10 jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. This article provoked considerable discussion, not because of its nguage but because of the means suggested for its implementation. xecutive branch and other testimony brought out that the negotiatg history of the convention makes it clear that the courts of the untry in which the accused has citizenship can likewise have jurisetion over the crime. This theory of concurrent jurisdiction-jurisetion based on the site of the alleged offense and jurisdiction based the nationality of the offender-was thoroughly explored during e hearings. It was pointed out that a number of nations particularly lonial powers, have consistently asserted the right to try their own tionals for crimes committed outside their territory. Even the nited States in certain limited areas-counterfeiting, theft of Govnment property, treason, antitrust violations-has exercised jurisction over its citizens for acts committed abroad. This concept of ncurrent jurisdiction no doubt will be closely examined during conderation of the implementing legislation. However, the U.S. Governent should make it clear to the other contracting parties that it innds to construe article VI so as to permit it to try its own nationals or punishable genocidal acts whether committed at home or abroad. or this reason, the committee recommends to the Senate the followg understanding: (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. The pertinent excerpt from the report referred to in the understandng follows: REPORT OF THE SIXTH COMMITTEE―U.N. DOCUMENT A/760 AND 24. At its 131st meeting, the Committee had agreed to insert in its report to the General Assembly the substance of an amendment to article VI submitted by the representative of India, according to which nothing in the article should affect the right of any State to bring to trial before its own tribunals any of its nationals for acts committed outside the State. Following this, the representative of Sweden had requested that the report should also indicate that article VI did not deprive a State of jurisdiction in the case of crimes committed against its nationals outside national territory. After some discussion of the questions raised in this connexion, the Committee, at its 134th meeting, adopted, by 20 votes to 8, with 6 abstentions, an explanatory text for insertion in the present report. [Emphasis supplied.] 1 The text reads as follows: "The first part of article VI contemplates the obligation of the State in whose territory acts of genocide have been committed. Thus, in particular, it does not affect the right of any State to bring to trial before its own tribunals any of its nationals for acts committed out side the State." [Emphasis supplied.] It should go without saying that the United States cannot exercise jurisdiction unless the accused is in U.S. territory. Only brief reference needs to be made to the clause in article VI which provides that persons charged with genocide shall be tried "by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction." No such international penal tribunal has been established and the International Court of Justice has no penal or criminal jurisdiction. That part of article VI is therefore a dead letter at this time. If a penal tribunal should be established-and there are no present plans to do so-separate action either through ratification of a treaty or enactment of a law would be required for the United States to accept its jurisdiction. EXTRADITION ARTICLE VII Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purposes of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force. Article VII has no immediate effect. It does not constitute an extradition treaty in itself. It obligates the contracting parties to grant extradition in accordance with their laws and treaties in force and neither U.S. law, nor any extradition treaty to which the United States is a party, covers genocide at this time. The question of extradition has been carefully examined by the committee in the light of concerns that American citizens might be extradited for trial in foreign courts without the protection of U.S. constitutional guarantees. Ratification of the Genocide Convention, however, does not affect any problem which may exist in this respect. It merely opens the way for adding one more crime-genocide-to the list of crimes for which Americans may be extradited under ratified extradition treaties. Extradition treaties are carefully worded to be as explicit as possible about the definition of the crimes covered and the procedure under which a citizen will be surrendered to another nation for trial. No general sweeping accusation would suffice. During the extensive committee discussion of the extradition article in 1971, Senator Cooper offered the following reservation: That a U.S. Citizen in the United States charged with having committed an act outside the United States in violation of the treaty provisions shall not be subject to extradition unless the Secretary of State determines such person is guaranteed all the constitutional rights of an accused under our Federal laws. The committee voted 7 to 6 to table this reservation, not so much because members were opposed to its thrust as because such policy would be more properly expressed in the implementing legislation. In this connection, the committee calls particular attention to Sec. 3 of the implementing legislation which reads: SEC. 3. It is the sense of the Congress that the Secretary of 12 reserve for the United States the right to refuse extradition of a United States national to a foreign country for an offense defined in chapter 50A of title 18, United States Code, when the offense has been committed outside the United States, and (a) where the United States is competent to prosecute the person whose surrender is sought, and intends to exercise its jurisdiction, or (b) where the person whose surrender is sought has already been or is at the time of the request being prosecuted for such offense. ROLE OF THE UNITED NATIONS ARTICLE VIII Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III. In the discussion of this article, the question was raised whether it ould broaden or enlarge the powers of the United Nations. Genocide, the term is accepted by the committee, namely, mass murder on a oad scale, would either jeopardize human rights provisions of the arter or pose a threat to world peace and therefore it would clearly within the powers of the United Nations to discuss it. The article elf moreover refers to "action under the Charter of the United ations" which limits its scope to that document, including the ticle 2(7) proscription against intervention "in matters which are sentially within the domestic jurisdiction of any state * * *" As a practical matter, whether we are a party to the Genocide onvention or not, the United Nations can discuss alleged genocide the United States or anywhere else any time it so chooses. The mmittee moreover is quite certain that for propaganda and other urposes spurious charges of this nature will continue to be made in e United Nations, whether we do or do not ratify the Genocide onvention, if only because our position in the world makes us a sible target of discontent. Indeed, we lend more color to such arges by not being a party to the Genocide Convention. This being e case, the question whether article VIII gives the United Nations -eater scope to discuss genocide seems relatively immaterial. It is mportant, moreover, in this connection to bear in mind that such forcement powers as the United Nations has are lodged in the ecurity Council, subject to the veto power, which the United States ow has demonstrated it is prepared to exercise. SETTLEMENT OF DISPUTES ARTICLE IX Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of The jurisdiction of the Court will extend to disputes relating to the interpretation, application, or fulfillment of the convention, including those relating to the responsibility of a state for genocide. It must be noted that such cases will fall under article 36(1) of the Court's statute which provides: 1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. (Emphasis added.) Cases arising under the Genocide Convention will not be covered by the Connally amendment under which the United States reserves to itself the right to determine which cases is considers to be within its domestic jurisdiction and therefore outside the jurisdiction of the Court. The Connally amendment applies only to article 36(2)—the so-called compulsory jurisdiction clause. Provisions similar to Article IX are included in many multilateral and bilateral conventions to which the United States is a party. A list of these appears on page 215 of the 1970 hearings. Prominent examples include the Japanese Peace Treaty, the Antartic Treaty, and the Statute of the International Atomic Energy Agency. It must also be noted that a number of countries, notably Communist countries, have ratified the treaty subject to the reservation that they do not consider themselves bound by article IX. Other countries have taken exception to this action. The United States is expected to do likewise. As a consequence, the United States could invoke the reservation in its own behalf in cases brought by countries making such a reservation. The committee does not envisage any real difficulties resulting from article IX. No disputes arising from alleged violations of the Genocide Convention have been decided by the Court to date. This is not to say, of course, that the United States might not be someday charged with nonfulfillment of the treaty by another signatory and might even be found in default of its treaty obligation-though this is hard to conceive bust as a practical matter that is where it would end. The Court has no enforcement powers. It is also well to recall that only states party to the Statute can bring cases before the World Courtnot individuals or groups. In the committee's view, the fears expressed about the role of a moribund court in genocide matters appear very far fetched. 5. THE CONVENTION AND THE CONSTITUTION Discussion of the Genocide Convention during the hearings renewed the debate over whether a treaty can authorize what the Constitution prohibits. The Supreme Court, in its own words, "has regularly and uniformly recognized the supremacy of the Constitution over a treaty" (Reid v. Covert, 354 U.S. 1, 16-18). It is therefore fallacious to claim that the Genocide Convention will supersede or set aside the Constitution of the United States. It will not and cannot do so. A related argument was raised by some witnesses to the effect that the Congress would have no power to enact legislation making geno 14 * de a crime if the convention were not approved. The power of Conress to do so rests on article I, section 8, clause 10, of the Constitution: The Congress shall have the Power * * To Define and Punish iracies and Felonies committed on the high Seas, and Offenses gainst the Law of Nations *** as well as on the necessary and roper clause. The fact that the Congress enacts a statute pursuant › a treaty, as would be the case in the Genocide Convention, does not ter its competence to enact such legislation in any event. وو As regards the respective jurisdiction of Federal and State governents over the crime of genocide, if the treaty is approved, the comittee calls attention to Sec. 2 of the proposed implementing legislaon, which provides: SEC. 2. The remedies provided in this Act shall be the exclusive means of enforcing the rights based on it, but nothing in the Act shall be construed as indicating an intent on the part of the Congress to occupy, to the exclusion of State or local laws on the same subject matter, the field in which the provisions of the Act operate nor shall those provisions be construed to invalidate a provision of State law unless it is inconsistent with the purposes of the Act or the provisions of it. 6. UNDERSTANDINGS AND RESERVATIONS The understandings and declaration which the committee agreed o recommend to the Senate have been discussed in the text of the eport as well as reproduced at the beginning and in the resolution of atification which is included in this report. There was considerable discussion as to the nature and effect of hese understandings. For this reason, there follows a memorandum on this question, prepared at the committee's request by the Departnent of State. Hon. J. W. FULBRIGHT, DEPARTMENT OF STATE. Washington, D.C., March 26, 1971. Chairman, Committee on Foreign Relations, DEAR MR. CHAIRMAN: In the hearings on March 10, 1971, on the Genocide Convention before a subcommittee of the Senate Foreign Relations Committee, questions were raised concerning the difference between a "reservation" and an "understanding" and as to the legal effect of the latter. In response to Senator Javits' request, I enclose a memorandum on the subject, prepared in the Office of the Legal Advisor. There was also some discussion in the hearings as to whether the understandings to the Genocide Convention recommended by the Foreign Relations Committee in Executive Report No. 91-25 were properly designated as such or whether they should more appropriately be termed reservations. I would like to take this occasion to express the view of the Department of State that the proposed understandings and declarations set forth in the report are properly designated. We feel that it is neither necessary nor desirable to redesignate any of them as reservations, |