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Fourth, the ratification of this Convention would place the United States in a better position to bring our moral influence to bear in specific cases where genocide is alleged. For example, in the early seventies the State Department wrote to me, indicating that our efforts to halt the genocide of Biafrans during the Nigerian civil war would have been strengthened immeasurably had we been a party to the Convention.
Finally, there is a moral imperative to ratify this treaty. Domestic statutes regarding murder are insufficient for, as Senator Javits has correctly pointed out, "genocide is murder and more.”
The different effect of this type of treaty is impossible to quantify but, as Bruno Bitker noted during your 1970 hearing, “The requirements of morality are more likely to be recognized if they are also the requirement of law."
SUBMISSIONS FOR THE RECORD
Mr. Chairman, I have not attempted in my statement to provide a line by line discussion of the Genocide Convention and the arguments that will be raised by Liberty Lobby later in this hearing. Your next panel will be addressing those questions and I have inerely attempted to set the stage for that discussion.
However, I would like your permission to include as a permanent part of this record, at the conclusion of my statement, material which I believe will be helpful to the committee's review :
“(1) An article by article analysis of the Genocide Convention just produced by the Congressional Research Service at my request. I have also provided additional copies to every Member of the Committee.
“(2) Copies of speeches which I have made responding in detail to the arguments of the new Liberty Lobby White Paper on the Genocide Convention, about which you will be hearing more shortly.
“(3) Letters from each branch of the Armed Services and the General Counsel of the Defense Department during the Carter Administration, outlining their support for the Convention.
“(4) A listing of 52 labor, civic, religious and nationality groups which endorse the Genocide Convention.
“(5) A law review article by Louis Henkin from the April, 1968 issue of the University of Pennsylvania Law Review entitled 'The Constitution, Treaties and International Human Rights', which conclusively proves the constitutionality of treaties such as the Genocide Convention."
Mr. Chairman, the fight for ratification of this Convention has often been frustrating. As Senator Javits noted during the 1977 hearings, “The numbers of rumors, innuendos, misconceptions and scares that have been spread about this treaty are literally endless, and this has been done by people who are very, very competent and able in many other ways, but who somehow have an absolute blind spot on this one."
Mr. Chairman, some opponents of the Genocide Convention want it both ways.
On the one hand, they assert that the Genocide Convention is a strong document, threatening our very civil liberties—a position which is simply not substantiated by this Committee's own hearing record.
On the other hand, they argue that the Treaty is a “paper tiger". Where is the real enforcement authority they ask? Yet this question comes most often from those who would oppose any international enforcement mechanism the most.
Let me get the record straight.
This Senator does not support any Super Government with "enforcement authority" to interfere in our internal affairs.
I do not believe in yielding United States sovereignty in any way.
This is a very limited Treaty. Not a panacea for the world's ills. Not a step toward One World Government.
But it is an important moral statement, a strong diplomatic tool in the hands of the world's most powerful and influential country.
This report will present an article-by-article analysis of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The Convention was transmitted to the Senate for its advice and consent by President Truman in 1949, S. Exec. 0, 81st Cong., 1st Sess., and has been the subject of four sets of Senate hea gs since then. The report will discuss Articles I through IX the Convention's substantive provisions, with attention to any legal developments taking place since the publication of article-by-article analysis, found in S. Exec. Rep. No. 23, 94th Cong., 2d Sess. (1976).
Article 1.—The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
Article I makes genocide a crime under international law, impliedly recognizing both the theory and the practice that individuals, as opposed to nations, have rights and duties under the law of nations. Already punishable under treaties to which the United States is a party are activities such as hijacking, pelagic sealing, destroying submarine cables, sabotage, narcotics abuse, and slave trade and slavery, although these treaties generally commit enforcement exclusively to the domestic jurisdiction of each treaty Party.
It has long been held that treaties must deal with matters of "international concern,” a principle engendering debate over whether human rights treaties, and the Genocide in particular, can be so characterized. While the language of the United States Constitution does not expressly restrict the treaty power in this way, the limitation has been suggested in Thomas Jefferson's Manual of Parliamentary Practice, various Supreme Court decisions, and the unofficial remarks of Justice Charles Evans Hughes, and has been incorporated in the Restatement of Foreign Relations Law.
In his Manual of Parliamentary Practice, Jefferson notes several constitutional limitations on the treaty power, including the requirement that the treaty "concern the foreign nation, party to the contract" and that the object be one that is “usually regulated by treaty, and cannot be otherwise regulated.” These contentions have had considerable support in court decisions and legal scholarship. For example, in Geofroy v. Rigg8, 133 C.S. 258 (1890), the Supreme Court stated that the treaty power "extends to all proper subjects of negotiation between our government and the governments of other nations,” Id. 267. The Court later observed, in dicta, that treaties may deal with "all subjects that properly pertain to our foreign relations.” Santovincenzo v. Egan, 284 U.S. 30, 40 (1931.). While the Supreme Court has yet to strike down a treaty on the grounds that it does not deal with a matter of international concern, a Federal appeals court used this justification to invalidate a Senate reservation to a United States-Canada treaty on Niagara River water allocation. Power Authority of New York v. Federal Power Commission, 247 F.2d 538 (D.C. Cir.), vacated as moot, 355 U.S. 64 (1957). In addressing the American Society of International Law, Justice Charles Evans Hughes noted that although there is no explicit constitutional restraint on the treaty power. the nature of this power might impliedly limit its use to matters “relating to foreign affairs,” and prohibit its exercise "to make laws for the people of the United States in their internal concerns.” 23 Proc. Am. Soc'y Int'l L. 196 (1929). The same notions have been embodied in the Restatement (Second) of Foreign Relations Law of the United States $ 117(i) (a) (1965), which states that the United States has the power to enter into an international agreement if, inter alia, the subject matter of the agreement is of international concern. However, a comment to the provision notes that such matters “are not confined to matters exclusively concerned with foreign relations. Usually, matters of international concern have both inter
*Jeanne Jagelski, Legislative Attorney, American Law Division, Congressional Research Service, The Library of Congress.
national and domestic effects, and the existence of the latter does not remove a matter from international concern." Id. $ 117, Comment b.
The notion that international concerns have both international and domestic effects is reflected more strongly in the revised Rcstatement of Forcign Relations Law of the United States: Tentatire Draft No. 1, submitted to the American Law Institute in June 1980. The revised draft deemphasizes the question of treaty subject matter, simply stating that the United States has constitutional power to make international agreements and that no agreement or any of its provisions may contravene any constitutional provision applicable to any exercise of authority by the Federal government. Id. 8 304. A comment adds that the Constitution does not expressly define treaty purpose or subject matter, observing that the Constitution incorporates the international law principles, which similarly recognize no limitations, except that the agreement not conflict with a peremptory norm of international law. The United States may conclude an agreement of “any subject suggested by its national interest in its relations with other nations” so long as the agreement is a “bona fide international act with one or more other nations, not a unilateral act dressed up to look like an agreement.” Id. $ 304, Comment c. A subsequent Reporters' Note carries the discussion further : "There is no principle either in international law or in American Constitutional Law that some subjects are intrinsically 'domestic and not permissible subjects for an international agreement.” Id. 8304, Reporters' Note 2. The note adds that the International ('ourt of Justice has stated that even a subject of expressly domestic concern “ 'ceases to be only within the domestic jurisdiction of the State, [and] enters the domain governed by international law, if states conclude an agreement about it.” Ibid., citing Nationality Decrces in Tunis and Morocco, Great Britain v. France, P.C.I.J., Ser. B, No. 4, at 26 (1923).
The Draft Restatement view appears to incorporate the views of legal commentators who have held, intcr alia, that statements such as those of Justice Hughes are not meant to imply that treaties dealing with external matters may not simultaneously have an internal aspect. This reading of Hughes remarks has been borne out in practice, as the United States has ratified a number of treaties on matters of foreign relations that simultaneously affect domestic concerns. These include, for example, the 1926 Slavery Convention, the 1912 Convention Relating to the Suppression of the Abuse of Opium and Other Drugs, and the 1949 Road Traffic Convention. Professor Henkin refers to these agreements, in which the United States pledges to treat its inhabitants in a certain way, as "parallel” agreements, an approach that he feels does not defeat the “international concern” requirement. Henkin, “The Constitution, Treaties, and Human Rights," 116 U. Pa. L. Rev. 1012, 1026–27 (1968).
Opponents of the use of the treaty power to conclude human rights conventions generally hold that the State's regulations of relations between it and its citizens, as occurs, for example, when it defines a crime and its punishment, is a matter at the core of domestic jurisdiction. Proponents, who appear to represent the prevailing view, generally argue that international stability and peace, conditions essential to a secure future for the United States, can be achieved only by international protection of human rights. A convention such as the Genocide Convention is an effective means to that end, and it is essential that the United States assume its obligations under it. International minimum standards for human rights have long been a matter of international concern, they maintain. Even though various aspects of the Genocide Convention may deal with domestic matters, the fact that a significant number of nations havo ratified the Convention reflects a consensus that these “domestic” matters have become subjects of international concern. Moreover, they argue, because providing sanctions for genocide has an obvious impact on war and peace among nations, it is a matter suitably related to foreign policy to be the subject of a treaty.
Article II.-In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such :
(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; (e) Forcibly transferring children of the group to another group.
Article II sets forth the particular acts which constitute genocide for purposes of the Convention, as well as the state of mind required before an act will fall within the scope of the treaty. Debate surrounding Article II has generally criticized the vagueness of several phrases, in particular, "intent to destroy, in whole or in part, a group as such," and “mental harm.” In response to these concerns, the Senate Foreign Relations Committee in past considerations of the Convention has recommended the following understandings to the Senate:
(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) to mean permanent impairment
of mental facilities. These understandings would not act to modify the treaty provisions so as to affect the United States' underlying international obligation, but would seek to clarify or interpret the meaning of that obligation. 14 M. Whiteman, Digest of Int'l L. 137–38 (1970). Thus, the first understanding attempts to explain the meaning of "intent” and emphasize that genocide may not occur without the particular intent described. The element of intent set forth in the treaty provision would presumably prevent dubious charges of genocide, based on, for example, racial and religious discrimination or wartime combat, and distinguish the crime from homocide. Proof of genocide would require a showing of intent to destroy an entire group for the very fact that it is a particular national, ethnical, racial or religious group, and a criminal act "undertaken in a way that would be intended to affect a substantial part of the group.” Genocide Convention : Hearings on Exec. 0, 81st Cong., 1st Sess., Before the Senate Comm. on Foreign Relations, 95th Cong., 1st Sess. 23 (1977) (testimony of Herbert J. Hansell, Legal Adviser, Department of State) (hereinafter cited as 1977 Hearings). The Convention's definition of intent has generally been held to make proof of this element difficult. Id. 31. The understanding reflects a construction proposed by the Department of State during hearings held in 1950 : Mr. Rusk. * * *
Genocide, as defined in article II of the convention, consists of the commission of certain specified acts, such as killing or causing serious bodily harm to individuals who are members of a national, ethnical, racial, or religious group. with the intent to destroy that group. The legislative history of article II shows that the United Nations negotiators felt that it should not be necessary that an entire human group be destroyed to constitute the crime of genocide, but rather that genocide meant the partial destruction of such a group with the intent to destroy the entire group concerned.
Senator MCMAHON. That is important. They must have the intent to destroy the entire group.
Mr. RUSK. That is correct.
Senator MCMAHON. In other words, an action level against one or two of a race or religion would not be, as I understand it, the crime of genocide. They must have the intent to go through and kill them all.
Mr. Rusk. That is correct. This convention does not aim at the violent expression of prejudice which is directed against individual members of groups.
Senator LODGE. Is that the difference between genocide and homicide?
[The Genocide Convention : Hearings Before a Subcommittee of the Senate Comm. on Foreign Relations on Exec. 0, 81st Cong., 2d Sess. 12 (1950) (testimony of Deputy Under Secretary of State Dean Rusk.)]
The second understanding, discussed with approval by the Department of State witness, Herbert Hansell during the 1977 hearings, describes the degree of mental harm necessary for an act to fall within the scope of the convention. Violent expressions of prejudice against individual group members would be excluded and spurious claims of mental harm discouraged. 1977 Hearings 52 (statement of Bruno V. Bitker, Chairman, Committee on International Human Rights, American Bar Association). Further, the imposition of mental harm must be accompanied by the intent to destroy an entire national, ethnical, racial, or religious group. 1977 Hearings 31 (testimony of Mr. Hansell).
Article III.-The following acts shall be punishable:
(e) Complicity in genocide. Article III defines the acts that are punishable as genocide. While these acts have appeared to be generally non-controversial, questions have been raised that the punishment of “direct and public incitement to commit genocide” may encroach on the First Amendment right to freedom of speech. The right to free speech, however, has been held to be subject to some restrictions, namely those "required to protect the State from destruction or from serious injury, political, economic, or moral,” Whitney v. California, 274 U.S. 357, 375–376 (1927) (Brandeis, J. concurring). Thus, like obscenity, libel or slander, and words inciting riots, the direct and public incitement of crime remains unprotected by the constitutional guarantee. Cf. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Schenck v. United States; 249 U.S. 47 (1919) (denying constitutional protection to words constituting a “clear and present danger").
This principle has been reasserted by the Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), where the Court reversed a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terroristic means to achieve political change. The Court reaffirmed that “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.” Id. 447.
It is important to note that the original Secretariat draft of the Genocide Convention included as punishable acts “[a]ll forms of public propaganda tending by their systematic and hateful character to provoke genocide, or ... make it appear as a necessary, legitimate or excusable act ...." Economic and Social Council, Doc. No. E/623, at 14 (Jan. 30, 1948). The drafters eventually removed this provision after the United States made clear that the American legal system prohibits interference with speech unless it creates a “clear and present danger.” Ibid. Moreover, under Article V of the convention. Parties agree to enact implementing legislation, but only “in accordance with their respective Constitutions.” At least one commentator has noted that “[a]s the Convention is now construed no person in the United States could be apprehended for incitement to genocide unless arresting officials met American constitutional free speech tests." Comment, “Genocide: A Commentary on the Convention,” 58 Yale L. J. 1143, 1146 (1949). This assessment was reaffirmed in 1970 testimony by then Assistant Attorney General William Rehnquist, who, after an approving reference to Brandenberg v. Ohio, stated that constitutional free speech protections "would not” and “could not” be affected in any way by the Convention's terms. Genocide Convention : Hearings on Exec. O, 81st Cong., 1st Sess., Before a Subcomm. of the Senate Comm. on Foreign Relations, 91st Cong., 2d Sess. 148 (1970). See also 1977 Hearings 22 (testimony of Mr. Hansell).
Article IV.-Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
This provision makes clear each Contracting Party's obligation to punish persons guilty of committing genocide, whether they be constitutionally responsible rulers, public officers, or private individuals. There appears to be no legal impediment to punishing an individual for acts of genocide. Indeed, long established precedent holds that individuals are capable of committing crimes against international law, whether they are punished in domestic or international courts. See United States v. Smith, 5 Wheat (18 U.S.) 153 (1820).
Questions regarding Article IV have generally focused on its exclusion of governments from those parties that might be held responsible for genocide, an exclusion apparently based on practical, rather than legal considerations. It has often been noted that genocide, as the organized destruction of a group, would likely be an unsuccessful undertaking without the announced or tacit