The Supreme Court ruled that "State law must yield when it is inconsistent with or impairs the policy or provisions of a treaty or of an international compact or agreement."

As pointed out by Senator Thurmond this morning, the United States v. Pink ruling has new meaning in the light of speculation that the United States could adopt the jurisdiction of an international penal tribunal by Executive order.

In Missouri v. Holland of 1920, the Court decided that the treaty involved was not limited by the 10th amendment, thus effectively overriding the Constitution. Justice Oliver Wendell Holmes pointed out the dangerous power of treaties: They are negotiated by the President and need only approval of the Senate, while State laws are required to be made pursuant to the Constitution.

To those aware of the danger, mere legal precedent of the type which has been reversed in the past and can be reversed at any time in the future is not sufficient protection for constitutional government.

Debate over the period of 32 years has demonstrated that the wording of the Genocide Convention is ambiguous, unclear, and subject to a wide variety of interpretation. In Connally v. General Constitution Company, 1935, the Supreme Court ruled:

A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

If anything is clear about the Genocide Convention, it is that it does not meet the standard of the Court in this ruling. This is a loud signal that the treaty is a peril to U.S. constitutional freedoms and should be put to permanent rest.

The arguments on the vagueness of certain words and terms, such as "a substantial part," "mental harm"-and I will refer to Ambassador Gardner's comment that article 2 says "intent to destroy in whole or in part a national, ethnic, racial or religious group as such." He ignores section B, which says, "causing serious bodily or mental harm." We do not know what "mental harm" is.

To go on, "direct and public incitement," and the exclusion of others "the complicity of government," for instance these are legion. I cannot enumerate all of them. Suffice it to say that the ABA's understandings and implementing legislation have not made things any clearer, particularly in view of their reversal of their stand.

This is the best of all possible times to get rid of the Genocide Convention for good. Jeffrey Gaynor noted in a study on the treaty in the "Journal of Social and Political Studies":

With general drift of opinion of international organizations away from constitutional law and the growing influence of the communist bloc nations, the genocide treaty will much more likely be used in the future for propaganda purposes against anti-communist countries than for serious efforts to curtail genuine genocidal actions in the world.

Nathaniel Webster once said the constitutional system of the U.S. "is the last hope of the world." We feel if the Senate ratifies this convention then that hope will fade.

Senator Jesse Helms of this committee said it quite well back in 1977:

While the nation of a treaty to prevent genocide has emotional appeal in the abstract, the difficulty of translating such prohibitions into workable law without doing violence to our system of justice has proved to be insurmountable.

Bill Moudy is a Spotlight reader from Denham Springs, La. We thought he put it very well in a letter to Senator Russell Long. He said:

I have read this proposed treaty very, very carefully and not only recognize its supposed lofty, humanitarian intent but am keenly aware of its danger to the sovereignty and the people of the United States. For other nations to have a say about the national affairs of the U.S. is a direct violation of the U.S. Constitution. We are not world citizens subject to world courts. We are U.S. citizens subject to the dictates and laws of our own sovereign nation. It is rank treason to abrogate the precepts and intents of the U.S. Constitution. It can be said no other way.

We therefore urge the rejection of the genocide convention. And I thank you for the opportunity to speak today.

[Mr. Bartell's prepared statement follows:]

PREPARED STATEMENT OF ROBERT M. BARTELL

Mr. Chairman and Members of the Committee, I am Robert M. Bartell, Chairman of the Board of Policy of Liberty Lobby. I appreciate this opportunity to appear today and present the views of our 30,000 member Board of Policy, as well as approximately a million readers of our weekly newspaper, The Spotlight.

Mr. Chairman, it will come as no surprise to Sen. Proxmire and a number of others present here today the Liberty Lobby opposes ratification of the Genocide Convention. We have been fighting this treaty for many years and we are not going to give up.

Liberty Lobby's opposition to the treaty goes beyond a mere desire for the Senate to reject it. We'd like for the treaty to be sent back to the UN, from whence it came, and we'd like it understood that the U.S. wants no part of this destructive treaty that threatens to undermine our Constitution-now or ever. As long as the treaty remains pending in the Senate Foreign Relations Committee, as it has for 32 years, it remains a peril to the liberties of Americans— and that is the important thing-far more important than its alleged therapeutic effect on our "image" overseas.

In October, Liberty Lobby published a White paper on the Genocide Convention, which outlines the dangers the treaty presents to our constitution form of government.

Mr. Chairman, 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, are serious and legitimate. The spirit in which they are raised is genuine and sincere. At this point, I submit for the hearing record the contents of Liberty Lobby's White Paper on the Genocide Convention and request its insertion therein.

Supporters of the Genocide Convention, when they state their views on why they favor the treaty, spend most of their time refuting charges made by their opposition. These proponents argue that it is embarrassing that the U.S. 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. Genocide, of course, is a tragedy that Liberty Lobby wishes could never occur. But are past incidents, as tragic and senseless as they are, any reason to subvert the constitutional rights of U.S. citizens?

The answer to the question from most of the readers of The Spotlight and members of Liberty Lobby's Board of Policy is "no." The U.S. does not need to sign the Genocide Convention to convince the world that it opposes genocide. Our history as a nation and as a people is clear; the record speaks for itself. We do not need to ratify a treaty that will endanger our justice system to prove a point to the world. And we will not. That is a price we will never pay.

Although 84 countries in the world have ratified the treaty, genocide continues. The late Sen. James Allen of Alabama put it very well when he wrote John Sparkman, the former chairman of this committee:

It is almost too obvious to say-but in an era of rampant terrorism throughout the world, during a nation-building epoch that has caused rivers of blood to flow, and in an era when the world's population continually teeters on the brink of mass annihilation and is held back from that chasm only through the strength of this nation-that a treaty as ambiguous, morally ineffectual and legally sus

pect in terms of our law, could matter one whit in the course of man's relations with his neighbors.

The Spotlight interviewed the Genocide Convention's most vocal proponent, Sen. William Proxmire (D-Wis.) on the treaty. Mr. Chairman, 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. Sen. 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, Proxmire replied, "Well, you would be fighting a national group." When asked to clarify whether he meant that the treaty doesn't 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 Art. I 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 Board of Policy members demonstrate involvement in their government by writing their legislators and sending these letters as well as responses to Liberty Lobby. These letters encompass a broad range of issues, including, of course, the Genocide 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 U.S. Senators.

Senator Proxmire told the Washington Post that the only opposition to the Genocide Convention is coming from "Liberty Lobby, the John Birch Society and other far-out groups of that sort." Perhaps Senator Proxmire is unaware of the opposition expressed by his own colleagues. To cite just a few of them: Sen. Lloyd Bentsen (D-Tex.) says:

I have great concern for the advancement of human rights and the curtailment of genocidal acts. However, I oppose ratification of the Genocide Treaty as presently written. I do not want U.S. citizens subjected to extradition to other nations that may never have known our constitutional guarantees. I certainly would not support any treaty that would sacrifice our national sovereignty.

Sen. Sam Hayakawa (R-Calif.) tells his constituents that he continues to have strong reservations about the Genocide Convention:

There seems to be several international interpretations of the treaty. As a result, countries can pick and choose which provisions of the treaty to adopt. Eighty-four countries, including all communist countries, have actually adopted the convention with such severe restrictions as to make it meaningless. Moreover, given the growth irresponsibility of many nations, I believe we will only see the treaty used for the purpose of propaganda. Sen. Barry Goldwater (R-Ariz.) says:

I cannot agree with the one-sided argument under which, as I interpret it, U.S. citizens will be subject to all kinds of charges and possible trials; but the monstrous crimes against humanity in communist nations will be free of punishment because they are labeled "political" activities outside the scope of the convention . . . (It's) too vague in its use of terms, such as "mental harm," "measures intended to prevent birth," and measures affecting "in part" a group. Under this language, a government act that injures a single individual could be called "genocide" against an entire group. I cannot support the convention the way it stands.

Sen. Dennis DeConcini (D-Ariz.) says:

The language of the treaty is extremely vague and encompasses more in its definition than what we commonly believe genocide to mean. It is conceivable that under the terms of the treaty, Idi Amin could arrest a U.S. citizen and charge him with complicity in genocide because the Chase Manhattan Bank has offices in South Africa. It is also possible that an American could be arrested abroad and charged with genocide because of the past treatment of blacks in this country.

These are just a few of the letters Liberty Lobby has received from concerned citizens, expressing the views of the U.S. senators they elected to office.

These citizens, and others like them, elected their representatives to office to serve their interests, and specifically to do one thing: to uphold and abide by

the U.S. Constitution. Is this being done? Do all members of Congress uphold the Constitution as they are sworn to do?

Many Americans don't think so. And they feel that the Genocide Convention is another example of this intolerable behavior. Another individual who doesn't think that members of Congress uphold the Constitution is Ron Paul, representative from Texas. He wrote one constituent that although members of Congress and the president are sworn to uphold the Constitution, virtually none of them do so, that this oath is broken almost every day.

Beyond this, many Americans believe that the Senate has unwisely ratified treaties the Panama Canal giveaway being the most recent example or will soon misguidedly ratify treaties-such as the Law of the Sea Treaty and the Genocide Convention-that are a part of the layering over of internationalism by possible dual loyalties. These are treaties that ostensibly improve our foreign relations with other nations, but which in reality contain provisions that damage rather than help the U.S.

And there is plenty of evidence to support this allegation. Genocide Convention supporters have used the admission that the Senate already has ratified treaties that will do some of the damaging things that some fear would occur with ratification of the Genocide Convention. This argument has been used on the matter of extradition of Americans to be tried by a foreign court. "U.S. citizens in the physical territory of a foreign nation can be charged and tried for any offense, from shoplifting, to murder, even genocide," Sen. Mark Hatfield (R-Oreg.) says. "The treaty would not aggravate this existing situation, increase the punishment, or further jeopardize U.S. citizens abroad." Ratification of the Convention will not "further jeopardize U.S. citizens abroad." So, he seems to be saying, it is ineffective, so why not ratify it? This is indeed a sad commentary on the actions of the U.S. Senate and a poor excuse to ratify a treaty.

But that's not the only negative consequence of the Genocide Convention that proponents argue exist in treaties that have already been ratified. As to the charge that the Genocide Convention would enable the UN to probe actions concerning the acts of public officials and individuals in the U.S. as an alleged violation of the treaty, an administration spokesman replied in hearing testimony that yes, this could happen, but it already can be done.

Former Secretary of State William P. Rogers told this committee that the U.S. 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 Art. IX of the Genocide Convention. This means that the court could decide that the president had incorrectly interpreted the treaty, that Congress, the Supreme Court and the federal courts' power to adjudge the legislation enacted by Congress to implement the treaty's provisions was inadequate.

As pointed out in our White Paper, this article would repeal the Connally Reservation, which is six key words inserted into the resolution accepting jurisdiction of the World Court in 1946. Because of it, the U.S. will not accept compulsory World Court jurisdiction in "matters which are essentially within the domestic jurisdiction of the United States as determined by the United States." Without the words "as determined by the United States," the World Court can make its own determinations on what is to be deemed domestic and foreign matters. And the U.S. would have to agree to any ruling made by the court. Art. 94 of the UN charter states that "Each member of the United Nations undertakes to comply with a decision of the International Court of Justice in any case to which it is a party."

Further, on the matter of extradition of U.S. citizens, the Special Committee on Peace and Law Through the UN of the American Bar Association declared, "There should be no implied approval or commitment for the creation of an international court for trials of American citizens for genocide."

But there is.

Genocide Convention supporters keep reminding us that in and of itself it is not an extradition treaty. But if the Senate ratifies the Genocide Convention, we would be obliged to provide for the extradition of U.S. citizens in a new or amended treaty. That is what Herbert Hansell, legal adviser for the State Department. told this committee four years ago. Hansell said. "At the present time genocide is not listed as an extraditable offense in any of our extradition treaties." For that to happen, he assures us, "We would have to negotiate a new or amend an existing extradition treaty."

"Would we be obliged to do that as a commitment?" former Senator Case asked. Hansell replied, "Yes, as a commitment."

For quite some time, former Sen. Sam Ervin, a noted and respected constitutional scholar, spoke out against the treaty and how its provisions violate many rights guaranteed by the Constitution. Time and time again he warned that the Genocide Convention would as a treaty become the law of the land and override many rights that U.S. citizens now enjoy. Ervin is no longer carrying the torch against the treaty, but his burning questions are just as relevant now as they were then.

A report submitted to this committee in support of the treaty-making powers of the U.S. in human rights matters, prepared by the Special Committee of Lawyers of the President's Commission for Observance of Human Rights Year 1968 (October, 1969) stated:

For the U.S.. problems of implementing human rights treaties have two dimensions: the nature of the implementation procedure provided for in treaties themselves, and the built-in implementation procedure peculiar to the U.S. arising out of the fact that its treaties are the supreme law of the land.

Genocide Convention supporters usually cite the 1957 Supreme Court case of Reid vs. Covert in which the court ruled that treaties did not overrule the Constitution. However, at various times in history, different rulings have been made on this issue and nothing prevents the Supreme Court from making a new ruling in the future that would again make treaties supreme over the Constitution. Even Senator Proxmire admits this possibility, although considering it remote.

There was enough doubt in the mind of former Sen. John Bricker (Ohio) to introduce an amendment to the Constitution to settle this issue once and for all. The amendment, which would have ensured the Constitution's supremacy over treaties, was defeated by a single vote in 1954, and the controversy remains. (Rep. John Ashbrook has introduced a similar measure in this Congress.) In U.S. vs. Pink (1942) a treaty was ruled to be the law of the land and executive agreements were given "similar dignity." The Supreme Court ruled that "state law must yield when it is inconsistent with, or impairs, the policy or provisions of a treaty or of an international compact or agreement." This U.S. vs. Pink ruling has new meaning in the light of speculation that the U.S. could adopt the jurisdiction of an international penal tribunal by executive order.

In Missouri vs. Holland (1920) the court decided that the treaty involved was not limited by the 10th Amendment, thus effectively overriding the Constitution. Justice Oliver Wendall Holmes pointed out the dangerous power of treaties: they are negotiated by the president and need only approval of the Senate while state laws are required to be made pursuant to the Constitution. To those aware of the potential danger, mere legal precedent of the type which has been reversed in the past and can be reversed at any time in the future is not sufficient protection for constitutional government.

Another consequence of the Genocide Convention that concerned Senator Ervin was the possibility that U.S. servicemen would be subject to trial for killing and/or wounding members of the military forces of our enemies during

war.

In 1969, Ben Miller of the American Bar Association (then opponents of the treaty) was afraid that U.S. servicemen could be charged with genocide by the North Vietnamese for fighting during the Vietnam war. "Would not the military strength of this nation and hence the nation itself be endangered if the Genocide Treaty were ratified?" This question is just as valid today as it was then. And although the ABA now supports the treaty, no words (original or added) change the concerns ABA voiced 12 years ago.

Many questions on this subject are unanswered. On the basis of Art. II, Sec. (a) of the Convention, the U.S. was widely accused of genocide against the Vietnamese people during the Vietnam war. If the U.S. were to ratify the treaty, wouldn't that make it easier for the enemies of our country to make others believe such accusations? If a similar situation occurs in the future and the U.S. has ratified the treaty, won't any accused servicemen then be subject to conviction?

Debate over the period of 32 years has demonstrated that the wording of the Genocide Convention is ambiguous, unclear and subject to a wide variety of interpretation. In Connally vs. General Constitution Co. (1925) the Supreme Court ruled: