ARTICLE III

which are punishable are:

Genocide,

Conspiracy to commit Genocide,

Direct and public incitement to commit Genocide,

Attempt to commit Genocide,

Complicity in Genocide.

ARTICLE IV

ons committing Genocide shall be punished, whether constitutionally sible rulers, public officials or private individuals.

ARTICLE V

contracting parties shall enact the necessary implementing legislation >rce provisions of the Convention.

ARTICLE VI

sons charged with a violation of the Convention are to be tried by a comtribunal in the state where the act was committed or by an international tribunal having jurisdiction of the parties.

ARTICLE VII

the purposes of extradition Genocide is not to be considered a political Extradition shall be granted by the contracting parties in accordance to aws and treaties in force.

ARTICLE VIII

· contracting party may call upon the competent organ of the United ns for action where appropriate to carry out the purport of the Convention.

ARTICLE IX

putes relating to "interpretation, application or fulfillment" of provisions · Convention including those relating to the responsibility of a state for ide or other acts punishable by the Convention shall be submitted to the national Court of Justice at the request of the disputing parties. icle X to XIX are procedural in nature.

DISCUSSION

è purpose of the Convention is to make Genocide an international crime her committed during peace or war. It seeks to prevent and punish when it s the destruction, in whole or in part, of a national, ethnical, racial or religroup as such. The Convention defines Genocide, specifies the acts which itute Genocide, sets forth the obligations of the parties, the place of trial e accused, and provides for submission of disputes relating to interpretaapplication or fulfillment to the International Court of Justice.

first Understanding makes it clear that where the words "intent to dein whole or in part, a national, ethnical, racial or religious group, as such" sed in the definition of the crime of Genocide that it means an intent to by by such acts in such a way as to affect a "substantial" part of the group rned.

e second Understanding states that where the word "mental harm" is used fine a punishable act, it means a "permanent impairment of mental faciliIt does not include violent expressions or prejudice against individual pers of groups. It also would discourage any frivolous allegations of mental

third Understanding is to take care of the situation where a national of United States committed an act outside of the state. Pursuant to this underling the U.S. will have the right to bring to trial before its own tribunals any s nationals for acts committed. There has been considerable discussion reing the Convention from the viewpoint of extradition. It should be underthat the Convention itself is not an extradition treaty.

The Convention is not self-executing but requires necessary implementing legislation. The recommended Declaration makes it clear that we must enact necessary federal legislation pursuant to our constitutional procedure prior to depositing our instrument of ratification.

Attached hereto as Appendix A is a copy of Senate Executive Report 93-5, 93rd Cong. 1st Sess., (1973). This Report lists the pertinent provisions of the Convention and gives an interpretation of each provision based upon the testimony offered at the earlier hearings. A copy of the Convention will also be made available to any interested party.

CONCLUSION

Eighty-two nations to-date have ratified and/or acceded to the Genocide Convention. The world community has, therefore, defined Genocide as "a crime against the laws of nations". The United States is a party to other treaties that define and establish an international crime. (The Geneva Conventions On Protection Of War Victims, 1949, TIAS 3362–3365; The Conventions For The Regulation of Whaling, 1935, TS 880, 1946, TIAS 1849; the International Convention for the Prevention of the Pollution of the Sea by Oil, 1954, TIAS 4900 and the Single Convention 'On Narcotic Drugs, 1961, TIAS 6298.) Statement made in the past and raised in the Senate and the ABA House of Delegates are no longer pertinent. The passage of time has confirmed that Genocide is a matter of "international concern" which should be regulated as an international crime. Acceding to the Convention at this time is a positive step in the national interest of our country. The American Bar Association should come forward and place on record its positive support.

This resolution was overwhelmingly approved by the Council of the Section of International Law at its Mid-Winter Meeting on December 5-7, 1975.

Respectfully submitted.

RICHARD P. BROWN, Jr.,

Chairman, Section of International Law.

The CHAIRMAN. Let me say that we will keep the record open for you to provide responses for those. Regretfully, the floor is holding up now for me to get down for the Glenn-Percy amendment to the Defense Department bill which we are offering. I have asked the Senate floor to hold off for just a few minutes, so we will keep the record open then, and would appreciate your response on those submitted to us. I would appreciate hearing from you again, Mr. Bitker, in summary. Mr. BITKER. Mr. Chairman, in summary, I think there is nothing to be added to what I said before, to what this committee has, shall I say, suffered through on various occasions, and at various times it has always come up with the same conclusion. I urge this committee and its members to devote its time and energy to reporting this out favorably by this committee, and second, getting it on the floor of the Senate, to imposing cloture if a filibuster actually is attempted, and securing its passage on the floor in the Senate.

I think this is the single most important thing. I think the matter of discussing the merits has long gone by. That expresses my feelings about this now.

The CHAIRMAN. I thank you very much.

I would like to say that I am more optimistic about the possibilities now than I have been at any time since I entered the Senate 15 years ago. I do feel that we do have an overwhelming consensus in this committee. We will move it forward very rapidly, and there will be no obstructionism in the committee that I know of. The question will be on the floor.

hink there, as we have indicated before, the attitude of the adminion is extremely important. I think whatever the ABA can do ve the same impact on the administration that it has had on this nittee in your appearance here today would be extremely imporI think it would be terribly important for key Senators, and I know whether an ABA position is always embraced by lawyers very State, but there are lawyers certainly in each State that d advance the ABA position. I think to the extent they can they ld get across this point of view. There are so few who even realday that the ABA is for this treaty. I still hear Senators saying, if the ABA is against this, how can I possible be for it? Does automatically mean that they support everything that you sup? No, not necessarily. But it does help. And in this case it will › an immense difference.

e combination of the two, Reagan administration support, if it s, and ABA's active participation and support, will really move forward, and it will not be an exercise in futility then. It can be a le, good debate as this has been today. And we can get right down

closing, let me just read part of what Secretary Abrams said 1 he testified before this committee on November 17:

ave not given the Genocide Treaty the intensive study that I now intend ve it, but it would be my hope that no problem arises in the review of it a would prevent me from reaching the conclusion that ratification is ole.

is personal inclination, he says, is this:

own predilection is to have the United States sign and ratify treaties such e Genocide Treaty not because they are going to have any effect within the ed States, where we are well beyond the minimum standards that these ies would impose, but really because they have a certain standing in the national community and it is an embarrassment to us in some cases if we -t ratify when many other countries do.

r. BITKER. Mr. Chairman, I have one more comment. I think the ic does not believe that this treaty has not been ratified. If you to any citizen that the Genocide Treaty is still pending before J.S. Senate, they just won't believe you.

he CHAIRMAN. I know.

r. BITKER. I think that is one other thing that maybe members of committee as a result of the report that it may issue here may catch eadline or two in some fashion, so that the public will begin to gnize that this thing is still around.

he CHAIRMAN. Let me say that lunch hour has called most of the ia and others who are in the room away. We do not have the wded room that we did at the beginning of the hearing. I am very eful to Senator Dodd for staying right with this issue. Do you have concluding comments or questions?

enator DODD. There is just one question that I want to ask all three mbers. I don't say that you have to have an answer at your fingerbut I would like to have you submit a response to it.

he question that I have, which I raised earlier, though I don't know ther you were in the room or not at the time, is this. Everyone gnizes that genocide is a crime against international law. That is

the substance of this convention. So it is my conclusion based on the Constitution, and I don't know if this has ever been adequately tested, that such a determination is not alien to the Constitution, but in fact is anticipated in article 1 of the Constitution.

The specific provision of article 1, section 8, clause 10, is that "Congress shall have power to define and punish offenses against the law of nations." Now, I am not sure, first of all, of the historical and legislative history of the law of nations as it was perceived by the Framers of the Constitution, but it would seem to me that they had something in mind along the lines of a Genocide Convention, and I am wondering if any analysis has been done of article 1, section 8, clause 10, as to whether or not there are already strong provisions in the Constitution in effect to endorse and support what the Genocide Convention attempts to do.

The CHAIRMAN. Professor Moore, I have to leave. They are holding up the floor for me. Senator Dodd will preside and will adjourn this session. Let me thank you all again for your kindness in being here. Ambassador MOORE. Thank you, Mr. Chairman. Let me take a brief response to that, and then ask my colleagues to add anything they would care to.

I think you are absolutely correct. There is simply no question whatsoever under domestic law in the United States that the Federal Government, the Congress of the United States has the power under article 1 to pass laws making genocide a crime in terms of all of the elements of the crime that we have spelled out in the treaty. Indeed, if you look at the broader objection that some are raising, this question of aren't we somehow unconstitutionally interfering with the role of the States in this case, there are really two answers to that.

The answer that we already have Federal jurisdiction clearly to have precisely that result as something in the Constitution is one of those.

The second is that the Supreme Court has held for very good reasons that indeed treaties or valid executive agreements do take precedence over State law. That was what the Bricker amendment battle was about. Not the question as it has been cited earlier as to whether treaties override the Constitution of the United States.

We rightly decided, as we have again with legislation, that in the international sphere we must have the ability to speak with one voice, so I think for both of those reasons there is simply no question that there is no valid constitutional argument somehow of interference with the power of the States.

Mr. BITKER. I have nothing to add, Senator.

Judge BUERGENTHAL. I just want to agree and say that I have no doubt whatsoever that the Congress could without the Genocide Convention adopt legislation modeled totally on the Genocide Convention. There is no question about that.

Senator DODD [presiding]. We thank you, and we appreciate your testimony this morning. I could not agree more with Mr. Bitker. Let us get about the business of getting the votes and getting this treaty passed. It is a source of some significant embarrassment, I think, in effect. The gentleman from Liberty Lobby, Mr. Bartell, has left, but the fact is, Vietnam and other countries whose policies we find

gnant have ratified this treaty. This should only give us further on to embrace the treaty as quickly as possible. Otherwise, our ling within the international community is hampered somewhat 1 we raise questions about genocide by other nations who are signas to this particular convention.

; a signatory, as a nation who has ratified the Genocide Convenwe are in fact on firmer ground to raise our voice in international ms whenever such genocide does occur. We certainly find ourselves what crimson, I think, when faced by allegations that our Nation s itself out as a bastion of liberty, and then we have not, in fact, ied the very convention which condemns that which we seek to lemn in others, so I could not agree with you more.

gain, I thank the three of you for being here today. Except for responses which you will make to the questions that have been ed here this morning, this hearing will stand adjourned. mbassador MOORE. Thank you very much, Mr. Chairman.

Whereupon, at 1:20 p.m., the committee adjourned, subject to call he Chair.]