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The British have done it. I don't believe they value their liberty any less than we do. The French have done it. The Italians have done it. All the great industrialized democracies have done it. Can it be that we, uniquely among the free nations of the world, are incapable to taking such a commitment?
We hear various arguments and some have been put before you today. It is said, for example, that this treaty embodies a novel theory of international law, that in etfect it internationalizes matters that should be subject exclusively to domestic jurisdiction.
This charge is totally without foundation. Our country has entered for decades into international commitments, regulating the actions of American citizens within our own country.
We do this in our national interest where it serves our foreign policy objectives. We take commitments regulating actions of Americans with respect to narcotic drugs, killing of wildlife, protection of nature, conducting forced labor, or slavery. We have made these commitments in treaties which have been approved by the Senate. It cannot be seriously maintained in the year 1981 that this is beyond the Constitution of the United States.
I am particularly struck by the fact that some of the commitments we have taken have to do with the protection of birds and trees, and I know of nothing in the Constitution of the United States that says that birds and trees are more important than people.
The second argument that is made is that somehow entering into this treaty is going to destroy the constitutional rights of our people. There is no constitutional right to conduct mass murder. A treaty that outlaws mass murder does not take away any rights of the American people.
A lot of the possible horribles conjured up by the people objecting to this convention ignore the plain language of this treaty. This treaty is not about hurting somebody's feelings, as some people have suggested, or depriving somebody of welfare benefits, or an individual act of murder. This treaty is about certain specified acts committed, and I quote, “with intent to destroy in whole or in part a national, ethnic, racial, or religious group, as such.".
It is only by ignoring that plain language that those objecting to this treaty can carry forward their parade of possible horribles. But if they are brought back to that sentence, it becomes clear that their objections are without foundation.
A third point that is continually raised is that this treaty is going to destroy the rights of the States, that it will destroy States rights and will federalize things that are now within the domain of the States.
That is clearly wrong. As has been pointed out by the American Bar Association and other experts, mass murder is not something that is within the
exclusive domain of the States. The carrying out of mass murder is a Federal matter. It has been made a Federal matter by the Civil Rights Act. This point is developed at length in the article which Justice Goldberg and I wrote some years ago.
So, it would not change in any manner the balance of power between the Federal Government and the States.
Mr. Chairman, there is another argument which we have heard again this morning. I am sure it will be stated later on, too. The argument is that this convention somehow increases the risk that Americans will be prosecuted overseas for alleged acts of genocide on trumped up charges.
That is totally wrong. It is wrong because it does not add in any respect to this risk and, as Senator Dodd suggested, it may even diminish the risk.
There is nothing to prevent a hostile nation from getting hold of some American and trying him on a trumped-up charge now. The advantage of the Genocide Convention is that it defines "genocide" with precision. Of course, anybody can charge the United States or an individual with genocide. But this convention, in the language that I have quoted, makes it clear that you can't try anybody unless he is trying to destroy a group. Therefore, an American soldier on the battletield, defending in a war, or somebody who commits some other act, cannot, under the terms of this convention, be said to have been carrying on genocide.
The precise legal definition provided here is a help to us in resisting unauthorized actions by foreign countries in this field.
Moreover, the extradition commitment in this treaty, article VII, has been the source of argument. Some have said doesn't this oblige us to extradite Americans to be tried abroad for acts of genocide? It should be emphasized that this extradition commitment of the parties to the Genocide convention is to grant extradition, and I quote, “in accordance with their laws and treaties in force.” So the only commitment we have is to extradite someone in accordance with our laws and with extradition treaties in force. If we don't have an extradition treaty in force with somebody, then there is no commitment. And, even if there is an extradition treaty in force with another country, our only commitment is to comply with its terms and with our own laws.
Where it is a trumped-up genocide charge, our laws would not permit extradition. Moreover, there is discretion in the Secretary of State to refuse extradition where it would not serve the national interest. This is a matter of discretion.
As the hearings have made clear in the past, and the legal research, we also have concurrent jurisdiction, the United States, to try our citizens for genocide based on nationality for alleged acts of genocide committed overseas.
So, we would have jurisdiction to try them for acts overseas and to deny extradition on the ground that they were already subject to our jurisdiction for that offense.
There is no international criminal court and there will be none. You know it and I know it. The best guarantee that there will be no such court to which our country will be subject is the Senate of the United States, which must give its approval to the setting up of such international tribunal before it would have jurisdiction over us and our citizenry. I think we can have confidence that the Senate would not do such a thing.
Finally, and I will close with this, Mr. Chairman, it is said that the language in this treaty is vague and ambiguous. But words are not self-interpreting. When we look at a statute or a treaty, we interpret it not only in the light of the language, but in the light of the legislative history and the drafting history.
I commend to the critics of this convention who are worried about phrases such as “incitement to genocide,” “in whole or in part,” and mental harm” that they read the clear legislative and drafting history which has been well put together in the book by Nehemiah Robinson, which demonstrates that their fears are groundless.
Mr. Chairman, I will conclude with this observation: It is well over 30 years since this treaty was sent to the Senate. It is 10 years since this committee has been actively considering it. This is my third personal appearance on behalf of the ad hoc committee to discuss this matter.
I sincerely pray that we will not be here 10 years from now litigating this same matter. I think the American people are entitled to a decision on this matter. It is time to stand up and be counted on the Genocide Convention. We owe this to our people and we owe it no less to the memory of 6 million Jews who died in the Holocaust and to other ethnic, racial, and religious groups who have suffered from genocide in our tragic history of the last century.
Thank you, Mr. Chairman.
[From the American Bar Association Journal, February 1972)
TIME TO ACT ON THE GENOCIDE CONVENTION
(By Arthur J. Goldberg and Richard N. Gardner) (The Senate Foreign Relations Committee has reported favorably on the Genocide Convention, which now awaits action by the Senate. A major stumbling block to ratification has been the continuing opposition of the American Bar Association, although the Sections and the Committees of the Association concerned with the subject matter have recommended favorable action on the convention. The legal objections raised against ratification are without foundation or substance and are unpersuasive.)
It is now more than twenty-five years since the United Nations first took up the question of the prevention and punishment of the crime of Genocide. On December 11, 1946, the General Assembly unanimously adopted Resolution 96(I), which affirmed "that genocide is a crime under international law" and requested the Economic and Social Council to draft a genocide convention. Two years later, on December 9, 1948, by Resolution 260A (III) the General Assembly unanimously approved the text of the Convention on the Prevention and Punishment of the Crime of Genocide.
Seventy-five countries now have ratified the Genocide Convention. The United States is the most prominent U.N. member that has not. One reason for our country's failure to ratify-very possibly the principal reason-has been the opposition of the American Bar Association recorded in a decision of the House of Delegates on September 8, 1949.
Since 1949, however, sentiment within the Association has changed. At the Midyear Meeting of the House of Delegates on February 23, 1970, a proposal to reverse the 1949 position and to place the American Bar Association on record in favor of the Genocide Convention failed by a vote of 126 to 130. Still more significant, every Section and Committee of the Association having specialized competence in the subject matter has come out in support of ratification of the Genocide Convention during the last few years: the Section of Individual Rights and Responsibilities, the Section of International and Comparative Law, the Section of Criminal Law, the Section of Judicial Administration, the Section of Family Law, and the Standing Committee on World Order Under Law.
Ratification of the Genocide Convention also has been endorsed by a number of past President of the Association, including Bernard G. Segal, William T. Gossett, Charles S. Rhyne and Witney North Seymour; by the Chairman of the Standing Committee on Federal Judiciary, Lawrence E. Walsh; by Solicitor General Erwin N. Griswold; and by many other leaders in the Association. Two distinguished members of the Association, Eberhard P. Deutsch and Alfred J. Schweppe, however, appeared on behalf of the Association to testify in opposition to the Genocide Convention in hearings held before a Senate Foreign Relations Subcommittee on March 10, 1971, and presented the legal objections that have been raised against the convention. Given the almost evenly divided vote in the House of Delegates and the support for the convention from relevant specialized Sections and Committees of the Association, we believe that it is appropriate to present the different viewpoints now existing in the Sections and Committees.
The authors of this article appeared at the Senate hearings on behalf of the Ad Hoc Committee on the Human Rights and Genocide Treaties (a committee of fifty-two national, civic, religious and labor organizations) and presented legal arguments in favor of the convention.?
The full Senate Foreign Relations Committee reported favorably on the convention by a vote of 10 to 4 and recommended that the Senate advise and consent to ratification. After carefully reviewing the arguments, the committee concluded:
We find no substantial merit in the arguments against the convention. Indeed, there is a note of fear behind most arguments—as if genocide were rampant in the United States and this Nation could not afford to have its actions examined by international organs—as if our Supreme Court would lose its collective mind and make of the treaty something it is not-as if we as a people don't trust ourselves and our society.
REPORT OF SENATE PROVIDES AUTHORITATIVE REFUTATION
We believe the report of the Senate Foreign Relations Committee provides an authoritative refutation of the legal arguments opponents of the Genocide Convention have employed to justify their opposition for nearly a quarter of a century.
We present here a point-by-point rebuttal of the legal arguments against the convention, drawing from our testimony to the Foreign Relations Committee as well as the committee's own report, in the hope that it may clarify the legal issues and contribute to speedy and favorable action by the Senate.
1. The contention that the Constitution prevents ratification of the Genocide Convention because genocide is a "domestic" matter is without foundation.
In his testimony to the Foreign Relations Committee, Mr. Deutsch declared himself fully in agreement with the decision of the United States to vote in favor of the General Assembly resolution on genocide of December 11, 1946 : "Standing foremost as a world leader in the protection of individual rights, she could do no less." But he added that “having joined in such a declaration as to a matter which lies, ultimately, within the domestic sphere of cach of the world's nations, the United States has gone far enough” (italics supplied). The italicized language is clearly incompatible with the statement in the General Assembly resolution that “genocide is a crime under international law”. Mr. Deutsch's extensive quotations from Resolution 96 (I) neglected to include this key provision.
Nowhere in his testimony did Mr. Deutsch explain his conclusion that genocide is a “domestic matter". His reasoning on this general issue may be found, however, in a report which he prepared in 1967 as chairman of the American Bar Association's standing Committee on Peace and law Through United Nations. It is there stated that a convention deals with "domestic" matters when it deals “with the relation between a state and its own citizens".' But this is not the relevant constitutional test.
As the Supreme Court declared in Geofroy v. Riggs 133 U.S. 258, 267 (1890), the treaty-making power may be exercised on any matter "which is properly the subject of negotiation with a foreign country”. The United States is a party to numerous international agreements relating to the activities of its own citizens within the United States because those treaties nevertheless deal with matters appropriate for international negotiation. Examples include treaties on nar
1 Hearings on the Genocide Convention Before a Subcomm. of the Senate Comm. on Foreign Pelations. !2d Cong.. 1st Sess. 12-54 cited hereafter as 1971 Hearings. The testimony of Mr. Deutsch was virtually identical to his article with Orie L. Phillips, Pitfalls of the Genocide Convention, 56 A.B.A.J. 641 (1970).
2 1971 Hearings at 107–137. 3 Sen. Ex. Rep. No. 92–6, 92d Cong., 1st Sess. (1971), cited hereafter as Senate Report. - Human Rights Conventions, Hearings Before the Senate Comm. on Foreign Relations, 90th Cong., 1st Sess., Part 2, 70 (1967).
cotics, public health o and nature conservation, and the Supplementary .Convention on Slavery, which Mr. Deutsch initially opposed on the ground that it also dealt with "matters essentially within the domestic jurisdiction of the United States'.8
In the words of the Special Committee of Lawyers of the President's Commission for the Observance of Human Rights Year, of which retired Supreme Court Justice Tom C. Clark was chairman : "Treaties which deal with the rights of individuals within their own countries as a matter of international concern may be a proper exercise of the treaty making power of the United States. . seem almost anachronstic that this question continues to be raised."
What is "properly the subject of negotiation with a foreign country” and, therefore, a valid subject of a treaty is something the Senate has an obligation to determine in each case. We do not take the position that the executive branch can make any matter “international” by putting it in a treaty. But the question should be determined objectively in the light of the current interests of the United States in an interdependent world and contemporary concepts of international law—not on the basis of notions that may have been appropriate to a different historical era.
By any objective standard, genocide is a matter of international concern and is, therefore, an appropriate subject for the exercise of the treaty-making power. In our shrinking world the massive destruction of a racial, religious or national group in one country has its impact on members of this group in other countries, stimulates demands for intervention and inevitably troubles international relations. The fact that the United Nations General Assembly unanimously declared genocide to be a crime under international law in 1949 and that seventy-five members of the United Nations are parties to the Genocide Convention (including, to name just a few, such deuocracies as the United Kingdom, Canada, France, Mexico and the Scandinavian countries) is further evidence that genocide can no longer be considered a matter wholly within domestic jurisdiction. As was said by the Senate Foreign Relations Committee : "On both moral and practical grounds, the commission of genocide, involving as it must mass action, cannot help but be of concern to the community of nations."
2. The contention that the Genocide Convention would alter the balance of authority between the states and the Federal Government is unfounded.10
The Constitution by Article I, Section 8, specifically gives Congress the power to "define and punish . offenses against the law of Nations." Genocide is an offense against the law of nations and is thus within the power of Congress to outlaw. Moreover, the power of the Federal Gover.iment in this field has been confirmed in the Civil Rights Acts of 1957 and 1964 and the Voting Rights Act of 1965. The Association's Section on Individual Rights and Responsibilities said in its report : "Ratification of the convention will add no powers to those the Federal Government already possesses.”
3. The contention that ratification of the Genocide Convention would subject American citizens to trial in foreign countries like North Vietnam on trumped-up charges of genocide is wholly false."
There is nothing in the Genocide Convention that would provide warrant for charges by North Vietnam that our prisoners of war, being held under conditions in violation of the Geneva Convention, are guilty of genocide. This is a matter of great concern to the authors and, of course, iany Americans regardless of their views about the war in Vietnam. As the Senate Foreign Relations Committee
• 1912 Convention Relating to the Supression of the Abuse of Opium and Other Drugs (T. S. 612) ; 1931 Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs (1. S. 863) ; 1953 Protocol for Limiting and Regulating the Cultivation of the Poppy Plant, the Production of the International and Wholesale Trade In, and Use of Opium (T.I.A.S. 5273).
World Health Organization Regulations No. 1 (T.I.A.S. 3182), as amended (T.I.A.S. 3482 and 4409), and World Health Organization Regulations No. 2 (T.I.A.S. 3625), as amended (T.I.A.S. 5156, 4420, 4823, 4896, 5459 and 5863).
7 1940 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (T. S. 981).
8 Human Rights Conventions and Recommendations, Draft of Proposed Report for Consideration by Section and Committee, April, 1967.
9 For another example of confusion as to the relevant constitutional test, see Raymond, Don't Ratify the Human Rights Conventions, 54 A.B.A..!. 141 (1968)Mr. Raymond, evidently unaware of the treaty cited in note 7. takes the view that the United States can milie Treaties on the protection of wildlife only when birds fly from one country to another.
10 This contention appears in the appendix to Mr. Schweppe's statement to the Senate subcommittee. 1971 Hearings at 71, although it is not in Mr. Deutsch's testimony.
11 This contention appears in the testimony of Mr. Deutsch, 1971 Hearings at 20, 37–39.