Obrázky stránek

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


Article V.-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 any of the other acts enumerated in Article III.

Article V clearly indicates that the Genocide Convention is a non-self-executing agreement, that is, its provisions have no domestic legal effect without implementing legislation. The provision thus comports with the longstanding do mestic precedent that a treaty cannot legislate criminal law within the United States, a consequence of the rule that the Federal courts' criminal jurisdiction must be expressly authorized by Congress. United States v. Hudson & Goodwin, 7 Cr. (11 U.S.) 32 (1812); United States v. Coolidge, 1 Wheat. (14 U.S.) 415 (1816). In addition, arguments that the Convention might authorize what the Constitution prohibits appear to be dispelled both by the terms of the Convention itself, which explicitly states that the Parties' implemening legislation be enacted “in accordance with their respective Constitutions," as well as by the ample judicial precedent recognizing the supremacy of the Constitution over a treaty. E.g., Reid v. Covert, 354 U.S. 1, 16–18 (1957).

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

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

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

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


[ocr errors]

Article VI.—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 havo jurisdiction with respect to those Contracting Parties which still have accepted its jurisdiction.

Article VI has engendered debate on the ground that it does not expressly state that the courts of the country where the accused has citizenship can exercise jurisdiction over the crime of genocide. It is well established that a nation has jurisdiction 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 l’nited States 88 17, 30 (1965). Thus, there are a number of Federal statutes containing criminal sanctions that have extraterritorial application. These cover such matters as fraud and misuse of visas, permits, and other entry documents, 18 U.S.C. § 1546, the transportation of stolen goods, securities, moneys, fraudulent state stamps, or articles used in counterfeiting, 18 U.S.C. § 2314, treason committed within the United States or elsewhere," 18 U.S.C. $ 2381, securities offenses, 15 U.S.C. 88 776 et seq., antitrust violations, 15 U.S.C. 88 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 crimes of genocide under the Convention would appear to be allayed by both the convention's negotiating history and the proposed understanding to be attached to the agreement. While the United Nations Secretariat draft would have allowed Parties to punish genocide “irrespective . . . of the place where the offense has been committed,” Economic and Social Council, Doc. No. E/623, at 16 (Jan. 30, 1948), the 1948 report of the Legal Committee of the United Nations General Assembly indicates that the more limited provision eventually adopted is seemingly not intended to prevent a State from bringing its own nationals to trial 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 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. 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 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 outside the State."

To make clear that the obligation of a State to punish genocidal acts com: mitted 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 by 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 International Convention on the Suppression and Punishment of the Crime of Apartheid, G.A. Res. 3068. (XXVIII), 30 November_1973, does not appear directly to envision the establishment of such a tribunal. Bassiouni & Derby, Final Report on the Establishment of an International Criminal Court for the Implementation of the Apartheid Convention and Other Relevant International Instruments, 9 Hofstra L. Rev. 523, 571 (1981) (hereinafter cited as Bassiouni & Derby]. The United Nations Committee on International Criminal Jurisdiction prepared a Draft Statute for an International Criminal Court in 1951, U.N. Doc. No. A/AC.-8/4 (Sept. 5, 1951), and issued a revised proposal in 1953, U.N. Doc. A/2645 (1954). Several other draft statutes have been proposed in recent years, Bassiouni & Derby 576–577, but there have been no active plans for the establishment of such a criminal tribunal. However, pursuant to the Apartheid Convention and a subsequent General Assembly Resolution, G.A. Res. 34/24, ann. 1, para. 20 (Nov. 15, 1979), a Draft Convention on the Establishment of an International Penal Tribunal for the Suppression and Punishment of the Crime of Apartheid and Other International Crimes has been proposed, providing for Supplemental Agreements that would permit the tribunal to investigate, prosecute, adjusticate, and punish additional international offenses. Bassiouni & Derby 547–571. In any event, it does not seem that ratification of the Genocide Convention obliges the Parties to enter into any further treaties to establish the envisioned criminal court. Comment, “Genocide: A Commentary on the Convention," 58 Yale L.J. 1149–50, n. 59, citing 95 Cong. Rec. App. A1270, A1271 (1919) (remarks of Mr. Lemkin) ; 1977 Hearings 23 (testimony of Mr. Hansell). Were the United States to contemplate such an action, it would appear that precedent may be found to support United States' participation in establishing an international court whose jurisdiction extends over subjects of international negotiation. McDougal & Arens, “The Genocide Convention and the Constitution,” 3 Vanderbilt L. Rev. 683, 694–705 (1950) ; see generally, Henkin, Foreign Affairs & the Constitution 196–201 (1972).


Article VII.-Genocide and the other acts enumerated in Article III shall not be considered as political crimes for the purpose of extradition.

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

Article VII appears to have no immediate effect on United States extradition law and practices. The Article contemplates that new or revised extradition treaties include genocide as an extraditable offense, but does not appear to require such inclusion. Where the crime is included, however, the Convention provides that the political crime defense should be made unavailable.

There is currently no United States statute or extradition treaty that covers genocide. In accordance with international law, the United States will not extradite fugitive criminals apart from a treaty. Factor v. Laubenheimer, 290 U.S. 276, 287 (1933). In this regard, the Supreme Court has held that "in the absence of a conventional or legislative provision, there is no authority vested in any department of the government to seize a fugitive criminal and surrender him to a foreign power.” Valentine 1. United States ex. rel. Veidecker, 299 U.S. 5, 9 (1936), quoting Moorc on Extradition. Where the United States has entered into an extradition treaty, domestic law authorizes the surrender of persons who have committed crimes in foreign countries, following specified legal proceedings 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 pledge the United States not to treat genocide as a political offense when this nation negotiates a new extradition treaty or revises an existing one. Although all United States extradition treaties now in force expressly prohibit the extradition of persons charged with offenses of a political nature, the Convention does not appear to alter this nation's existing treaty practice. Political crimes generally consist of two types: (1) offenses such as treason, sedition and espionage, which are committed exclusively against the State, and (2) offenses against individuals, which have a political element. 2 Bassiouni & Nanda, A Treatise on International Criminal Law 363 (1973). United States courts have traditionally treated the latter under principles established in the English case, In re Castioni, 1.Q.B. 149 (1890), where such offenses were found not to be extraditable if they were “incidental to and formed part of political disturbances.” Id. 166 It is unlikely that a court would consider genocide, as the planned destruction of a group, to 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.-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.-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 enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

Article IX, extending the contentious, or adversary, jurisdiction of the International Court of Justice in disputes concerning the interpretation, application, or fulfillment of the Convention, including those relating to State responsibility for genocide, exemplifies a “compromissary clause," a type of provision found in many multilateral and bilateral agreements to which the United States is a party. See, e.g., lists in Convention on Offenses Committed on Board Aircraft, S. Exec. Rep. No. 3, 91st 1st Sess. 24–26 (1969) (hereinafter cited as Report on Hijacking Convention). Use of the compromissary clause procedure would presumably invoke the Court's jurisdiction under Article 36(1) of its organizing Statute, which provides that "[t]he 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.

Some have expressed concern that Article IX would invalidate the Connally Amendment, which provides that United States adherence to the so-called optional clause of the I.C.J. Statute conferring compulsory jurisdiction on the Court, Art. 36(2), is subject to the condition that the Court's compulsory jurisdiction not extend to “disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States.” 61 Stat. 1218 (1946) (emphasis added). Because the Connally Amendment is appended to United States acceptance of compulsory I.C.J. jurisdiction under Article 36(2) of the Court's Statute, it is generally held that the amendment would not be affected by (nor would it defeat) U.S. agreement to the type of dispute settlement procedure articulated in Article XI. E.9., 1977 Hearings 32-34 (testimony on Mr. Hansell) ; Goldberg & Gardner, "Time to Act on the Genocide Convention,” 58 A.B.A.J. 141 (1972).

The relationship of the Connally Amendment to compromissary clauses was considered by the Senate during hearings held in 1960 on several maritime treaties. Convention on the Law of the Sea : Hearings on Exec. J-N, 86th Cong., 2d Sess., Before the Senate Comm. on Foreign Relations, 86th Cong., 2d Sess. (1960) (hereinafter cited as Hearings on Sea Law Conventions]; International Convention for the Prevention of Pollution of the Seas by Oil : Hearings on Exec. C, 86th Cong., 2d Sess., Before the Senate Comm. on Foreign Relations, 86th Cong., 20 Sess. (1960) (hereinafter cited as Oil Pollution Convention Hearings). Appended to four conventions produced by the first United Nations Conference on the Law of the Sea was an Optional Protocol providing for compulsory I.C.J. jurisdiction in disputes between the parties arising out of the interpretation or application of any of these conventions—a typical compromissary clause. In response to questions posed by the Senate Committee on Foreign Relations, Arthur Dean, Special Consultant to the Department of State and the Department's spokesman before the Senate, stated that the protocol was theoretically inconsistent with the Connally Amendment because it would contain no reservation such as that contained in the Amendment "unless ... the Senate chose to put it in.” Hearings on Sea Law Conventions 76. This inconsistency, however, would have no legal effect. As explained by the State Department:

“The United States, in accepting the optional protocol concerning the compulsory settlement of disputes, would be agreeing vis-a-vis any other state accepting this protocol to the submission to the International Court of Justice of any disputes arising out of the interpretation of operation of any of the four conventions for a binding decision by that Court. Such submission would not be subject to the Connally Reservation attached to the United States declaration accepting generally the compulsory jurisdiction of the Court. Id. 88–89.” 1

The same Connally Amendment question arose again during Senate consideration of the International Convention for the Prevention of Pollution of the Sea by Oil, signed May 12, 1954, which also contained a compromissary clause providing for submission of disputes to the I.C.J. In a memorandum for the Foreign Relations Committee, the State Department's Legal Adviser discussed, among other things, the source of I.C.J. jurisdiction in cases brought under Article XIII, the clause in question. The Article, he explained, “is a specific provision in a treaty permitting the parties to refer certain matters for determination by the International Court of Justice. The jurisdiction of the Court in such cases is provided in article 36, paragraph 1, of the statute of that Court. In my opinion, a

1 While the Committee on Foreign Relations favorably reported both the treaties and the protocol and the full Senate consented to ratification of all five documents, the protocol was later defeated on reconsideration.

" 1

[blocks in formation]
« PředchozíPokračovat »