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TEXT OF RESOLUTION OF RATIFICATION
Resolved, (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of the International Convention on the Prevention and Punishment of the Crime of Genocide, adopted unanimously by the General Assembly of the United Nations in Paris on December 9, 1948, and signed on behalf of the United States on December 11, 1948 (Executive O, Eighty-first Congress, first session) subject to the following understandings and declaration:
1. That the United States 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 affect a substantial part of the group concerned.
2. That the United States 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 United States 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 United States.
4. That the United States Government declares that it will not deposit its instrument of ratification until after the implementing legislation referred to in article V has been enacted.
AMERICAN CIVIL LIBERTIES UNION,
Washington Office, December 21, 1981. Hon. CHARLES PERCY, Chairman, Committee on Foreign Relations, U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN: I am writing on behalf of the American Civil Liberties Union in support of ratification of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.
As we did in testimony before the Committee on Foreign Relations in 1970, the American Civil Liberties Union strongly endorses the ratification of this U.N. Convention on Genocide. This Convention, adopted by the United Nations in 1948, has been ratified or acceded to by 89 countries. The provisions of the Convention are fully in accordance with the Constitution, laws and ideals of the United States. Ratification of the Genocide Convention is, therefore, a proper exercise of the treaty-making power of the Constitution.
I do not think it is necessary to repeat the constitutional and legal arguments so thoroughly covered by the hearings and reports on the Convention, but I would like to comment briefly on one point in which the ACLU has a particular interest and, we think, some special competence. Some critics of this Convention have argued that ratification would conflict with the First Amendment. The ACLU is well known for its vigorous efforts to protect First Amendment rights and we would not hesitate to criticize this Convention if it violated the First Amendment. But it clearly does not. Ratification is in fact consistent with the decisions of the Supreme Court which over the years have amplified the scope of the constitutional guarantees of speech and press.
Critics point to Article III of the Convention, which makes it a crime to engage in “direct and public incitement to commit genocide,” as evidence for their assertion that the Convention infringes the First Amendment guarantees of freedom of speech and press. This assertion is erroneous. The First Amendment does not protect conduct which involves efforts to incite to immediate unlawful action. This standard is fully consistent with Supreme Court decisions drawing the line between protected speech and prohibited direct and immediate incitement to criminal conduct. This standard has been enunciated by the Court in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), where the Court said:
the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Emphasis added.)
Although the Convention's standard meets the Brandenburg standard, one further point should be mentioned to negate any fear of conflict with the First Amendment. Should a particular indictment produce a conflict between the Convention and the First Amendment, the First Amendment would prevail. Article V of the Convention obligates the contracting parties to enact, “in accordance with their respective Consti 5," implementing legislation necessary to make these offenses punishable in their countries. Moreover, it is axiomatic that, as a matter of constitutional law, a treaty could not validly obligate the United States to do anything the Constitution prohibits. If a case arose under implementing legislation enacted by the Congress to make “direct and public incitement to commit genocide” a criminal offense in the United States, the accused person would still have to be prosecuted and convicted under those criminal procedures which protect all persons accused of committing a crime in this country. The Supreme Court could invalidate a conviction if it found that the acts with which the defendant was charged were protected by the First Amendment and did not constitute the kind of incitement which falls outside the protection of the First Amendment. In short, ratification of the Convention would in no way diminish the Court's power to apply the First Amendment.
As the constitutional objections to the Convention have been shown by many to be without substance, there is no legal obstacle to U.S. ratification of this Convention. The United States should move promptly toward ratification. This country played a leading role in the adoption of the Genocide Convention by unanimous vote of the members of the United Nations General Assembly in 1948. Since then the United States has continued to work for the promotion of human rights through the United Nations. However, the United States' failure to ratify this Convention in the thirty-three years since its adoption, when coupled with a similar lack of movement ou some of the other human rights conventions, casts serious doubt on the sincerity of our efforts and of our stated commitment to human rights. Our concern about human rights in the international community must be accompanied by a willingness to obligate ourselves to act in accordance with these same international standards. Ratification of the Genocide Convention would be a long overdue step in the pursuit of truly effective international human rights throughout the world. Thank you for this opportunity to express our views. Yours sincerely,
PREPARED STATEMENT OF WALTER HOFFMANN, CAMPAIGN FOR U.N. REFORM,
WAYNE, N.J. It is amazing that over 30 years have passed since the United States played a major role in helping to draft an International Convention on the Prevention and Punishment of the Crime of Genocide, and still the U.S. Senate has not ratified that convention, although the United States was one of the first nations to sign it. Almost every other prominent member of the United Nations has now ratified the Convention, including the U.S.S.R., the United Kingdom, Canada, France, Mexico and the Scandinavian countries. How can we hold our heads high among the nations when our country, which has always been a haven for the persecuted, which prides itself on granting its citizens more freedom and protection in the area of individual liberty and thought than any country in the history of the world, refuses to ratify a convention that simply makes genocide a crime under international law, which we agree to prevent and punish?
Administration after administration, from Truman to Kennedy to Nixon, called upon the Senate to give their consent. Your records are replete with State department reports and testimony of scholars that make it clear the treaty would not and cannot supercede the U.S. Constitution; that the treaty would not diminish the right of free speech; that the treaty does not increase existing Federal powers vis-a-vis the States; and that the treaty does not make our citizens subject to prosecution abroad unless we specifically provide for such an eventuality, in which case we can also provide for adequate due process procedures to be used.
It may be worth remembering that the earliest opposition to the Genocide Convention seems to have stemmed primarily from a fear of the expanded use of treaties in general, which is no longer even a relevant consideration in view of the thousands of multinational treaties we have entered into since 1949. In its 1969 report recommending that the United States ratify the Convention on the Prevention and Punishment of the Crime of Genocide, the Section of Individual Rights and Responsibilities of the American Bar Association tackles this and every other objection originally made to ratification and factually documents why these do not hold up and should not deter the Senate from ratifying the Convention. The Senate Foreign Relations Committee Report printed in March 1973, following hearings held in 1970 and 1971, also reviews point by point the questions raised and concludes on Page 18, “We find no substantial merit in the arguments against the convention."
Because we know that you have reviewed the same records that we have, which explore in point by point detail the consequences of entering into this treaty, and because you have also heard testimony on these points by exports, we will only expound in detail on two salient points, that we think are of special concern, and which may not have been sufficiently emphasized by others.
1. In regard to ratification impinging on the exercise of free speech, as has been contended by some : Assistant Attorner General William H. Rehnquist testified in 1970 that such constitutional protection as presently exists in the field of free speech would not and could not be adversely affected by the Convention. The American Civil Liberties Union, which has suffered much adverse publicity because of the lengths to which it has gone to defend free speech, concurred in this view. Moreover, the treaty is clearly consistent with the Supreme Court decision in Brandenburg v. Ohio, in which the Court drew this line, “the constitutional guarantee of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (395 U.S. 444.) The language of the Genocide Convention is consistent with the Court's finding in this case.
2. Who will try those accused of genocide and under what protection ? Perhaps the greatest fear in regard to ratification of the Genocide Treaty has been the oft repeated contention that ratification would subject American citizens to trial in foreign countries like North Vietnam on false charges of genocide. First, although specific acts of genocide may be against part of a group, the intent to commit genocide against the group as a whole must be shown to be covered under the Convention. Second, ratification of the Convention in and of itself will not allow any American citizen to be extradited on a charge of genocide unless we have negotiated an extradition treaty to include genocide with the country in question. In the case of North Vietnam we do not have an extradition treaty. Third, the treaty itself provides that “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in Article III.” Further, Article VI of the convention states “Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to these Contracting Parties which shall have accepted its jurisdiction."
In regard to the above, several things must be noted. No international tribunal has been established to date. Therefore accepting the jurisdiction of such a tribunal if it is established would be a separate act. Moreover, during the testimony to the Senate in its hearings during 1970 and 1971 it was made clear based on the negotiating history of the Convention that the courts in the country in which the accused has citizenship can likewise have jurisdiction over the crime. In its recommendation in 1971, the Senate Foreign Relations Committee called on the U.S. Government to make clear that it intends to construe Article VI so as to permit it to try its own nationals for punishable genocidal acts.
In this regard, and because the convention is not self-executing as indicated in Article III, implementing legislation must be adopted to give effect to the Convention's provision if the Senate agrees to ratify it. For this purpose, draft legislation to add a Chapter 50A-Genocide to Title 18, U.S. Code, was introduced by Senators Scott and Javits in February 1972, which would have reserved for the United States “the right to refuse extradition of a U.S. national to a foreign country for an offense defined in chapter 50A of title 18, U.S. 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."
Although this draft legislation was never adopted, a similar bill would have to be acted on as a second step after ratification of the Genocide Convention, in order to provide means of effectuating the treaty, as provided for in the Convention. Until this is done, the would be no means to legally effectuate the treaty in regard to U.S. citizens.
Beyond this however, we should be looking ahead, and championing the rule of law in international affairs as the only alternative to continued war, violations of individual human rights, and illegal acts of terrorism. There is no reason why an International Criminal Court should not eventually be established and given jurisdiction over some genocide cases, under, of course, strict rules of due process.
In this regard, several proposals have already been made for the establishment of an International Criminal Court to try terrorists who are accused of violating existing international conventions against terrorism. As far back as 1920, Elihu Root, former U.S. Secretary of State and Nobel Prize winner, proposed the creation of such a court. He received the support of the League of Nation's Advisory Committee of Jurists, and the idea was endorsed by the Inter-Parliamentary Union in 1925, the International Law Association in 1926 and by experts who drafted a Convention to Repress Terrorismn in 1935. In 1945, the United States took the lead in creating an international criminal court when Supreme Court Justice Jackson, on instructions from the President, convinced our allies to establish the International Military Tribunal at Nuremberg. Currently, the ABA is on record as favoring the creation of an International Criminal Court with jurisdiction to try those violating specific international conventions on terrorism. All such proposals have included provisions for strict due process procedures, and there has been some support in Congress for the establishment of such a court. (See H.C. Res. 328, 96th Congress 2nd)
We should also note here that recent administrations have recognized the need to establish better procedures and more continuity at the United Nations for the protection of human rights, and in this regard called for the creation of a U.N. High Commissioner for Human Rights. To our best knowledge, the United States has not changed its position on this matter. The eventual evolution of an International Tribunal to prosecute international human rights violations would be in line with the U.S. concern for the protection of individual human rights and its rationale in wanting the ability of the U.N. to act in human rights cases strengthened. As in the case of International Court of Justice, the enforcement powers of such a court would be subject to the Security Council where the United States has the veto power. In any event, such concerns are for future consideration. Ratification of the Genocide Convention in no way commits the United States to supporting the creation of or subscribing to the jurisdiction of an international tribunal, since under the concurrent jurisdiction doctrine, the United States itself could retain the option of hearing charges against its citizens itself.
What is of overriding concern now, is that the voice of our country as an advocate of the protection of individual human rights at international convocations is being dimmed by our failure to ratify the Genocide Convention. Time and again we are subject to being called hypocrites when we attempt to speak out for the sanctity of human life. Friend and foe alike cannot understand our failure to act. As stated in the 1973 written report of the Senate Foreign Relations Committee it is:
“As if genocide were rampant in the United States and this nation could not afford to have its actions examined by international organs-as if your Supreme Court would lose its collective mind and make of the treaty something it is notas if we as a people don't trust ourselves and our society. The rhetoric of the opponents, and to a degree the proponents, has obscured what a modest step the convention represents.
“Philosophical, moral, and constitutional questions have been raised which go far beyond this modest step and probe man's relationship to his fellow man and the responsibilities of governments to protect the rights of their citizens. As our planet becomes more crowded, man's behavior toward his fellows must be governed by standards ever higher and more humane. This treaty seeks to set a higher standard, of international morality, and should be judged on that basis.”
As Chief Justice Earl Warren told an American audience in 1968, far from being among the last to ratify "we as a nation should have been the first to ratify the genocide convention.” Now more than another dozen years have passed and still the U.S. Senate has not acted. We urge you to help rectify this blot on our good name by once again strongly recommending the ratification of the Genocide Convention, and exerting every effort to get this modest, but worthwhile treaty ratified by the Senate as a whole.
Under the auspices of the United States Holocaust Memorial Council, a gathering was convened at the Department of State from October 26–28, 1981. This unique “International Liberators Conference" brought together delegations from each of the fourteen countries which took part in the liberation of the Nazi concentration camps at the close of World War II. The following petition was signed by fifty of the fifty-nine American Representative Liberators present at the conference and addressed to the United States Senate.
INTERNATIONAL LIBERATORS CONFERENCE
Runyon C. Peterson, 3249-16 Ave. South, Fargo, N.D. 58103.
We, the undersigned, participated in the liberation of the Nazi concentration camps at the close of World War II. We saw with horror and revulsion the machinery of persecution and mass extermination, and as American military personnel, were able to play a unique role in halting the wheels of Nazi genocide.
The United States, which has long been a beacon of hope to the persecuted, should now make a clear statement to the world that it is forever opposed to the heinous act of genocide, and will seek to prevent its recurrence. We therefore call upon the United States Senate to grant its long overdue advice and consent to ratification of the Convention on the Prevention and Punishment of the Crime of Genocide.