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I am sure this would be debated at great length in the courts if anyone should take it to court.

I want to thank you, Senator Proxmire.

I woke up this morning to "Mutual News” at 7 a.m., which pointed out that the distinguished Senator from Wisconsin had at least 2,500 times since 1967 raised the issue of the Genocide Convention on the floor of the U.S. Senate. It stated that this hearing today was going to give him an opportunity to once more bring our attention and concern to this issue.

I thank you.
Senator PROXMIRE. Thank you.
The CHAIRMAN. Senator Dodd, thank you very much.
Thank you, Senator Proxmire for your presence today.
Senator PROXMIRE. Thank you, Mr. Chairman,

The CHAIRMAN. I understand that Ambassador Gardner must leave at 12:15, but I understand also that Senator Javits' testimony will be brief.

We are so very honored and pleased to have our former colleague with us today.

Senator BOSCHWITZ. I am going to have to apologize to Senator Javits. I will have to leave in just a few minutes.

So, if I get up in the middle of your testimony, Senator, please forgive me. I will be back later. I have a meeting at 11:30 that I cannot avoid.

The CHAIRMAN. Senator Javits, please proceed as you wish.

STATEMENT OF HON. JACOB JAVITS, A FORMER U.S. SENATOR

FROM NEW YORK, ACCOMPANIED BY ALBERT A. LAKELAND, JR., FORMER MINORITY STAFF DIRECTOR, SENATE COMMITTEE ON FOREIGN 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 go to Richard Gardner, our former Ambassador to Italy, for yielding to 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. I have told him so a good part of those 2,500 times on the floor of the Senate, and I am delighted to repeat it here. It is a signal service that he has rendered to the Nation and to decency in the world by his persistent, unique, and long-continued insistence that this is the path of justice. And, so long as he has a voice to be expressed here, this is what he wants our country to stand for: Justice-simple, elementary justice, according to the Old Testament, the New Testament, and just about every other documentation of religious philosophy that recorded wisdom has ever shown.

Our country finds itself in an anomaly. We are taking all the raps in this field.

What is human rights about? In the ultimate, it is the same thing. As 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 happen again, and that never again will mankind be silent or powerless in the face of such a thing as the Holocaust, is not necessarily assured or 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 wiĩl 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.

The CHAIRMAX. Thank you very much, Senator Javits.

I would like everyone in this room to know that I did not see a note in front of Senator Javits all this while. He did not look at a thing. He just spoke right from the heart. That is so very characteristic of him.

We want to recognize, also, the presence of a former distinguished member of our staff and a very strong friend of ours, including you, Senator Javits, Pete Lakeland. We are honored to have you here with us today, too, Pete.

Mr. LAKELAND. Thank you.

The CHAIRMAN. You mentioned the ABA's position, which did change in 1976. I agree that this makes a dramatic change in the course of events. The ABA debated and deliberated this at great length and came to a solemn conclusion.

I have not had a chance to look at the ABA testimony yet as it came in only this morning. Do you happen to know offhand what the history of this has been with the ABA and what brought that organization to reverse its position on the treaty!

Senator Javits. We have a printed copy of the last report of this committee, dated 1976, reported by direction of the committee by Hubert Humphrey. Its date is April 29, 1976. At the bottom of page 4 there is a rundown of the Bar Association and its meetings and so on, with suitable credit for Bruno Bitker, as he so richly deserves. His name already has been mentioned today. It reviews the long fight within the committee and showed that the committee changed its position upon action of its House of Delegates, which previously had disapproved the treaty for many of the reasons testified to here earlier this morning.

But the American Bar Association is entitled to enormous congratulations for facing the issues. I might say that among the most proud words to me which anyone can utter, especially in public life, are the words “I am persuaded.” Certainly we have that from the American 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 my old friend, a particularly close personal friend and colleague, being with us today. I think he knows how much I miss him. He and the former chairman of our committee were my really two best friends here.

I miss you very much and I welcome you here again, Jack.
Senator Javits. Thank you, Claiborne.
The CHAIRMAN. Senator Dodd.

Senator Dopp. I miss you, too, and I did not even get a chance to serve with you. But believe me, I miss you up here. It is a pleasure to hear someone as eloquent, as thoughtful, and as perceptive as you. You are one of the giants of our time. I think if we could fulfill any wish 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 Senator 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 Javirs. 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.

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 Convention: First, is the national interest of the United States served by taking an international commitment against mass murder? Second, is there any valid legal objection to our doing so?

1 See p. 46. ! See p. 72

With your permission, I want to address these two questions as briefly as I can.

On the national interest of our country, may I make this personal statement.

As you know, I recently have come back after 4 years as U.S. Ambassador to Italy. I have come back deeply troubled. My experience in Europe these last 4 years has confirmed my deep concern that our national security is threatened as never before. It is threatened by the growth of Soviet military power and the willingness, demonstrated in Afghanistan and elsewhere, of the Soviet Union to use that power outside its borders and outside its sphere of influence.

I favor and strongly support measures to defend our security through a greater and stronger military defense. But, Mr. Chairman, our national security cannot be assured by arms alone, as you have so many times stated so eloquently.

The Soviet Union seeks the political isolation of the United States and the political isolation of the United States would be just as great a threat to our national security as the SS-20 or any intercontinental ballistic missile possessed by the Soviet Union.

Our inability, our incapacity, our refusal to ratify this and other human rights treaties contributes to this political isolation of our country.

One way we can defend our national security in the nonmilitary field is by waging the diplomacy of ideas, because what is going on in Italy, in Europe and around the world is a struggle, an ideological struggle, between ourselves and the Soviet Union and those who believe in their philosophy.

In Italy, one of our closest allies, the Communist Party grew between World War II and 1976 from 18 percent to 34.4 percent in the vote. When I arrived, they were on the threshold of taking power in the government.

During my 4 years, I toured the length and breadth of Italy, a country on which you and Senator Pell are great experts, trying to convey to the people of Italy what the issue was in the world between freedom and totalitarianism.

I went into the universities and talked about what we believe in, in the West, that unites us and distinguishes us from the Soviet Union. I talked more than anything else about human rights. In many of my lectures, members of the Communist Party sat in the first row glumly and with increasing embarrassment. The reason they were embarrassed is obvious: There is no way that they can reconcile the philosophy of Marxism-Leninism with the philosophy of freedom, a philosophy which is embodied in these human rights instruments.

What I am trying to say is that I deeply believe, based on this experience in Italy and on my prior experience in the United Nations, that our failure to ratify this instrument is a diplomatic embarrassment which gets in the way of our pursuing that diplomacy of ideas which 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 our taking an international commitment against mass murder?

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