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these nations will sign the treaty and then regard it with only lip service.
This fact alone suggests the extent to which the U.S. Congress and the U.S. Constitution become subject to a higher decision making authority. It is clear that the Senate, for example, in ratifying the treaty would impose an obligation upon the House to pass legislation which the House may not wish to pass. The resolution of such an obligation can be only to the disadvantage of the system of international law or to our own constitutional system.
Mr. Chairman, there are so many questions which arise and which will be examined in great detail by this committee with regard to international obligations, the Constitution, and the separation of powers. These problems will be examined in detail, if not in this committee then on the Senate floor itself, if this treaty should come to the floor, and if it ever should become the pending business.
The Senator from North Carolina, I would say, intends as respectfully as he knows how to participate in such a detailed examination.
I thank the chairman.
Senator BoscHWITZ, Mr. Chairman, I find it absolutely shocking that the greatest democracy of the free world, the leader of the free world, finds it impossible to pass a treaty with respect to genocide, even though most of the nations of the world already have acted upon that treaty. Really, the only thing that stands in the way of passage of this, because a majority of the Senators certainly favor it, is the threat of a filibuster-and even after cloture is invoked that it will continue to be filibustered through procedural tactics.
It is absolutely shocking that the greatest democracy in the world, the leader of the free world, cannot bring itself to ratify the Genocide Convention.
When we think of the Armenians after World War I, the Jews after World War II, the Cambodians in more recent decades, the fact that we cannot ratify this treaty absolutely, in my judgment, brings shame upon our Nation.
We simply have to act and do everything that we can to bring about the end of genocide, to make sure that if it ever again occurs, that not only the press, but that we ourselves, bring it to the attention of the free world, of all of the world, in fact.
It is interesting to note that the genocide in Kampuchea probably got less public attention than some things which were within the range of the TV cameras.
We have to do what we can. We cannot fall back. We cannot deter in our efforts because of the threats of some Senators that this is going to be opposed on the floor. We already submit our sovereignty as a country in many regards. We submit it every day in the Senate. The will of the legislative process affects the people of our country.
I hope that we will go forward. I hope that we will make a test of it on the floor of the Senate. I hope that attention will be focused upon those people who oppose the idea of the Genocide Convention. One of the reasons I admire the Senator from Wisconsin so much is because not a day goes by without his reminding the country and the world
of the horrors that occurred in the past and the horrors that we can
The CHAIRMAN. Thank you, Senator BoschWITZ.
Senator DoDD. Mr. Chairman, this hearing opens another opportunity to erase a blemish on our Nation's otherwise excellent record as a defender of the dignity and the integrity of the human race.
I am a newcomer to this debate in the Senate and first I'd like to pay respect to the outstanding—though so far unfortunately unsuccessful-efforts you, Mr. Chairman, of Senators Proxmire, Pell, Javits, and others for the ratification of the Genocide Convention. Reviewing the 32-year-old record of the convention, I was deeply impressed by their dedication and their mastery of the issues involved,
A much less positive impression I gathered from the record was about the quality of the objections to the convention. True, every treaty has to be carefully examined to determine whether it serves our national interest, and whether it conforms to our Constitution and our national policies. I certainly do not question the motives of Senators who had reservations about one provision or another and wanted to probe carefully the prospective consequences of ratification. This was their duty as Senators. As a result, however, during these 32 years every single word in the convention has been examined and reexamined, and every serious objection to the convention has been answered over and over again. I have not seen single factual, wellreasoned paper lately in opposition to the convention.
This hearing will provide another opportunity for a point-by-point rebuttal of any ill-founded opposition. At this stage, let me just emphasize one very important point that has not been made quite clear during the previous hearings. It is the following: We are not talking about what will happen with innocent or guilty Americans abroad. The international community does not need our permission for the setting up of a process for the prevention and punishment of the crime of genocide. The Genocide Convention is existing international law for most of the world community and that includes all states of any significance with the exception of Communist China and the United States.
If an American is arrested anywhere in the 90 states that are parties to the convention for committing genocide he can be tried and punished perfectly legally in terms of international law, regardless of our ratification or nonratification. Whether he is charged lawfully or falsely, his situation would not be any worse in case of our ratification. Quite the contrary, only by virtue of our ratification would we gain any legal standing to intervene on his behalf and to try to gain his extradition to American jurisdiction. Our ratification has no bearing whatsoever on what happens abroad on the basis of the Genocide Convention, who is charged, who is convicted. By refusing to ratify, however, we deprive ourselves of the legal claim we would have for the extradition of an indicted American to the parallel American jurisdiction. Opponents of the ratification, therefore, are not helping but worsening the situation of an American who would be charged abroad, rightfully or falsely.
Mr. Chairman, I thought it very important to bring this out at the outset because one can easily get lost in the maze of the absurd claims
against the Genocide Convention. This convention would not obligate us to do almost anything that we would not do otherwise. It would add the weight of our international prestige and authority to the condemnation of those who regard mass murder as a legitimate or, at least, convenient means of settling internal or international disputes. It would gain us access to what happens to this convention in the future, how it is implemented, an important development where presently we have no word at all, as we are not a party to the convention itself. The convention is not self-executing, so it would be valid domestically only through carefully crafted implementing legislation by the U.S. Congress. Every kind of behavior included in the convention's definition of genocide is already punishable under American domestic law.
By not ratifying, we exclude ourselves from the community of civilized nations who declared unanimously that genocide is a crime under international law and that states are obligated to prevent and punish it. Such a determination is not alien to our Constitution, in fact, it was envisaged by the framers when they provided in article 1, section 8, clause 10, that: "The Congress shall have power * * * to define and punish * offenses against the law of nations.” What more essential “law of nations” could they have had in mind but the one protecting the bare existence of nations, racial, ethnic, and religious groups?
What strikes me the most in the arguments of those opponents of the convention who choose the role of protectors of our Constitution is how little faith they have in the strength of the Constitution and the soundness of our constitutional system. How ironic for them to assume our system would collapse under the burden of an obligation already assumed by 90 states around the globe, including all of our democratic allied friends.
Mr. Chairman, it is time for the Senate to end this procrastination. The very spirit and text of our Constitution and our profound belief in it mandates that we ratify the Genocide Convention.
The CHAIRMAN. Thank you, Senator Dodd.
The lines are drawn. I can only say, as chairman, that though Senator Helms and I disagree as to what the outcome ultimately will be in the Senate on this issue, we do not disagree, nor do I think our distinguished first and second witnesses will disagree, on the fact that once the chairman and ranking member of a committee decide to set a course, so far as the committee is concerned, there will be deliberation, due deliberation within this committee, and no member, I feel, will hold up this committee's acting and reporting on this treaty, up or down, for favorable or unfavorable action on the floor of the Senate.
I have decided that we should move ahead. I have the full concurrence of the ranking minority member and the majority of the committee. We intend to move ahead with this. The lines will be drawn in the committee as they will be drawn on the floor. I will do the best that I can see that this is not an exercise in futility. It is a very important issue, and I think its importance is evidenced by our distinguished first witness.
We are very pleased to have Senator Strom Thurmond with us today.
Senator Thurmond, we are pleased to receive your statement.
STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM
Senator THURMOND. Thank you very much.
Mr. Chairman, it appears that a majority of the Foreign Relations Committee probably will favor this treaty, as it has in past years. But I predict that the Senate will do as it has in past years, too, and not ratify the treaty.
There is good reason for this, and I want to present those reasons to you this morning.
Vietnam, over the past several years, reportedly has used poison gas in a large-scale attempt to exterminate several anticommunist tribal groups. On June 9, 1981, Vietnam became party to the Convention on the Prevention and Punishment of the Crime of Genocidethe Genocide Treaty.
The point is this: The Genocide Treaty, where it should restrain atrocity, is not observed; and where it would be observed, it is unnecessary. In the barbaric nations of the world, the treaty is given lip service. In our civilized free republic, the treaty would be followed to the letter and thus could harm irreparably the fabric of our constitutional system.
I welcome the opportunity to testify against the Genocide Treaty because, in my view, the time has come for the President to request the return of the treaty so that the Senate will not year after year face needlessly an issue which already has been effectively resolved and which is wasting the time of this institution to no good purpose whatsoever.
I have today written to the President to express that opinion, and I am hopeful that he will request the return of the treaty without further delay. Thirty-two years of Senate consideration is long enough.
In my view, the individuals who seek Senate consent to ratification of the Genocide Treaty do not understand the legal effect of such action in terms of the domestic law of the United States.
Unlike many other nations of the world, our Constitution provides that an international treaty shall become “the supreme law of the land” and shall have the status of supreme law for all purposes of domestic law-I repeat, domestic law-in binding the conduct of American citizens and the States.
In our federal system, a treaty does much more than simply to bind the international conduct of the Federal Government as a contracting state.
In the United States, the Genocide Treaty would become both an international contract between the United States and the other contracting states, and it would become binding domestic law, which immediately would supersede all law and practice inconsistent with the treaty.
The treaty, being later in time, would nullify all provisions of acts of Congress and of all prior treaties of the United States which were inconsistent with the provisions of the Genocide Convention.
Mr. Chairman, I am confident that virtually all Americans abhor even the thought of genocide. Every thoughtful American should, however, analyze the actual effect that the Convention would have
within the United States, if the Senate makes the error of consenting to its ratification and if the President'thereafter proceeds to ratify the treaty and thus causes it to become law.
Controversy surrounds almost all of the 19 separate articles of the convention. I will deal here with a few major points.
Article I states, and I quote:
“The contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”
Article IV provides, and I quote:
“Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals.”
I especially call your attention to the words "private individuals.” Article III specifies:
“The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide."
Mr. Chairman, questions concerning fundamental concepts naturally arise as a first issue.
The 1973 Senate Foreign Relations Committee report states that genocide would simply be added to a list of other agreements such as "the protection of submarine cables *** and antisocial conduct like slave trading.” That statement is a dangerous and erroneous oversimplification.
The Convention would create a series of new crimes as the supreme law of the United States. Under the Constitution, these new crimes would "be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."
Matters concerning fundamental criminal conduct involving murder or conspiracy to commit murder should be primarily a matter of State domestic jurisdiction—I repeat, State domestic jurisdiction. The use of the treatymaking power in this area is inappropriate. In effect, the Convention would continue the policy made possible by the Supreme Court in its decision in Missouri v. Holland, 252 U.S. 416, in which the court held that State powers could be transferred to the Federal Government through the treatymaking process as a de facto method of amending the Constitution.
Mr. Chairman, moreover, the Convention, if ratified, would nullify article II, paragraph 7, of the Charter of the United Nations, which expressly prohibits that organization from intervening in matters within the domestic jurisdiction of a country by the method of making treaties on domestic subjects within the jurisdiction of member countries and, in the case of the United States, within the jurisdiction of either the Federal Government or of individual sovereign States.
The treaty defines "genocide” as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such."
Insofar as the specified acts are already prohibited by law when done against individuals, it is novel to contend that the nature of