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pointed out in its report, however, Hanoi can make trumped-up charges of genocide against our servicemen who fall into their hands with or without reference to the Genocide Convention. In the words of the committee: “It is reality that American prisoners of war in North Vietnam could now be charged by the Hanoi government for war crimes or genocidal acts on whatever trumped-up charges Hanoi wishes to make. Their peril will not be increased by approval of this convention while peril may be avoided for tens of millions by ratification of the convention."
As to the possibility of extraditing Americans from the United States to North Vietnam or other countries for acts of genocide allegedly having occurred there, it should be remembered that under the Genocide Convention, extradition would take place only in accordance with laws and treaties in force. We have no extradition treaties with North Vietnam. Nor do we make such treaties with countries whose legal systems do not afford basic procedural safeguards. We do not grant extradition in any event unless a prima facie case is established against the accused and unless the accused will be afforded by the requesting state the due process provided by our own law.
Finally, the Genocide Convention, in accordance with an agreed interpretation of Article VI which is contained in the relevant U.N. committee report, “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”. 12 The Foreign Relations Committee expressed itself as fully satisfied on this point but recommended an understanding to this effect to remove any possible uncertainty. The Nixon Administration has further indicated that any agreements we make covering genocide will assert the right of the United States to refuse to extradite an accused if he is standing trial in the United States or if our Government elects to try him itself.13
4. The argument that ratification of the Genocide Convention would subject the United States to irresponsible charges of genocide arising out of Vietnam, our treatment of American blacks or other situations is without foundation.14
Here again, ratification of the Genocide Convention does not alter the present situation to our disadvantage. Even in the absence of our ratification, there is nothing to prevent a country from making baseless charges of genocide against this country in the U.N. If anything, ratification would improve our position, because the convention requires an “intent to destroy, in whole or part, a national, ethnical, racial or religious group as such".
The tragic events in Vietnam and the terrible loss of life, both military and civilian, that has occurred there do not meet this definition, whatever other domestic legal consequences may flow from allegedly illegal acts there. The treatment of the black community in the United States, which admittedly has suffered widespread discrimination for many years, also does not fall within the definition. In both cases the necessary intent to destroy a racial or ethnic group as such is missing.
As the Senate report indicates, ratification of the convention would, if anything, help us rebut these charges by subjecting our behavior to a precise legal definition of genocide.
5. The argument that provision for the settlement of disputes by the International Court of Justice would override the Comally Amendment and unreasonably limit our sovereignity is without substance.15
The Connally Amendment applies only to our acceptance of Article 36(2) of the court's statute, the so-called optional clause providing for compulsory jurisdiction across the board. Cases arising as a result of our adherence to the Genocide Convention would fall under Article 36(1) of the court's statute, which covers the court's jurisdiction as provided for in specific treaties. The United States has ratified many treaties containing the same type of provision for the settlement of disputes by the International Court of Justice as is contained in the Genocide Convention. Among these treaties are the Supplementary Convention on Slavery, the Antarctic Treaty, the Statute of the International Atomic Energy, and the Convention on the Privileges and Immunities of the United Nations ratified in 1970,
12 See Robinson, The Genocide Convention-A Commentary 83-84 (World Jewish Congress, 1960), containing citations to the drafting history on this point.
1: Genocirle Conrention, Hearings Before a Subcomm. of the Senate Comm. on Foreign Relations. 91st Cong., 2d Sess. 45-46 (1970), testimony of George Aldrich, Deputy Legal Adviser. Department of State.
14 This argument is made by Mr. Deutsch, 1971 Hearings at 18, 31-33, 15 This argument is made by Mr. Deutsch, 1971 Hearings at 22, 46.
This provision for the settlement of disputes over the interpretation of the Genocide Convention does not unreasonably limit our sovereignty. Our interests are better served by having any charges of genocide against us considered in a judicial forum like the International Court of Justice than in more politically motivated forums. Of course, by this provision we do undertake a commitment to subject ourselves to third-party judgment in a limited sphere, as do the other parties to the convention. This exchange of commitments may be found in many treaties to which we have become a party. Where the exchange of commitments serves our national interest, as it does here, it provides no valid basis for objecting to the treaty.
It should be noted that the Soviet Union and other countries have ratified the convention subject to a reservation that they do not accept compulsory reference to the International Court of Justice. As a result, the United States will be in a position to invoke these countries' reservations in its own behalf to defeat the court's jurisdiction if a case charging genocide should be brought against us by those countries.
6. The argument that various provisions in the convention-"in whole or in part”, “mental harm”, “direct and public incitement to commit Genocide”—are loosely drafted and potentially harmful to our interests is without foundation.
Words in a statute or treaty are not self-interpreting. They must be read in the context of other provisions and in the light of the legislative or drafting history. The hypothetical interpretations of the Genocide Convention advanced by the critics are invalidated by the language of the convention itself and by the records of the negotiation.
Thus, “in whole or in part” does not mean that the killing of a single individual, profoundly deplorable as any killing is, becomes genocides.10 As the negotiating history makes clear, substantial numbers must be involved, and for the definition of genocide to be satisfied the acts of homicide must be joined by a common intent to destroy the group. The understanding recommended by the Foreign Relations Committee to confirm this point is wholly consistent with the drafting history.
“Mental harm”, in turn, would not support propaganda charges of harassment of minority groups, as charged by some critics, 18 because mental harm becomes an element of genocide only when done with an intent to destroy a group. Moreover, as the negotiating history shows, this provision was inserted for the narrow purpose of prohibiting the permanent impairment of mental facilities, as through the forcible application of narcotic drugs. Once again, the understanding recommended by the Foreign Relations Committee is wholly consistent with the drafting history.
“Direct and public incitement to commit genocide does not cover constitutionally protected speech. It covers incitement which calls for the commission of mass murder, which is actionable under our Constitution as in other countries, As the Supreme Court declared in Brandenburg v. Ohio, 395 U.S. 444 (1969), "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is dirccted to inciting or producing imminent lawless action and is likely to incite or produce such action" (emphasis is added). In any case as was stated in Reid v. Covert, 354 U.S. 1 (1957), no treaty can override a provision of the Constitution, and there is no doubt that the legislation passed in implementing the Genocide Convention must be interpreted in accordance with the First Amendment.
7. The contention that ratification of the Genocide Convention would subject American citizens to trial before an international penal tribunal is without foundation. 20
Article VI of the convention provides that persons charged with genocide shall be tried “by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction”. This part of Article VI, perhaps regrettably, is a dead letter. No such international penal tribunal has been established, and there is no negotiation under way to create one. If such a tribunal were established, action by the Senate would be
10 This claim was made by Mr. Schweppe, 1971 Hearings at 61. 17 1971 Senate Report at 1, 6, 18. Robinson, supra note 11 at 63. 18 Mr. Deutsch, 1971 Hearings at 18-19, 33–34. 19 As charged ly Mr. Deutsch, 1971 Hearings at 45. 20 This contention is made by Mr. Deutsch. 1971 Hearings at 21, 40–45.
required, either in the form of advice and consent to ratification of a treaty or action on legislation, before the United States could accept its jurisdiction.
Finally, it should be underlined that the International Court of Justice has no criminal or penal jurisdiction and considers only cases involving states, not individuals. *1
8. The argument that the convention does not define genocide as having been committed "with the complicity of government” is no objection to ratification. 22
The convention is directed at “persons” whether they are “constitutionally responsible rulers, public officials or private individuals." Each government is committed under the convention to punish such persons. There is no reason why such individuals should not be held responsible for genocidal act, even without government complicity.
9. The argument that the Genocide Convention abolishes the defense of "superior orders” is without foundation.23
The convention says nothing about a possible defense of "superior orders”; but it is significant that the convention includes "intent" as an element of the crime of genocide. An authoritative review of the drafting history on this point summarizes the matter as follows:
“Ordinarily it would seem that no intent could be ascribed to persons merely fulfilling superior orders; intent implies initiative. However, superior orders would not be a justification in such cases where the guilty party was not only a tool of his superiors but participated in the "conspiracy to commit Genocide." Guilt could likewise be established in a case where, although acting under orders, the person was in a position to use his own initiative and thus act with the intent to destroy the group. The non-inclusion of a proviso relating to superior orders thus leaves the tribunals applying the Convention the freedom of interpreting it in accordance with the domestic legislation and the specific circumstances of the case." 24
10. The argument that the omission of “political" groups makes the Genocide Convention worthless is unpersuasive.25
It is inconsistent for those who criticize the convention on the grounds that it subjects the United States to too much interference in its domestic affairs to complain at the same time that it fails to cover “political groups". In any event, the absence of one kind of group from the convention is no reason not to protect the groups that are covered.
RATIFICATION OF THE CONVENTION WOULD BE IN OUR BEST INTERESTS
We find the objections against ratification of the Genocide Convention to be without substance. The arguments in favor of ratification, on the other hand, seem to us compelling.
Our adherence to the Genocide Convention can make a practical contribution to the long and difficult process of building a structure of international law based on principles of human dignity. It will put us in a better position to protest acts of genocide in other parts of the world and will enhance our influence in United Nations efforts to draft satisfactory human rights principles.
We do not say that our adherence to this convention will work miracles. It may not bring very dramatic benefits in the short run. Let us remember, however, that none of the great documents of human civilization produced instant morality-not even Magna Carta or our own Bill of Rights. The point is that they did shape history in the long run. We believe the same may be true of the Genocide Convention, if we only give it a chance.
GENOCIDE CONVENTION OUTLAWS REPUGNANT ACTION
The Genocide Convention outlaws action that is repugnant to the American people and to our constitutional philosophy. We should not decline to affirm our support for principles of international law and morality in which we believe. Our country was founded on a passionate concern for human liberty reflected
21 One of the exhibits submitted by Mr. Deutsch stated incorrectly that under the Genocide Convention the “U. N. World Court” would “hear cases of alleged incidents of physical or mental 'genocide' committed by individuals. The accused in such cases would not be protected by the Bill of Rights." 1971 Hearings at 50.
22 This argument is advanced by Mr. Deutsch, 1971 Hearings at 17-18, 30–31.
by the Bill of Rights and the Constitution. We believe that concern is very much alive today, as is reflected by the report of the Foreign Relations Committee supporting the convention. It is inconceivable that we should hesitate any longer in making an international commitment against mass murder. At a time when our commitment to human rights is being questioned by some of our own people and by others overseas, it is particularly important that we ratify a treaty so thoroughly consistent with our national purpose.
The CHAIRMAN. Thank you very much, Ambassador Gardner.
We have a vote on now, as I just heard the bells. I will try to continue the hearing until Senator Pell, who has left to vote, returns.
Mr. Bartell, why do you not proceed so that we can maximize the time we have together. Perhaps you would like to introduce your able colleague who is with you and then proceed with your statement. . STATEMENT OF ROBERT M. BARTELL, CHAIRMAN OF THE BOARD
OF POLICY, LIBERTY LOBBY, ACCOMPANIED BY TRISHA KATSON, WASHINGTON, D.C.
Mr. BARTELL. Thank you very much, Senator Percy.
This is Trisha Katson, my colleague at Liberty Lobby and the Spotlight.
I feel sort of like the Lone Ranger. I think in all fairness, I should point out that although we have opposed the Genocide Treaty for many years, the mere fact that it has been in the Senate for 32 years and has not been acted on favorably is eloquent testimony to the fact that we are not alone in our opposition.
Mr. Chairman, I have submitted to you a written record of my testimony and I will just summarize it, if I may, in the interest of time.
It will come as no surprise to Senator Proxmire and to you, of course, Mr. Chairman, that Liberty Lobby opposes ratification. As I have said, we have been fighting the treaty for many years. We are not about to give up now.
Our opposition to the treaty goes beyond the mere desire for the Senate to reject it. We would like for the treaty to be sent back to the U.N. from whence it came, and we would like it understood that the United States wants no part of this destructive treaty that threatens to undermine our Constitution, now or ever.
Last October Liberty Lobby published a white paper on the Genocide Convention which outlines the dangers the treaty presents to our constitutional form of government. I would like to ask that it be included with the hearing, with your permission.
The CHAIRMAN. It will be incorporated. Thank you.
Mr. BARTELL. The questions that Liberty Lobby and others throughout the years have raised about the problems inherent in the treaty, problems we feel have not been solved by the understandings or implementing legislation, nor will be, are serious and legitimate. Many supporters of the convention, when they state their views on why they favor the treaty, spend most of their time refuting charges made by the opposition. These proponents argue that it is embarrassing that the United States has not yet ratified it, that it is morally right that we do so, and that it will help our foreign policy.
They also cite cases of genocide that have occurred in the past. Now, genocide of course is a tragedy that none of us wishes had ever happened. We all wish it would never occur. But past incidents, as tragic
and senseless as they are, are they any reason to subvert the constitutional rights of U.S. citizens?
The answer to that question for most of us at Liberty Lobby and readers of the Spotlight is no, the United States does not need to sign the Genocide Convention to convince the world that it opposes genocide. Our history as a nation and a people is clear. The record speaks for itself.
We do not need to ratify a treaty that we feel will endanger our justice system to prove a point to the world, and we will not. That is a price we must never pay.
Although some 84 countries in the world have ratified the treaty, genocide of course continues.
The Spotlight interviewed the treaty's most vocal proponent, Senator Proxmire, on the treaty. And we feel, Mr. Chairman, that there is something terribly wrong with a treaty when its most staunch supporter says things like this about it:
While the treaty is not a perfect document, its many advantages far outweigh any imperfections there are possibilities of interpretation here that could raise problems for American citizens.
In response to the question of why the treaty has proved itself unable to prevent any acts of genocide that have occurred since 1946, Senator Proxmire said: “Yes, well, that is one difficulty."
Asked whether the treaty clarifies the difference between opposition forces and a national group to prevent U.S. servicemen from being prosecuted for war crimes, Senator Proxmire replied: "Well, you would be fighting a national group."
When asked to clarify whether he meant that the treaty does not differentiate between opposition forces and a national group, he said: “I said that if you are at war, the treaty would not apply.” Mr. Chairman, the treaty clearly states in article 1 that: "Genocide, whether committed in time of peace or in time of war, is a crime under international law."
Many readers of the Spotlight and Liberty Lobby and their board of policy members demonstrate involvement in their government by writing their legislators and sending these letters, as well as the responses, to us at headquarters. These letters encompass a broad range of issues including, of course, the treaty convention.
We have received many letters, particularly in the last few months, probably spurred by our white paper, from Liberty Lobby supporters. These letters have been written by several U.S. Senators, many of whom strongly oppose the treaty, and some of them are included in my written testimony.
Former Secretary of State William P. Rogers told this committee that the United States has ratified many treaties that provide that disputes relating to interpretation, application, or fulfillment of a treaty shall be referred to the International Court of Justice, a provision found in article 9 of the genocide convention. This means that the Court could decide that the President had incorrectly interpreted the treaty and that the Supreme Court and the Federal courts' power to adjudge the legislation enacted by Congress to implement the treaty's provisions was inadequate.