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cide Convention, and more importantly the ratification or rejection of the Convention by the United States, would have little effect on the treatment of American POW's. This was clear in the cases of American POW's held by North Vietnam (where neither state was party to the Convention). Their peril will not be increased by approval of the Convention while peril may be avoided for tens of millions by ratification of the Convention.
Question 3. Wouldn't the Convention change the constitutional structure of the United States in that the United States lacks the constitutional power to make treaties in the human rights field because treatment by a state of its own nationals is a domestic matter and not properly the subject of an international agreement?
Answer. In the past, the power of the United States under the Constitution to make treaties in the human rights field has been questioned on the grounds that the treatment by a state of its nationals is a matter of domestic jurisdiction. This was one of the points raised in opposition to the Genocide Convention by the American Bar Association. However, the special Committee of Lawyers of the President's Commission for the Observance of Human Rights Year 1968 concluded after a survey of the constitutional issues involved and of the past treaty making practice of the United States that, “Treaties which deal with the rights of individuals within their own countries as a matter of international concern may be a proper exercise of the treaty-making power of the United States ..."
The Supreme Court declared in Geofroy v. Rigg8, 133 U.S. 258, 267 (1890), that the treaty-making power may be exercised on any matter “which is properly the subject of negotiation with a foreign country'. The United States is a party to numerous international agreements relating to the activities of its own citizens within the United States because those treaties deal with matters appropriate for international negotiation. Examples include treaties on narcotics, public health and nature conservation, and the Supplementary Convention on Slavery.
In the words of the Special Committee of Lawyers, of which retired Supreme Court Justice Tom C. Clark was chairman: "It may seem almost anachronistic that this question continues to be raised.” This concern needs to be determined objectively in the light of the current interests of the United States in an interdependent world and contemporary concepts of international law-not on the basis of notions that may have been appropriate in a different historical time. In today's world the massive destruction of a racial, religious or national group in one country has an immediate impact on members of this group in other countries, stimulates demand for intervention and adversely affects international relations. As said by the Senate Foreign Relations Committee: “on both moral and practical grounds, the Commission of genocide, involving as it must mass action, cannot help but be of concern to the community of nations”.
Question 4. Isn't it true that the Genocide Convention would alter the balance of authority between the State and Federal government?
Answer. The Constitution, Article 1, Section 8, specifically gives Congress the power to “define and punish ... offenses against the law of Nations". The act of genocide is almost universally recognized in treaties, international custom, and the acts of international organizations as an offense against the law of nations. It is thus clearly within the power of Congress to outlaw the crime of genocide. Ratification of the Genocide convention will add no powers to those the Federal Government already possesses.
Question 5. Wouldn't birth control offered on a voluntary basis be subject to attack as genocide?
Answer. This fear has no foundation. None of the five acts in the Convention definition is genocide unless "committed with intent to destroy in whole or in part" one of the named group as such. Thus, basic to any charge of genocide is the element of intent. To avoid any misconceptions the United States ratification would be accompanied by an understanding that the intent required by the Convention be the intent to destroy one of the named groups “in such a manner as to affect a substantial part of the group concerned”.
Question 6. Couldn't the Convention result in the bringing of United States citizens to arrest and trial in foreign areas on charges of genocide ?
Answer. The Convention does impose an obligation on the State in whose territory acts of genocide had been committed to try all persons charged with committing genocide within that State. However, it is clear from the Convention's negotiating history that the Convention does not bar another State from trying lefore its own tribunals its nationals who had committed such acts outside the State. This theory of concurrent jurisdiction—jurisdiction based on the site of the alleged offense and jurisdiction based on the nationality of the of. fender-has been thoroughly explored. The United States government, however, inade it clear to the other contracting parties that it intends to construe the Convention so as to permit it to try its own nationals for punishable genocidal acts whether committed at home or abroad. This is recorded in the United States understanding that the United States Government "understands and construes Article VI ... that nothing in Article VI shall affect the right of any State to hring to trial before its own tribunals any of its nationals for acts committed outside the State”.
Question 7. Doesn't the Convention open the possibility that United States citizens can be extradited and subject to trial for genocide before a foreign tribunal without constitutional protection and benefits?
Answer. Ratification of the Convention would merely permit the adding on of one or more crimes-genocide to the many crimes for which American citizens may already be extradited under existing extradition treaties. The Convention is not itself an extradition treaty. Neither United States law nor any of the U.S. extradition treaties at present cover genocide. Under the Convention extradition would take place only in accordance with laws and treaties in force. In any case, the United States does not grant extraction unless a prima facie case is established against the accused and unless the accused will be afforded by the requesting state the due process required by our Constitution. Such a treaty could be negotiated in the future with or without the Genocide Convention but it would need to be brought before the Senate for approval.
Question 8. Isn't it true that ratification of the Convention would subject United States citizens to trial before international penal tribunals ?
Answer. No. It is unfortunate draftsmanship that Article VI of the Convention provides persons charged with genocide shall be tried "by such international tribunal as may have jurisdiction ..." No such international tribunal presently exists and there is no negotiation to create one. If any such tribunal were established it would not have jurisdiction over United States nationals unless the United States agreed to such jurisdiction either in the form of the Senate's advise and consent to ratification of a treaty or by statute expressing its consent.
Question 9. Doesn't the provision in the Convention for settlement of disputes by the International Court of Justice unreasonably limit United States sovereignty?
Answer. The provision in the Convention is not a new one in the United States practice. The United States has become a party to many international agreements providing for reference to the International Court of Justice of disputes arising under such agreements, including the Japanese Peace Treaty, the Antarctic Treaty and the Statute of the International Atomic Energy Agency. This provision for the settlement of disputes over the interpretation of the Genocide Convention does not unreasonably limit our sovereignty.
A number of countries, notably the communist countries, have entered reservations to their ratifications stating that they do not accept compulsory reference to the International Court of Justice. The United States is thus placed in a position to invoke those countries reservations in its own behalf to defeat the court's jurisdiction in cases brought under the Convention by countries which have made such a reservation. Our interests are better served by having any charges of genocide against us considered in a less politically motivated forum like the International Court of Justice.
STATEMENT OF BRUNO V. BITKER, CHAIRMAN, COMMITTEE ON INTERNATIONAL HUMAN RIGHTS, SECTION ON INTERNATIONAL LAW, AMERICAN BAR ASSOCIATION
Mr. Chairman and Members of the Committee : My name is Bruno Bitker and I am chairman of the American Association's Committee on International Human Rights of the Section on International Law. I am honored to appear before you today on behalf of the American Bar Association to urge the Senate to give its advice and consent to ratification of the Genocide Convention. I have appeared before this Committee at prior hearings, conveying the support of a variety of organizations. I am, however, especially delighted to do so this time on behalf of the ABA, which represents the organized bar of this country. The American Bar Association, as this Committee is aware, did not easily or quickly arrive at its endorsement of the Genocide Convention. In fact, in 1949, prior to the hearings conducted by this Committee, it had decided not to support ratification because the treaty “involves important constitutional questions ..." not satisfactorily resolved. Subsequently, in 1970, following President Nixon's request to the Senate to act on the Genocide Convention, the ABA again considered the question. But by a divided vote of 130 to 126 in the House of Delegates, it declined to change its earlier stand. Opponents of ratification had frequently cited the ABA position as justifying U.S. inaction. However, upon further study and consideration, in February 1976, the ABA reversed its position and by an overwhelming vote recommended the ratification of the Convention. A copy of that recommendation and the supporting report is filed with this statement.
Though considerable attention was given to this Convention by the bar association before it decided to support it, it does not match the extensive and thorough analysis of every provision accorded to it by this Committee since President Truman, on June 16, 1949, sought the advice and consent of the Senate to ratification. The published hearings of the subcommittee held in January and February, 1950, contain about everything that could be said on the subject, pro and con. The opposition feared that it might undermine our constitutional structure. On the other hand, the favorable testimony was so meaty, it would be difficult to single out specific references. However, if any Senator or staff member wishes to read the supporting testimony of just one witness, I would suggest the remarkable presentation by Philip B. Perlman, Solicitor General of the United States (p. 22, et seq.).
On May 23, 1950, the subcommittee reported out the Convention favorably with one declaration and four understandings (summarized in “Legislative History of the Committee on Foreign Relations," S. Doc. No. 247, 81st Cong., 2d Sess. at p. 27, 1950). The full committee, however, withheld action and for almost two decades it remained in the Senate's deep freeze. Today it is eligible for a place in the "Guiness Book of World Records" as being the o dest treaty pending before the Senate (U.S. Senate, Legislative Calendar, 95th Congress, March 31, 1977).
Although the Senate had taken no further action following the 1950 hearings, in July, 1963, President Kennedy sent to the Senate three human rights treaties (Political Rights of Women, Abolition of Forced Labor, and a Supplementary Slavery Convention). In the course of the hearings on these conventions in 1967, action on the Genocide Convention was urged. However, no action was taken on it.
In 1968, the year designated by the United Nations as Human Rights Year in honor of the 20th anniversary of the adoption of the International Declaration of Human Rights, the President created a President's Commission for the Observance of Human Rights Year. The Commission urged ratification of the Convention. More particularly, it created a special committee of lawyers headed by Supreme Court Justice Tom C. Clark (retired), which included some of the most prominent lawyers in the country. That committee, on which I was privileged to serve, issued a report on the treaty-making power of the United States in human rights matters. Justice Clark, in his letter of transmittal, said in part:
I would like to reiterate here, however, our finding, after a thorough review of judicial, congressional and diplomatic precedents, that human rights are matters of international concern ; and that the President, with the United States concurring, may, on behalf of the United States, under the treaty power of the Constitution, ratify or adhere to any international human rights convention that does not contravene a specific Constitutional prohibition. In its conclusion, the report said:
It may seem almost anachronistic that this question continues to be raised. It is nearly a quarter of a century since this country used the treaty power to become a party to the U.N. Charter, one of those basic purposes is the promotion of human rights for all. The list of parties to the various human rights treaties proposed by the U.N. has become longer each year. In each of the last two years the U.S. Senate has approved a human rights treaty without a single dissenting vote. In December, 1968, the Chie Justice of the United States noted that we as a nation should have been the first to ratify the Genocide Convention and the Race Discrimination Convention. And yet the suggestion persists that this Nation is constitutionally impotent to do what we and the rest of the world have, in fact, been doing.
The report will be of value to members of this Committee and to the staff that drafts your report, and because it is now out of print, I ask consent to file my copy as a part of the record of these hearings.
Two other reports prepared by entities of the American Bar Association in support of ratification appear in the printed hearings of the subcommittee held March 10, 1971. One, at page 147, is the report of the ABA Section on Individual Rights and Responsibilities and the other, at page 196, is the report of the ABA Standing Committee on World Order Under Law. I participated in the drafting of the several reports to which I have alluded in this statement.
In February, 1970, President Nixon reminded the Senate that the Convention continued to be unfinished business and urged prompt action. Thereafter, new hearings were held in April and May, 1970, and again in March, 1971. The Committee reported out the Convention favorably on December 8, 1970, on May 4, 1971, on March 6, 1973 and again on April 29, 1976.
There is no better or more succinct review of the status of the Convention than as set forth in the Committee's 1976 report. That report includes three understandings and one declaration, which are also included in the ABA's resolution of approval. Attached to the Committee's report is the implementing legislation proposed in accordance with Article V of the Convention. I see no problem concerning this legislation and I understand none has been suggested.
Everything that can be said on the constitutional question has been fully discussed in all these hearings and Committee reports. To save time and to avoid unnecessary repetition, I am not repeating these arguments. It is difficult to take seriously any basic constitutional objection to the Convention. It is conceivable, though it has not been urged, that there are public policy objections to ratification. But it would be hiding behind a false front to fail to ratify on spurious constitutional grounds.
As noted in the Committee's last report, no fewer than 82 members of the United Nations (perhaps 83 depending on how China's accession is viewed) have become parties to the Convention. Although the United States was a leader in drafting and securing its adoption in the United States in 1948, it is the outstanding laggard in ratifying it. Its failure to ratify borders on constituting a national disgrace. As the late Chief Justice Earl Warren said in December, 1968, "We as a nation should have been the first to ratify the Genocide Convention ... Instead we may well be the last. .
Since the Committee's 1976 report, a new President of the United States has come into office. President Carter has followed all of his predecessors from Truman through Eisenhower, Kennedy, Johnson, Nixon, and Ford in support of America's furthering the cause of international human rights, including ratifying the Genocide Convention. As President Carter stated on March 17th to the United Nations : "Ours is a commitment, and not just a political posture ... To demonstrate this commitment ... I will work closely with our own Congress in seeking to support the ratification ... of the United Nations Genocide Convention."
The legal obligation with respect to human rights is thus noted by Philip C. Jessup, former member of the International Court of Justice:
"It is already law at least for members of the United Nations, that respect for human dignity and fundamental human rights is obligatory. The duty is imposed by the Charter, a treaty to which they are parties.”
Certainly nothing is more basic to this obligation which the United States assumed when it ratified the U.N. Charter, than to outlaw mass murder of a national, ethnic, racial, or religious group, as such, whether committed in time of peace or war.
I have especially referred in this statement to the endless hearings through which this Committee has sat to emphasize the need to fish or cut bait. The Committee has certainly exhibited great courtesy as well as extreme patience over the years in allowing anyone and everyone to express his or her views on the subject. As it said in 1976, “further hearings on the treaty were not warranted in view of the voluminous record made in hearings in 1950, 1970 and 1971." There appears no provision in the Convention that would support a successful attack on constitutional grounds. No objections asserted on a legal basis justifies delaying ratification. Any conceivable uncertainty as to a few phrases has been cured by the understandings. If there are justifiable reasons of national policy for not ratifying, they have not been advanced. The one new fact to be noted since the last hearing is the favorable action of the American Bar Association. And that has now been recorded.
Each time the Committee has acted it has reported the Convention favorably. But each time it has reached the Senate floor, an actual or threatened filibuster has prevented the Senate from voting to support a commitment we made on
December 9, 1948, when we approved the treaty in the United Nations. It is already past the time to sign on the dotted line.
The United States is now reestablishing its moral leadership in the world. If it now ratifies this Convention, it would be a clear demonstration that it is faithful to its pledge under the U.N. Charter. It would also be acting in its own best national interest.
[Resolution adopted by House of Delegates, American Bar Association, February
17, 1976, and the Supporting Report]
AMERICAN BAR ASSOCIATION-SECTION OF INTERNATIONAL LAW
The Section of International Law recommends adoption of the following resolutions :
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 Declara, tion 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 manner as to effect 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 impair ment 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 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.
Genocide is a crime under international law, whether committed during peace or war.
The contracting parties undertake to prevent and punish such a crime.
Acts constituting Genocide are those committed “with intent to destroy, in whole or in part, a national, ethnical, racial ur religious group, as such” by :
(a) “Killing members of the group";
(c) “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part" ;
(d) “Imposing measures intended to prevent births within the group”;
? In preparation of this report the Section considered the testimony presented at the Hearings on Genocide before the Subcommittee of the Senate Committee on Foreign Relations in 1950, the Senate Committee's Report of December 8, 1970, May 4, 1971 and March 6, 1973 as well as previous reports of other sections and committees of the American Bar Association and other pertinent material including a Report In Support Of The Treaty Making Power of the United States in Human Rights Matters prepared by the Special Committee of Lawyers of the President's Commission for the Observance of Human Rights Year 1969. (See the Appendix 18, House Foreign Affairs Subcommittee Hearings August-December 1973).