Oval of a government of the country in which it occurred. Because of this st inevitable State involvement, the absence of governments from Article ppears to weaken the provision significantly. However, domestic sanctions ist governments would seem to be infeasible, as public officials or rulers d be unlikely to subject themselves to punishment. An obligation would ar to remain, however, for successor governments to bring charges against er public officials for acts covered by the Convention. While the Convendoes not establish international jurisdiction over States committing genoacts, it appears incidentally to recognize State involvement by providing Parties may call upon the United Nations to take appropriate action under United Nations Charter to prevent and suppress genocide as defined by the vention (Art. VIII) and allowing Parties to refer to the International Court ustice disputes concerning the interpretation, application of fulfillment of Convention, including those relating to State responsibility (Art. IX).

ARTICLE V

ticle V.-The Contracting Parties undertake to enact, in accordance with r respective Constitutions, the necessary legislation to give effect to the isions of the present Convention and, in particular, to provide effective lties for persons guilty of genocide or any of the other acts enumerated rticle III.

rticle V clearly indicates that the Genocide Convention is a non-self-executagreement, that is, its provisions have no domestic legal effect without impleting legislation. The provision thus comports with the longstanding dotic precedent that a treaty cannot legislate criminal law within the United es, a consequence of the rule that the Federal courts' criminal jurisdiction t be expressly authorized by Congress. United States v. Hudson & Goodwin, r. (11 U.S.) 32 (1812); United States v. Coolidge, 1 Wheat. (14 U.S.) 415 16). In addition, arguments that the Convention might authorize what the stitution prohibits appear to be dispelled both by the terms of the Convenitself, which explicitly states that the Parties' implemening legislation be cted "in accordance with their respective Constitutions," as well as by the le judicial precedent recognizing the supremacy of the Constitution over reaty. E.g., Reid v. Covert, 354 U.S. 1, 16-18 (1957).

t would appear that Congress has the power to enact the envisioned impleting legislation, both pursuant to the Convention and under its enumerated stitutional powers. The former derives from its power, set forth in Article 8, cl. 18, to "make all laws which shall be necessary and proper for carryinto execution . . . all other powers vested by this Constitution in the govment of the United States." Missouri v. Holland, 252 U.S. 416, 432 (1920). reover, even absent the Convention, Congress would seemingly be able to ct legislation punishing the crime of genocide, as it is empowered both "to ine and punish . . . offenses against the law of nations." U.S. Const. I, § 8, 10.

Under previous Administrations, the Department of State recommended to the esident that the United States instrument of ratification not be deposited unimplementing legislation has been enacted. This was incorporated in the proed resolution of ratification, reading as follows:

That the United States Government declares that it will not deposit its inument of ratification unit after the implementing legislation referred to in ticle V has been enacted."

Senate approval of the Convention would thus be the first in a two-step process ratification. Implementing legislation was originally introduced in the 92d ngress (S. 3182 and H.R. 13185) and reintroduced in the three succeeding ngresses, with S. 2105 and H.R. 7986, 95th Cong.; 1st Sess. (1977), the most ent. These bills would have added a new chapter 50A to Title 18 of the United ates Code, defining the crime of genocide, setting forth criminal penalties, escribing intent as a separate element of the crime charged, and as well as oviding that the remedies set forth in the Act are exclusive but not intended occupy any State or local laws on the same subject matter, or invalidate any ate law unless it is inconsistent with the purposes of the Act or its provisions. addition, the legislation would have expressed the sense of Congress that in e negotiation of extradition treaties the United States shall reserve its right refuse extradition of a United States national to a foreign country for a genole offense, when that offense has been committed outside the United States and

8

here the United States is competent to prosecute and intends to do so or where he person whose surrender is sought has been or is being prosecuted.

ARTICLE VI

Article VI.-Persons charged with genocide or any of the other acts enumerated n Article III shall be tried by a competent tribunal of the State in the territory f which the act was committed, or by such international penal tribunal as may ave jurisdiction with respect to those Contracting Parties which still have ccepted its jurisdiction.

Article VI has engendered debate on the ground that it does not expressly state hat the courts of the country where the accused has citizenship can exercise urisdiction over the crime of genocide. It is well established that a nation has urisdiction to prescribe rules of law regarding conduct within its territory as well as regarding the conduct of one of its nationals wherever the conduct occurs. Restatement (Second) of the Foreign Relations Law of the United States §§ 17, 0 (1965). Thus, there are a number of Federal statutes containing criminal anctions that have extraterritorial application. These cover such matters as raud and misuse of visas, permits, and other entry documents, 18 U.S.C. § 1546, he transportation of stolen goods, securities, moneys, fraudulent state stamps, or articles used in counterfeiting, 18 U.S.C. § 2314, treason committed "within he United States or elsewhere," 18 U.S.C. § 2381, securities offenses, 15 U.S.C. § 776 et seq., antitrust violations, 15 U.S.C. §§ 1-7 et seq., and labeling offenses prescribed by the Federal Trade Commission Act, 15 U.S.C. §§ 686 et seq. Concerns that the United States would be unable to try its own citizens for rimes of genocide under the Convention would appear to be allayed by both he convention's negotiating history and the proposed understanding to be atached to the agreement. While the United Nations Secretariat draft would have allowed Parties to punish genocide "irrespective . . . of the place where the ofense has been committed," Economic and Social Council, Doc. No. E/623, at 6 (Jan. 30, 1948), the 1948 report of the Legal Committee of the United Nations General Assembly indicates that the more limited provision eventually adopted s seemingly not intended to prevent a State from bringing its own nationals to rial for conduct taking place outside its territory:

"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 epresentative of India, according to which nothing in the article should affect he right of any State to bring to trial before its own tribunals any of its naionals 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 n this connexion, the Committee, at its 134th meeting, adopted, by 20 votes to 8, vith 6 abstentions, an explanatory text for insertion in the present report. Report of the Sixth Committee; U.N. Doc. A/760 and Corr. 2 (Dec. 3, 1948)." The explanatory text referred to by the Committee reads as follows: "The first part of Article VI contemplates the obligation of the State in whose erritory 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 outside the State."

To make clear that the obligation of a State to punish genocidal acts com nitted within its territory does not affect the concurrent right of any other State Party to punish its own nationals for conduct wherever committed, the Senate Committee on Foreign Relations has recommended since its consideration of the Convention in 1950 the following understanding:

"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."

Article VI also provides that persons charged with genocide may also be tried y any international penal tribunal that may have jurisdiction "with respect to those Contracting Parties which shall have accepted its jurisdiction." The provision appears to have little practical effect as no international penal tribunal has yet been established and the International Court of Justice has no penal or criminal jurisdiction. In addition, the provision acknowledges only the possible future jurisdiction of an international criminal court, and, some hold, unlike the In

tional Convention on the Suppression and Punishment of the Crime of theid, G.A. Res. 3068. (XXVIII), 30 November 1973, does not appear tly to envision the establishment of such a tribunal. Bassiouni & Derby, Final rt on the Establishment of an International Criminal Court for the Impleation of the Apartheid Convention and Other Relevant International Instrus, 9 Hofstra L. Rev. 523, 571 (1981) [hereinafter cited as Bassiouni & y]. The United Nations Committee on International Criminal Jurisdiction ared a Draft Statute for an International Criminal Court in 1951, U.N. Doc. A/AC.48/4 (Sept. 5, 1951), and issued a revised proposal in 1953, U.N. Doc. 45 (1954). Several other draft statutes have been proposed in recent years, iouni & Derby 576-577, but there have been no active plans for the establishof such a criminal tribunal. However, pursuant to the Apartheid Convenand a subsequent General Assembly Resolution, G.A. Res. 34/24, ann. 1, 20 (Nov. 15, 1979), a Draft Convention on the Establishment of an Internal Penal Tribunal for the Suppression and Punishment of the Crime of 'theid and Other International Crimes has been proposed, providing for Supental Agreements that would permit the tribunal to investigate, prosecute, sticate, and punish additional international offenses. Bassiouni & Derby 571. In any event, it does not seem that ratification of the Genocide Conion obliges the Parties to enter into any further treaties to establish the sioned criminal court. Comment, "Genocide: A Commentary on the Conion," 58 Yale L.J. 1149-50, n. 59, citing 95 Cong. Rec. App. A1270, A1271 9) (remarks of Mr. Lemkin); 1977 Hearings 23 (testimony of Mr. Hansell). e the United States to contemplate such an action, it would appear that precemay be found to support United States' participation in establishing an inational court whose jurisdiction extends over subjects of international negotin. McDougal & Arens, "The Genocide Convention and the Constitution," 3 derbilt L. Rev. 683, 694-705 (1950); see generally, Henkin, Foreign Affairs e Constitution 196-201 (1972).

ARTICLE VII

rticle VII.-Genocide and the other acts enumerated in Article III shall be considered as political crimes for the purpose of extradition.

he Contracting Parties pledge themselves in such cases to grant extradition ccordance with their laws and treaties in force.

Article VII appears to have no immediate effect on United States extradition and practices. The Article contemplates that new or revised extradition aties include genocide as an extraditable offense, but does not appear to uire such inclusion. Where the crime is included, however, the Convention vides that the political crime defense should be made unavailable. There is currently no United States statute or extradition treaty that covers ocide. In accordance with international law, the United States will not radite fugitive criminals apart from a treaty. Factor v. Laubenheimer, 290 5. 276, 287 (1933). In this regard, the Supreme Court has held that "in the ence of a conventional or legislative provision, there is no authority vested any department of the government to seize a fugitive criminal and surrender to a foreign power." Valentine v. United States ex. rel. Neidecker, 299 U.S. → (1936), quoting Moore on Extradition. Where the United States has entered Dan extradition treaty, domestic law authorizes the surrender of persons who e committed crimes in foreign countries, following specified legal proceeds within the United States. 18 U.S.C. §§ 3181 et seq.

While the Convention does not act as an extradition treaty, it does appear to dge the United States not to treat genocide as a political offense when this ion negotiates a new extradition treaty or revises an existing one. Although United States extradition treaties now in force expressly prohibit the extraion of persons charged with offenses of a political nature, the Convention does appear to alter this nation's existing treaty practice. Political crimes genlly consist of two types: (1) offenses such as treason, sedition and espionage, ich are committed exclusively against the State, and (2) offenses against in-iduals, which have a political element. 2 Bassiouni & Nanda, A Treatise on ternational Criminal Law 363 (1973). United States courts have traditionally ated the latter under principles established in the English case, In re Castioni, Q.B. 149 (1890), where such offenses were found not to be extraditable if they re "incidental to and formed part of political disturbances." Id. 166 It is unely that a court would consider genocide, as the planned destruction of a group, fall under either category of political offense, so that United States adherence

to a treaty that does not recognize a political offense exception for genocidal acts appears to be consistent with current United States practice.

There has been some concern that the Convention would require the United States to extradite its citizens to foreign nations for trial on charges of genocide, with the possibility that the accused's constitutional rights would be disregarded in an alien legal system. The Department of State has made clear that United States practice has been not to negotiate extradition treaties with nations that do not permit defendants a fair trial. It has stated that "the possibility of a fair trial, even though the standards cannot be expected to match ours in every detail, is always a factor taken into account in deciding whether to negotiate an extradition treaty." 1977 Hearings 27 (statement of Mr. Hansell). Current extradition treaties generally provide that before the United States will grant extradition, the requesting state must provide evidence sufficient to persuade a United States court and the Executive branch that the accused would also be held for trial in the United States had the alleged crime been committed in this country. They also provide that extradition is not available if the accused has been or is on trial in the United States for the crime at issue. In addition, the negotiating history of Article VII indicates that the Convention is not intended to affect the right of a Party to try one of its own nationals for acts committed outside of its territory. Further expression of the right of the United States to try its own nationals and refuse extradition is found in the proposed implementing legislation :

SEC. 3. It is the sense of the Congress that the Secretary of State in negotiating extradition treaties or conventions shall 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.

ARTICLE VIII

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 States as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.

Article VIII establishes a role for the United Nations in the prevention and suppression of genocidal acts. It would not appear that the Article en'arges the scope of United Nations' business, as genocide, when viewed as broad-scaled mass murder, would arguably either violate the U.N. Charter's human rights provisions or threaten world peace. Article I(1) of the Charter sets forth the maintenance of international peace and security as one of the organization's purposes.

The Article requires that the petitioned actions be taken under the Charter, which expressly provides that the latter neither authorizes the U.N. to intervene in matters that are essentially within the domestic jurisdiction of any State nor requires U.N. Members to submit such matters to settlement under the Charter. Art. 2(7). It would appear that in practice the U.N.'s role in enforcing the Convention would likely be limited to one of exerting moral pressure. Actions in the General Assembly or the Economic and Social Council would of necessity take the form of discussions, studies, and recommendations. U.N. Charter, Arts. 10, 62. While the Security Council would be empowered to authorize military force against a Party if the genocidal acts were found to threaten world peace, U.N. Charter, Chap. VII, Arts. 39, 41, 42, whether the Council would use this power is speculative at best. More probable might be the imposition of diplomatic or economic pressures, such as, the Council's 1966 and 1968 economic sanctions against Zimbabwe-Rhodesia, an example of the Council's use of Chapter VI non-military sanctions on human rights grounds.

ARTICLE IX

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 any of the other acts enumer

n Article III, shall be submitted to the International Court of Justice at quest of any of the parties to the dispute.

cle IX, extending the contentious, or adversary, jurisdiction of the Interal Court of Justice in disputes concerning the interpretation, application, fillment of the Convention, including those relating to State responsibility nocide, exemplifies a "compromissary clause," a type of provision found in multilateral and bilateral agreements to which the United States is a See, e.g., lists in Convention on Offenses Committed on Board Aircraft, c. Rep. No. 3, 91st Cong., 1st Sess. 24-26 (1969) [hereinafter cited as Report jacking Convention]. Use of the compromissary clause procedure would mably invoke the Court's jurisdiction under Article 36(1) of its organizing te, which provides that "[t]he jurisdiction of the Court comprises all cases the parties refer to it and all matters specially provided for in the Charter e United Nations or in treaties and conventions in force." ne have expressed concern that Article IX would invalidate the Connally dment, which provides that United States adherence to the so-called opA clause of the I.C.J. Statute conferring compulsory jurisdiction on the , Art. 36(2), is subject to the condition that the Court's compulsory jurison not extend to "disputes with regard to matters which are essentially n the domestic jurisdiction of the United States of America as determined e United States." 61 Stat. 1218 (1946) (emphasis added). Because the ConAmendment is appended to United States acceptance of compulsory I.C.J. liction under Article 36(2) of the Court's Statute, it is generally held that mendment would not be affected by (nor would it defeat) U.S. agreement e type of dispute settlement procedure articulated in Article XI. E.g., 1977 ings 32-34 (testimony on Mr. Hansell); Goldberg & Gardner, "Time to Act e Genocide Convention," 58 A.B.A.J. 141 (1972).

e relationship of the Connally Amendment to compromissary clauses was dered by the Senate during hearings held in 1960 on several maritime ies. Convention on the Law of the Sea: Hearings on Exec. J-N, 86th Cong., ess., Before the Senate Comm. on Foreign Relations, 86th Cong., 2d Sess. 0) [hereinafter cited as Hearings on Sea Law Conventions]; International ention for the Prevention of Pollution of the Seas by Oil: Hearings on Exec. 6th Cong., 2d Sess., Before the Senate Comm. on Foreign Relations, 86th ., 2d Sess. (1960) [hereinafter cited as Oil Pollution Convention Hearings]. ended to four conventions produced by the first United Nations Conference on Law of the Sea was an Optional Protocol providing for compulsory I.C.J. sdiction in disputes between the parties arising out of the interpretation or ication of any of these conventions-a typical compromissary clause. In rese to questions posed by the Senate Committee on Foreign Relations, Arthur n, Special Consultant to the Department of State and the Department's esman before the Senate, stated that the protocol was theoretically inconent with the Connally Amendment because it would contain no reservation as that contained in the Amendment "unless . . . the Senate chose to put ." Hearings on Sea Law Conventions 76. This inconsistency, however, would e no legal effect. As explained by the State Department: The United States, in accepting the optional protocol concerning the comsory settlement of disputes, would be agreeing vis-a-vis any other state acceptthis protocol to the submission to the International Court of Justice of any outes arising out of the interpretation of operation of any of the four convens for a binding decision by that Court. Such submission would not be subject he Connally Reservation attached to the United States declaration accepting erally the compulsory jurisdiction of the Court. Id. 88-89." 1

The same Connally Amendment question arose again during Senate consideraof the International Convention for the Prevention of Pollution of the Sea Oil, signed May 12, 1954, which also contained a compromissary clause proing for submission of disputes to the I.C.J. In a memorandum for the Foreign ations Committee, the State Department's Legal Adviser discussed, among er things, the source of I.C.J. jurisdiction in cases brought under Article XIII, - clause in question. The Article, he explained, "is a specific provision in a aty permitting the parties to refer certain matters for determination by the ernational Court of Justice. The jurisdiction of the Court in such cases is proled in article 36, paragraph 1, of the statute of that Court. In my opinion, a While the Committee on Foreign Relations favorably reported both the treaties and protocol and the full Senate consented to ratification of all five documents, the tocol was later defeated on reconsideration.