THE GENOCIDE CONVENTION

THURSDAY, DECEMBER 3, 1981

UNITED STATES SENATE,

COMMITTEE ON FOREIGN RELATIONS,

Washington, D.C.

The committee met, pursuant to notice, at 10:06 a.m., in room 4221, ksen Senate Office Building, Hon. Charles H. Percy (chairman of committee) presiding.

Present: Senators Percy, Helms, Boschwitz, Pell, and Dodd.

The CHAIRMAN. This morning, the Committee on Foreign Relations I review the status of the International Convention on the Prevenand Punishment of the Crime of Genocide and the arguments for I against its ratification.

The Genocide Convention has been before the Senate for 32 years - has been reported favorably by this committee no less than four

es.

This morning's hearings mark the 11th day since 1950 that this mittee has convened to hear public testimony on the Convention. it has been debated in the Senate at length only once, in 1974, when attempts to break a filibuster mustered 55 votes, a majority of the ate, but not the two-thirds that would be required for Senate roval.

ince that time, the principal organization opposing ratification, American Bar Association, reversed its position and now strongly ports ratification. We will be hearing from the ABA later this ning. I am very pleased to indicate that, in addition to the distinshed Senators that we have with us this morning to start this hear-who will be appearing on both sides of the issue-Senator Javits, former colleague and the former ranking member of this comtee, also will be here at around 11:30 to testify.

peaking for myself-because this is not the kind of issue that somees we have when we hear an issue for the first time-I have particted in debates on this issue before, and my position on this treaty is sonably well known. It has been publicized one way or the other, orably and unfavorably, depending on the writer's point of view. support ratification of the Genocide Convention, as I have ever since ing to the Senate 15 years ago. It remains today what it was at time of its original negotiation: an important statement by the ions of the world that those who would perpetrate the unspeakable ne of trying to exterminate a national, ethnic, racial, or religious up must not be allowed sanctuary anywhere in the world.

et, the significance of this convention is not merely symbolic. It ms part of a general network of treaties which declare certain ac

tions to be international crimes, justifying concerted action by all countries to bring the perpetrators to trial. However new and untried this concept may have seemed to the Senate in 1949, there is nothing radical or unusual about it today. Just last summer, the Senate approved by a vote of 98 to 0 two treaties which provide for just such international action, the first against those who take hostages for political purposes, and the second against those who divert nuclear materials for unauthorized use.

Another such treaty directed against those who seize diplomats for political purposes provided an important basis for our case against the Government of Iran, and added to the wide condemnation of the ayatollah's government by the rest of the world for the holding of American hostages. If we can agree to condemn and seek to punish such violators of international law, why should we not agree to treat the perpetrators of genocide in the same manner?

In short, I think the Senate's original concerns and hesitations about the Genocide Convention have not stood the test of time. They were raised in the course of debate about the treaty power and about the authority of the Federal Government, which long since have been resolved. Most of the arguments which are made against ratification are either outdated, misinformed, or based upon farfetched interpretations of the treaty's provisions. The remaining arguments are simply not persuasive to me, nor do I think they would be to most Americans.

Ratification by the United States may be a very small step in the scheme of things, but it does no credit to a great nation like the United States to hesitate in taking a small step forward for reasons which are not sustained by a serious consideration of American interests in the world.

Clearly, the ultimate prospects for ratification of this convention will depend in large part on the position taken by the Reagan administration. During his recent confirmation hearing, the new Assistant Secretary of State for Human Rights and Humanitarian Affairs, Elliot Abrams, indicated that the administration had only just begun its review of this treaty. He expressed some initial and positive personal views on ratification of the Genocide Convention, which I hope will be widely shared in the rest of the Government.

I hope the committee's hearing this morning will assist in that process. It is my present intention to await the outcome of the administration's review before considering further action in the committee, provided that a reasonable time, and only a reasonable time, is taken by the administration in this regard.

Our first witness this morning is my esteemed colleague, the President pro tem of the Senate, the chairman of the Senate Judiciary Committee, Strom Thurmond of South Carolina, and my seatmate. We don't always agree as we sit alongside each other, as we probably will not agree this morning. But when we take into account that the American Bar Association, a highly respected organization, up until recently opposed this treaty, and had many reasons which it gave for that opposition, now has reversed its position, we know that good men are on both sides of this issue. This is not a clear-cut issue. The purpose of this committee's hearing is to give open hearing to those people for

1 we have great respect, who have strong convictions on one side other of the issue.

ator Pell, do you have a statement that you would like to make? ator PELL. Thank you, Mr. Chairman, I do have a statement. hank you and our colleagues for holding this hearing which, as >ointed out, is the 11th public hearing conducted by our committhis convention since it was submitted in 1949.

now that I personally have voted on five separate occasions with jority of our committee to report the convention to the floor of Senate. But, for a variety of reasons, the Senate never has been to vote on this issue.

guess, too, this cause, this issue, has a rather personal meaning ne because my father, Herbert Pell, was Chairman of the United es Delegation to the United Nations War Crimes Commission. e he took a very hard line with regard to the crime that we now 'genocide."

cidentally, "genocide" is a term that was coined by Raphael Lemafter the war, during the early days when people were interested is dreadful problem, having seen a race almost exterminated, and ng seen the world do almost nothing about it. There was no name his phenomenon, and at this hearing I think it is proper to pay er tribute to Raphael Lemkin, the person who illuminated and red common acceptance for the term "genocide," which was a crime ɔrrible that it had not had a term applied to it previously. ecause of my father's strong view that genocide should be conred a war crime, and because of the State Department's opposition at the time, because it was ex post facto, he lost his job. He offered ay for the mission himself in London. In one way or another, he fired from it, but he secured public support, and a few days later administration turned around and said yes, genocide would be sidered a war crime by the U.S. Government.

o, I have a personal interest in this. While my father has long gone, I consider that one of the missions he would like to have - accomplished was the fulfillment of the work of the United Nas War Crimes Commission performed in London at the end of rld War II. The rest of the world behaved like ostriches, holding r heads in the sand, not wanting to see the horrors that were going n the German concentration camps.

think today's hearing is a good idea, and I would hope that by ring both the pros and cons of this treaty we could move ahead ard ratification. As we do so, I think we should pay some silent ute to Raphael Lemkin, who added so much to this whole cause. 'hank you, Mr. Chairman.

"he CHAIRMAN. Thank you, Senator Pell.

ust so that we do not give the impression that the Senate Foreign ations Committee, its members having given two statements in or of the treaty, is unified in its viewpoint, and is not a reflection che difference of opinion that is held in the Senate, we will have opening statement from Senator Helms, who may give a different pression than Senator Pell and I gave.

Senator HELMS. Thank you, Mr. Chairman.

What you have said in a delicate way, in your customary, gentle is that I am about to be the party-pooper here this morning.

The truth is that what we are doing, as Sam Ervin puts it, is resurrecting an issue, a treaty, a consideration that long has been discredited, and that never has accumulated enough support in the U.S. Senate for ratification since it was signed in 1948. It won't be ratified this time either.

If you are contemplating that we will get 55 votes on cloture this time, I think you are overestimating the situation.

This hearing is an exercise in futility and a waste of time in terms of what I perceive to be any chance that this unwise Genocide Treaty will be ratified.

Now I say this with all due respect to my colleagues and to the ladies and gentlemen of the American Bar Association. And I do hope to welcome the Bar Association home as a prodigal child, returning to the point of wisdom on this and some other matters.

The very fact that more than three decades have passed since the treaty was signed has given us an opportunity to look at it in the light of entirely changed conditions and with greater experience in the development of international law and cooperation.

I believe that such a review easily will demonstrate what great folly it would have been to have ratified this so-called Genocide Treaty in 1948, and what supreme folly it would be to do so now.

Mr. Chairman, what this proposed treaty does is to create an entirely new theory of international law. Criminal law always has been a matter of purely domestic concern, and in using the word "concern," let me emphasize that I use it in purely a legal and technical sense and not in the humanitarian sense.

All of us, of course-all of us- -are concerned in a human way about violations of fundamental human rights in other nations. But legally we are incompetent to do anything about it unless we wish to alter the most cherished premise of international relations, namely, the sovereign independence of nations.

If, by an act of our sovereign will, we submit our sovereignty henceforth to the will of the international community, we diminish our own Nation and the loyalty which we as citizens owe to that Nation. Criminal law goes to the very essence of security of a nation, unlike matters of purely international concern. If we allow the humanitarian sense of the word "concern" to cloud our judgment about the distinction between domestic and international jurisdiction, then we are disloyal to our Constitution and to our country.

I think that is the reason for the widespread and deep antagonism which American citizens feel toward the Genocide Treaty when its implications are explained to them.

I think that as Americans we sense a feeling of hostility toward our own notions of justice and equity. These are manifest in so many ways in our international relations. We have a unique development of legal history, the result of our traditions, our religions, our moral and our ethical values, and our experiences.

This Senator simply cannot see justification for submitting this tradition to the judgment of the world. It is noteworthy that the treaty imposes an obligation upon its adherents to pass implementing legislation to fulfill its purposes, and it is going to be interesting to see how that applies to the violent nations of this world. We will see whether