THE GENOCIDE CONVENTION THURSDAY, DECEMBER 3, 1981 UNITED STATES SENATE, COMMITTEE ON FOREIGN RELATIONS, Washington, D.C. The committee met, pursuant to notice, at 10:06 a.m., in room 4221, Dirksen Senate Office Building, Hon. Charles H. Percy (chairman of the committee) presiding. Present: Senators Percy, Helms, Boschwitz, Pell, and Dodd. The CHAIRMAN. This morning, the Committee on Foreign Relations will review the status of the International Convention on the Prevention and Punishment of the Crime of Genocide and the arguments for and against its ratification. The Genocide Convention has been before the Senate for 32 years and has been reported favorably by this committee no less than four times. This morning's hearings mark the 11th day since 1950 that this committee has convened to hear public testimony on the Convention. Yet it has been debated in the Senate at length only once, in 1974, when two attempts to break a filibuster mustered 55 votes, a majority of the Senate, but not the two-thirds that would be required for Senate approval. Since that time, the principal organization opposing ratification, the American Bar Association, reversed its position and now strongly supports ratification. We will be hearing from the ABA later this morning. I am very pleased to indicate that, in addition to the distinguished Senators that we have with us this morning to start this hearing-who will be appearing on both sides of the issue-Senator Javits, our former colleague and the former ranking member of this committee, also will be here at around 11:30 to testify. Speaking for myself because this is not the kind of issue that sometimes we have when we hear an issue for the first time-I have participated in debates on this issue before, and my position on this treaty is reasonably well known. It has been publicized one way or the other, favorably and unfavorably, depending on the writer's point of view. I support ratification of the Genocide Convention, as I have ever since coming to the Senate 15 years ago. It remains today what it was at the time of its original negotiation: an important statement by the nations of the world that those who would perpetrate the unspeakable crime of trying to exterminate a national, ethnic, racial, or religious group must not be allowed sanctuary anywhere in the world. Yet, the significance of this convention is not merely symbolic. It forms part of a general network of treaties which declare certain ac (1) tions to be international crimes, justifying concerted action by all countries to bring the perpetrators to trial. However new and untried this concept may have seemed to the Senate in 1949, there is nothing radical or unusual about it today. Just last summer, the Senate approved by a vote of 98 to 0 two treaties which provide for just such international action, the first against those who take hostages for political purposes, and the second against those who divert nuclear materials for unauthorized use. Another such treaty directed against those who seize diplomats for political purposes provided an important basis for our case against the Government of Iran, and added to the wide condemnation of the ayatollah's government by the rest of the world for the holding of American hostages. If we can agree to condemn and seek to punish such violators of international law, why should we not agree to treat the perpetrators of genocide in the same manner? In short, I think the Senate's original concerns and hesitations about the Genocide Convention have not stood the test of time. They were raised in the course of debate about the treaty power and about the authority of the Federal Government, which long since have been resolved. Most of the arguments which are made against ratification are either outdated, misinformed, or based upon farfetched interpretations of the treaty's provisions. The remaining arguments are simply not persuasive to me, nor do I think they would be to most Americans. Ratification by the United States may be a very small step in the scheme of things, but it does no credit to a great nation like the United States to hesitate in taking a small step forward for reasons which are not sustained by a serious consideration of American interests in the world. Clearly, the ultimate prospects for ratification of this convention will depend in large part on the position taken by the Reagan administration. During his recent confirmation hearing, the new Assistant Secretary of State for Human Rights and Humanitarian Affairs, Elliot Abrams, indicated that the administration had only just begun its review of this treaty. He expressed some initial and positive personal views on ratification of the Genocide Convention, which I hope will be widely shared in the rest of the Government. I hope the committee's hearing this morning will assist in that process. It is my present intention to await the outcome of the administration's review before considering further action in the committee, provided that a reasonable time, and only a reasonable time, is taken by the administration in this regard. Our first witness this morning is my esteemed colleague, the President pro tem of the Senate, the chairman of the Senate Judiciary Committee, Strom Thurmond of South Carolina, and my seatmate. We don't always agree as we sit alongside each other, as we probably will not agree this morning. But when we take into account that the Åmerican Bar Association, a highly respected organization, up until recently opposed this treaty, and had many reasons which it gave for that opposition, now has reversed its position, we know that good men are on both sides of this issue. This is not a clear-cut issue. The purpose of this committee's hearing is to give open hearing to those people for 1 whom we have great respect, who have strong convictions on one side or another of the issue. Senator Pell, do you have a statement that you would like to make? Senator PELL. Thank you, Mr. Chairman, I do have a statement. I thank you and our colleagues for holding this hearing which, as you pointed out, is the 11th public hearing conducted by our committee on this convention since it was submitted in 1949. I know that I personally have voted on five separate occasions with a majority of our committee to report the convention to the floor of the Senate. But, for a variety of reasons, the Senate never has been able to vote on this issue. I guess, too, this cause, this issue, has a rather personal meaning for me because my father, Herbert Pell, was Chairman of the United States Delegation to the United Nations War Crimes Commission. There he took a very hard line with regard to the crime that we now call "genocide." Incidentally, "genocide" is a term that was coined by Raphael Lemkin after the war, during the early days when people were interested in this dreadful problem, having seen a race almost exterminated, and having seen the world do almost nothing about it. There was no name for this phenomenon, and at this hearing I think it is proper to pay proper tribute to Raphael Lemkin, the person who illuminated and secured common acceptance for the term "genocide," which was a crime so horrible that it had not had a term applied to it previously. Because of my father's strong view that genocide should be considered a war crime, and because of the State Department's opposition to it at the time, because it was ex post facto, he lost his job. He offered to pay for the mission himself in London. In one way or another, he was fired from it, but he secured public support, and a few days later the administration turned around and said yes, genocide would be considered a war crime by the U.S. Government. So, I have a personal interest in this. While my father has long been gone, I consider that one of the missions he would like to have seen accomplished was the fulfillment of the work of the United Nations War Crimes Commission performed in London at the end of World War II. The rest of the world behaved like ostriches, holding their heads in the sand, not wanting to see the horrors that were going on in the German concentration camps. I think today's hearing is a good idea, and I would hope that by hearing both the pros and cons of this treaty we could move ahead toward ratification. As we do so, I think we should pay some silent tribute to Raphael Lemkin, who added so much to this whole cause. Thank you, Mr. Chairman. The CHAIRMAN. Thank you, Senator Pell. Just so that we do not give the impression that the Senate Foreign Relations Committee, its members having given two statements in favor of the treaty, is unified in its viewpoint, and is not a reflection of the difference of opinion that is held in the Senate, we will have an opening statement from Senator Helms, who may give a different impression than Senator Pell and I gave. Senator HELMS. Thank you, Mr. Chairman. What you have said in a delicate way, in your customary, gentle way, is that I am about to be the party-pooper here this morning. The truth is that what we are doing, as Sam Ervin puts it, is resurrecting an issue, a treaty, a consideration that long has been discredited, and that never has accumulated enough support in the U.S. Senate for ratification since it was signed in 1948. It won't be ratified this time either. If you are contemplating that we will get 55 votes on cloture this time, I think you are overestimating the situation. This hearing is an exercise in futility and a waste of time in terms of what I perceive to be any chance that this unwise Genocide Treaty will be ratified. Now I say this with all due respect to my colleagues and to the ladies and gentlemen of the American Bar Association. And I do hope to welcome the Bar Association home as a prodigal child, returning to the point of wisdom on this and some other matters. The very fact that more than three decades have passed since the treaty was signed has given us an opportunity to look at it in the light of entirely changed conditions and with greater experience in the development of international law and cooperation. I believe that such a review easily will demonstrate what great folly it would have been to have ratified this so-called Genocide Treaty in 1948, and what supreme folly it would be to do so now. Mr. Chairman, what this proposed treaty does is to create an entirely new theory of international law. Criminal law always has been a matter of purely domestic concern, and in using the word "concern," let me emphasize that I use it in purely a legal and technical sense and not in the humanitarian sense. All of us, of course-all of us- -are concerned in a human way about violations of fundamental human rights in other nations. But legally we are incompetent to do anything about it unless we wish to alter the most cherished premise of international relations, namely, the sovereign independence of nations. If, by an act of our sovereign will, we submit our sovereignty henceforth to the will of the international community, we diminish our own Nation and the loyalty which we as citizens owe to that Nation. Criminal law goes to the very essence of security of a nation, unlike matters of purely international concern. If we allow the humanitarian sense of the word "concern" to cloud our judgment about the distinction between domestic and international jurisdiction, then we are disloyal to our Constitution and to our country. I think that is the reason for the widespread and deep antagonism which American citizens feel toward the Genocide Treaty when its implications are explained to them. I think that as Americans we sense a feeling of hostility toward our own notions of justice and equity. These are manifest in so many ways in our international relations. We have a unique development of legal history, the result of our traditions, our religions, our moral and our ethical values, and our experiences. This Senator simply cannot see justification for submitting this tradition to the judgment of the world. It is noteworthy that the treaty imposes an obligation upon its adherents to pass implementing legislation to fulfill its purposes, and it is going to be interesting to see how that applies to the violent nations of this world. We will see whether 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 decisionmaking 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. The CHAIRMAN. Thank you very much, indeed, Senator Helms. 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 |