m sure this would be debated at great length in the courts if anyhould take it to court. want to thank you, Senator Proxmire. woke up this morning to "Mutual News" at 7 a.m., which pointed hat the distinguished Senator from Wisconsin had at least 2,500 s since 1967 raised the issue of the Genocide Convention on the of the U.S. Senate. It stated that this hearing today was going to him an opportunity to once more bring our attention and concern is issue. hank you. -nator PROXMIRE. Thank you. ne CHAIRMAN. Senator Dodd, thank you very much. hank you, Senator Proxmire for your presence today. enator PROXMIRE. Thank you, Mr. Chairman. he CHAIRMAN. I understand that Ambassador Gardner must leave 2:15, but I understand also that Senator Javits' testimony will rief. We are so very honored and pleased to have our former colleague us today. enator BOSCHWITZ. I am going to have to apologize to Senator its. I will have to leave in just a few minutes. o, if I get up in the middle of your testimony, Senator, please fore me. I will be back later. I have a meeting at 11:30 that I cannot id. he CHAIRMAN. Senator Javits, please proceed as you wish. ATEMENT OF HON. JACOB JAVITS, A FORMER U.S. SENATOR 'ROM NEW YORK, ACCOMPANIED BY ALBERT A. LAKELAND, JR., 'ORMER MINORITY STAFF DIRECTOR, SENATE COMMITTEE ON OREIGN RELATIONS Senator JAVITS. Thank you. I will do my best to be brief. Mr. Chairman, thank you very much for calling me. My thanks also to Richard Gardner, our former Ambassador to Italy, for yielding me. I thank the members of the committee for staying to listen. My hero, too, as has been said here time and again, is Bill Proxmire. ave told him so a good part of those 2,500 times on the floor of the hate, and I am delighted to repeat it here. It is a signal service that has rendered to the Nation and to decency in the world by his percent, unique, and long-continued insistence that this is the path of stice. And, so long as he has a voice to be expressed here, this is what wants our country to stand for: Justice-simple, elementary justice, cording to the Old Testament, the New Testament, and just about ery other documentation of religious philosophy that recorded wism has ever shown. Our country finds itself in an anomaly. We are taking all the raps in s field. What is human rights about? In the ultimate, it is the same thing. Bill has said, there is no more precious right than the right to live. And yet, the incarnation of the termination, that it shall never hapn again, and that never again will mankind be silent or powerless the face of such a thing as the Holocaust, is not necessarily assured guaranteed by anybody or anything. And the efforts to bring it into law were surrounded with such care that we lawyers reversed our position—think of it, reversed our position-after 26 years. We waited it out, and now the American Bar Association is for this convention and not against it. At one stroke it nullified every legal argument made here: on the Constitution, on extradition, on the power of the Congress, on implementing legislation, on trial in foreign courts, on denial of constitutional process, et cetera. What is the use of arguing all those old sores? They are done. The arch opponent of them all, the ABA, has now changed and we come from a minus to a plus in terms of ratification of this treaty. We had to go through the ridiculous gyration of distinguishing between totalitarianism and authoritarianism, whatever that means, in order to give a remote coloration to our views and our policies on human rights. We should have some shred of dignity left and some claim to doing what no great nation can ever do-bluff. Great nations cannot bluff. Yet we are trying it in this field. So, it is with a deep sense of shame-shame-that we must confess that after all these years we still hear the echoes of the same cries of prejudice, discrimination, and misrepresentation of what the treaty says and what it does. It is very hard to believe that this is so deep that it cannot be exorcised where it exists. Now, we did not come very far from winning last time. We had 55 votes. Today it would take 60 for cloture. We had it on two occasions when Senator Mansfield took down the bill. He promised me, and it was thoroughly aired on the floor of the Senate time and again, that if I could produce in writing 60 votes, he would put the treaty on again for consideration. The Foreign Relations Committee opened the door to that because I said that I could not get the 60 unless there were an imminent likelihood of the measure being called up. So, in deference to that desire to forward the matter, this committee reported out this treaty four times. I personally have urged Senator Proxmire, with his very great influence in this matter, and, for what it is worth, mine, to urge Senator Percy to try again. I think it is a signal tribute to Senator Percy, a dear friend as well as a dear colleague, that he has tried it again, even though he could easily end up with egg on his face. That is not easy for the chairman of such a distinguished committee. You are bound to have such things happen anyhow, but you don't look for them. I think the country ought carefully to note this fact. So, it is simply a matter of our Nation realizing that in this great storm of revolutionary change, there are some truths that still persist. When the world has within its hands the ability to make one come true, it seems so sad that we just can't do it. I hope, Mr. Chairman, that we will persist. I hope the committee will report this, and I hope that it will move President Reagan to support this. That's where it is, of course; that's where it is. We are so close that an administration policy for this treaty, or a policy of some other administration for this treaty is what it will take to get it ratified. Then, Mr. Chairman, nothing will happen. Nothing at all will happen, except that the honor of our country will have been sustained. Thank you. he CHAIRMAN. Thank you very much, Senator Javits. would like everyone in this room to know that I did not see a note ront of Senator Javits all this while. He did not look at a thing. just spoke right from the heart. That is so very characteristic of We want to recognize, also, the presence of a former distinguished nber of our staff and a very strong friend of ours, including you, ator Javits, Pete Lakeland. We are honored to have you here with oday, too, Pete. Ir. LAKELAND. Thank you. he CHAIRMAN. You mentioned the ABA's position, which did nge in 1976. I agree that this makes a dramatic change in the rse of events. The ABA debated and deliberated this at great gth and came to a solemn conclusion. have not had a chance to look at the ABA testimony yet as it came only this morning. Do you happen to know offhand what the hisy of this has been with the ABA and what brought that organizato reverse its position on the treaty? Senator JAVITS. We have a printed copy of the last report of this mittee, dated 1976, reported by direction of the committee by bert Humphrey. Its date is April 29, 1976. At the bottom of page here is a rundown of the Bar Association and its meetings and so with suitable credit for Bruno Bitker, as he so richly deserves. His ne already has been mentioned today. It reviews the long fight thin the committee and showed that the committee changed its posin upon action of its House of Delegates, which previously had disproved the treaty for many of the reasons testified to here earlier s morning. But the American Bar Association is entitled to enormous contulations for facing the issues. I might say that among the most oud words to me which anyone can utter, especially in public life, are words "I am persuaded." Certainly we have that from the Amerin Bar Association. The CHAIRMAN. Thank you very much, Senator Javits. Senator Pell. Senator PELL. I want to say that I am deeply touched and moved by old friend, a particularly close personal friend and colleague, ng with us today. I think he knows how much I miss him. He and e former chairman of our committee were my really two best friends re. I miss you very much and I welcome you here again, Jack. The CHAIRMAN. Senator Dodd. Senator DODD. I miss you, too, and I did not even get a chance to rve with you. But believe me, I miss you up here. It is a pleasure to ar someone as eloquent, as thoughtful, and as perceptive as you. ou are one of the giants of our time. I think if we could fulfill any sh you might have, it would be to get this thing through. Senator JAVITS. That certainly is true. Senator DODD. If we can't do anything else, we ought to do that for nator Javits. Senator JAVITS. Thank you. The CHAIRMAN. I want to say publicly also that I not only miss Senator Javits, but I have found him at any hour of the day or night at the end of the telephone. Whenever this committee needs him, he always is there. When I called him the other day and asked if he would make an appearance here today, he certainly acceded to that request immediately. We are very grateful for your continuing counsel and wise judgment. I happen to believe that in this position, as in so many others, you are always right. Of course, that is not always accepted by every member of this committee. Thank you very much, Senator Javits. Senator JAVITS. Thank you, Mr. Chairman, and thank you, Senator Pell. [General applause for Senator Javits.] The CHAIRMAN. Our next panel of witnesses will consist of Prof. Richard N. Gardner, Columbia Law School, New York, N.Y., representing the Ad Hoc Committee on the Human Rights and Genocide Treaties; and Robert M. Bartell, chairman of the Board of Policy of Liberty Lobby, Washington, D.C. Professor Gardner we are pleased to have you back before this committee and welcome your statement. STATEMENT OF PROF. RICHARD N. GARDNER, COLUMBIA LAW SCHOOL, REPRESENTING THE AD HOC COMMITTEE ON THE HUMAN RIGHTS AND GENOCIDE TREATIES, NEW YORK, N.Y. Ambassador GARDNER. Mr. Chairman, it is a rare and special privilege to be testifying after the most eloquent and powerful statement of Senator Javits, one of our greatest Americans. It is also a very special privilege to be here representing the Ad Hoc Committee on the Genocide and Human Rights Treaties which, as you well know, represents now 55 national organizations, our major Catholic, Protestant, and Jewish religious groups, major veterans' groups, civic groups, women's groups, black organizations, and labor organizations. Together, they comprise millions of our fellow Americans. I would like, with your permission, to have printed at the close of my testimony the list of these organizations so that it may be on the record who has stood up for the Genocide Convention.1 With your permission, Mr. Chairman, I would also like to have printed-and this will enable me to be shorter in my verbal statementthe article, "Time To Act on the Genocide Convention," which Arthur J. Goldberg and I wrote some years ago in the American Bar Association Journal, and which I believe deals with the various legal objections that have been presented to us today. The CHAIRMAN. Those insertions will be incorporated in the record of this hearing, without objection. You are referring to the February 1972, statement that you and Arthur Goldberg made, are you not? Ambassador GARDNER. That is correct.? Mr. Chairman, it seems to me that there are two-and really only two-major issues before this committee with respect to this Conven 1 See p. 46. • See p. 72. .: First, is the national interest of the United States served by takan international commitment against mass murder? Second, is e any valid legal objection to our doing so? With your permission, I want to address these two questions as -fly as I can. On the national interest of our country, may I make this personal ement. s you know, I recently have come back after 4 years as U.S. Amsador to Italy. I have come back deeply troubled. My experience Europe these last 4 years has confirmed my deep concern that our ional security is threatened as never before. It is threatened by the wth of Soviet military power and the willingness, demonstrated Afghanistan and elsewhere, of the Soviet Union to use that power side its borders and outside its sphere of influence. favor and strongly support measures to defend our security ough a greater and stronger military defense. But, Mr. Chairman, national security cannot be assured by arms alone, as you have so my times stated so eloquently. The Soviet Union seeks the political isolation of the United States I the political isolation of the United States would be just as great hreat to our national security as the SS-20 or any intercontinental listic missile possessed by the Soviet Union. Our inability, our incapacity, our refusal to ratify this and other man rights treaties contributes to this political isolation of our antry. One way we can defend our national security in the nonmilitary d is by waging the diplomacy of ideas, because what is going on in ly, in Europe and around the world is a struggle, an ideological uggle, between ourselves and the Soviet Union and those who believe their philosophy. In Italy, one of our closest allies, the Communist Party grew beeen World War II and 1976 from 18 percent to 34.4 percent in the te. When I arrived, they were on the threshold of taking power in › government. During my 4 years, I toured the length and breadth of Italy, a counon which you and Senator Pell are great experts, trying to convey the people of Italy what the issue was in the world between freedom d totalitarianism. I went into the universities and talked about what we believe in, in e West, that unites us and distinguishes us from the Soviet Union. alked more than anything else about human rights. In many of my tures, members of the Communist Party sat in the first row glumly d with increasing embarrassment. The reason they were embarrassed obvious: There is no way that they can reconcile the philosophy of arxism-Leninism with the philosophy of freedom, a philosophy hich is embodied in these human rights instruments. What I am trying to say is that I deeply believe, based on this exrience in Italy and on my prior experience in the United Nations, at our failure to ratify this instrument is a diplomatic embarrassent which gets in the way of our pursuing that diplomacy of ideas hich is essential to the defense of our national security in the 1980's. Now I come to the second question: Is there any legal objection to ir taking an international commitment against mass murder? |