of U.S. domestic law or international law.

The fact that these legal issues are without merit is perhaps best substantiated by the testimony before this Committee in 1970 by then-Assistant Attorney General William H. Rehnquist :

“In 1950 some of the questions concerning Federal jurisdiction and the treaty power were considered somewhat novel. However, developments in the intervening years—the extensive use of the treaty power and the growth of Federal criminal jurisdiction-have, it seems, illuminated both these areas to the point where I believe I can safely say that the questions before the Committee and the Senate are more matters of policy than questions of legal power. Other witnesses in support of this treaty have, I believe, made this clear."

THE GENOCIDE CONVENTION SHOULD BE RATIFIED NOW

The United States should ratify the Genocide Convention immediately because such an act would be a timely expression of this nation's unalterable commitment to the rule of law in international affairs, because it would strengthen our hand in the current conduct of foreign relations with allies and adversaries alike, and because it would place us in the company of 89 other nations—where we should

3 See Ex. Report No. 93–5 for the text of proposed implementing legislation, pages 21–23, 93rd Congress, 1st Session (March 6, 1973).

have been long ago—in expressing our collective national repugnance to mass acts of murder of unspeakable proportions.

As a member nation of the United Nations, and as a signatory to the Helsinki Accords, among other agreements, the United States has demonstrated its leadership in seeking to bring more order to the peaceful relations among nations. The essence of this commitment is our devotion to an ordered existence governed by universally accepted rules and procedures—the rule of law. Since our own freedoms are assured through adherence to the rule of law-a concept by no means universally accepted throughout the world-our sovereignty is that much more enhanced through our efforts to expand the primary of the rule of law in our relations with other nations. Ratification of the Genocide Convention furthers this cause.

It is clear to most observers that the Soviet Union and other nations with less regard for the type of freedoms we take for granted pose the most serious threat to our national interests. As Deau Buergenthal recently stated, the threat of the Soviet Union :

"Is not only military, or subversive, it is also ideological and it must therefore be confronted on the ideological level as well . . . A sound human rights policy provides the U.S. with an ideology that distinguishes us most clearly from the Soviet Union and seriously undercuts the ideological appeal of Communism."

However, our ideological hand is not strong in dealing with the Soviets when our criticism of their treatment of religious or ethnic groups prompts the question of why the United States has not ratified the Genocide Convention. In the terminology of legal equity, ratification of the Convention would bring us to the international negotiating table with “clean hands."

Finally, it is important to remember that this treaty is hardly a novel idea. It has been in force for some 30 years and is the law in the majority of the world. The United States was a leading participant in drafting the treaty and in advocating its importance. The crime of genocide surely is the most difficult for civilized people to comprehend, and the most shocking to the human conscience. The extent to which most of the rest of the world has signaled its horror of this crime by ratifying the Convention is both a measure of this country's humiliation at not being a signatory, and the strongest reason why ratification should wait no longer.

Mr. Chairman, we thank you for this opportunity to again urge ratification of this Convention, and will be pleased to respond to your questions.

QUESTIONS AND ANSWERS CONCERNING THE GENOCIDE CONVENTION Question 1. Doesn't the Convention allow the United Nations to investigate United States domestic officials and thus subject our Government to irresponsible charges of genocide in the World Forum?

Answer. Article VIII which empowers a contracting party to call upon the competent organs of the United Nations “to take such action under the Charter .. as they consider appropriate for the powers of the United Nations. Genocide, involving mass murder on a broad scale, would violate not only the human rights provisions of the UN Charter but would normally involve a threat to the peace and therefore would clearly be within the powers of the UN to discuss. It need also be noted that article 2(7) of the UN Charter contains a proscription against intervention in matters which are essentially within the domestic jurisdiction of any state. ..."

The argument that ratification of the Convention would subject the United States to irresponsible charges of genocide is without foundation. Ratification would not alter the present situation to our disadvantage. Spurious propaganda charges alleging genocide can be made by our enemies whether or not the United States is a party to the Convention. If anything, ratification would improve our position to rebut spurious charges by subjecting our behavior to a precise legal definition of genocide. Further, our failure to ratify in fact weakens the effectiveness of our replies.

Question 2. Isn't it true that the Genocide Convention would allow United States POW's to be charged with genocide by enemy nations?

Answer. An inference such as this overlooks the simple reality that such a charge may be made by the authorities of a state involved in a conflict with the United States with or without the Genocide Convention. There is nothing in the Genocide Convention that would provide warrant for charges by an enemy nation that our POW's are guilty of genocide. The existence of the Geno

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