The CHAIRMAN. What is the agreement that was reached between the United States and the Soviet Union with regard to jurisdiction of the World Court?

Mr. SOFAER. We reached agreement on a working paper of a set of procedures and practices. That working paper has been approved by the foreign ministers of both countries, and now is being discussed among the legal advisors of the five permanent members.

We have had one meeting, Mr. Chairman, and we are having our second meeting next month. The process is going forward in a constructive and mutually agreeable manner.

The CHAIRMAN. Thank you very much.

I would turn next to Senator Helms.

Senator HELMS. Mr. Chairman, these are two fine gentlemen. Judge Sofaer and I are friends. We have agreed to disagree agreeably from time to time. But he is a distinguished man and so is Mr. Richard.

They have testified effectively, but it just occurs to me that this is such a complicated subject that I hope this committee will not just have a hearing for the purpose of a hearing and then move along assuming everything is going to be all right.

For example, Mr. Chairman, I hope that we will have at least two other spokesmen for the administration, which, surprising to me, are not here this morning-Mr. Schifter, the Assistant Secretary of State of Human Rights; and Mr. Bolton, the Assistant Secretary of State for International Organizations.

Surely they must have some input in this thing.

I do not want to give short shrift to the complications of this. And I am going to get into a question or so, and 10 minutes is not much time to develop a line of questioning, as any lawyer knows. And I brag about not being a lawyer.

Let me start by asking if the genocide convention, as approved by Congress, is OK? Do you like that?

Mr. SOFAER. We were gratified and relieved, among other things, Senator Helms, when the genocide convention was finally approved.

Senator HELMS. And you could have had it approved years earlier if there had not been so much opposition to protecting the sovereignty of the United States.

Sam Ervin was arguing that, long before I lost my mind and ran for the Senate in 1972. And he stuck by the concept of sovereignty, sovereignty, sovereignty.

I think this is one reason that Sam got out of the ABA, because they had to be dragged, kicking and screaming, into agreeing that a sovereignty clause had to be in the Genocide Treaty. Sam won his point, but he was already dead by that time. But I tried to pick up where he left off.

And I tell you, you better check with the ABA and say, well, how much hell do we want to take on this thing? Will you agree to a sovereignty clause? You do not have one in here, do you?

Mr. SOFAER. No; Senator, we do not think it is necessary.

Senator HELMS. OK.

Let me just throw out a hypothetical question that was posed to me yesterday. I ask this just to see how this convention would work as is, with no further reservations.

Now let us suppose that the defense minister for Israel were to come to the United States, and the U.S. Government receives a request from the Yemen Democratic Republic, which is a ratifying party to this convention, right?

Mr. SOFAER. I believe so.

Senator HELMS. So Yemen says, arrest that defense minister, the charge being that the defense minister had authorized torture of Palestinians by the Israeli defense force in Judea and Samaria, which is the West Bank and Gaza.

Now South Yemen requests his extradition from the United States. And the convention, as I read it, as it now stands, requires that all ratifying parties must extradite or prosecute, one or the other, is that right?

Mr. SOFAER. Yes, Senator, but only in accordance with their own rules, including their evidentiary rules and the other procedural due process rules.

Senator HELMS. Well, what due process would you have?

Mr. SOFAER. We also have to have an extradition treaty. You have to have probable cause before you arrest anyone in the United States.

Senator HELMS. I understand that.

Mr. RICHARD. If I may, Senator. The process, as I see it on such a complaint, is the U.S. obviously would have to determine that there was an applicable extradition treaty.

In the case of Yemen, if my recollection serves me correctly, there is no treaty, so we could not, even if we were satisfied that there was sufficient evidentiary basis for an extradition, extradite absent an extradition treaty.

That would not end our obligation, though, under the convention, as I appreciate it. With the appropriate implementation of the provisions, we would still have the option, if the evidence was available, to prosecute this would-be torturer. And that would have to be decided on an evidentiary basis by our prosecuting authorities. That is the process.

Senator HELMS. Decided by whom?

Mr. RICHARD. By the Department of Justice in the normal course of its prosecutive activities, consistent with the criminal statutes that would be enacted implementing the relevant provisions of this convention, which call for universal jurisdiction.

Senator HELMS. Well, admittedly, my question was hypothetical, as I stated. But there are scores of questions that we need to analyze carefully, which were in fact analyzed over a period of 35 years by the United States Senate, with respect to the Genocide Treaty.

Let me ask you for openers, you said you have been working with the committee staff. One of you said that, and I do not believe that is accurate. You have sent my staff some papers, but have you sat down and said, what do you think about this?

Mr. SOFAER. Well, certainly, Senator, we have and we would. We have never hesitated.

Senator HELMS. Have you ever asked for or suggested a meeting? Mr. SOFAER. I am sure that we have, Senator.

Senator HELMS. Let me suggest that your people get in touch with our people.

Mr. SOFAER. Certainly.

Senator HELMS. And sit down and work on some of these things. Mr. SOFAER. Could I just say that the treaty makes very clear, Senator, that it is U.S. law and U.S. practice that will govern the practice of determining whether someone is subject to arrest, or subject to prosecution, or subject to extradition, or any other remedy.

The treaty clearly states that when the state party, under its law and procedures, decides that something needs to be done, it is done. And of course, if there is an individual, even from an ally, who engages, and there is probable cause to believe that he did engage in torture, under our system, that would be entirely appropriate that the person be taken into custody.

Senator HELMS. I do not want to lose my train of thought here. Let me read you something. One of the reservations submitted reads: "The United States does not consider itself bound by article 3 insofar as it conflicts with the obligations of the United States towards states not party to the convention under the bilateral extradition treaties with such states."

Why did you delete that?

Mr. SOFAER. Because it was unnecessary, Senator. It clearly would be the practice. We could confirm that. The Department of Justice could confirm that.

Senator HELMS. Well, I have got your reason for deleting it right here. You say, and I do not believe this, you may believe it but I do not believe it. Here is your explanation for deletion: Upon further reflection, this provision was deemed unnecessary because it could be construed to indicate that the U.S. was retaining, insofar as it relates to non-parties, the judicial right to send a person back to a country where that person would be tortured. And such was never the intent.

Well, my time is up.

Mr. Chairman, let me ask you, would you be willing in a future hearing on this to have Mr. Schifter and Mr. Bolton to come up. The CHAIRMAN. My understanding is this hearing is being held at the request of the administration, the administration sent Judge Sofaer and Mr. Richard here to speak to us.

Senator HELMS. Well, we are not limited to whoever the administration wants up here. The committee has some say so about who we want to have up here.

Mr. SOFAER. I just want to make it clear, Senator Helms, that Assistant Secretary Schifter or Assistant Secretary Bolton-it would have been perfectly appropriate for them to be here. They were of fered an opportunity to be here, and they asked me to represent the Department. They asked me to represent the Department; and that is why I am here for them.

And they have reviewed and concur in the position that the administration has taken here today.

The CHAIRMAN. Thank you very much.

Senator Murkowski.

Senator MURKOWSKI. Thank you, Mr. Chairman. I will be very brief.

I gather that there are 72 signatories in that area and some 50 nations have already ratified this documentation. And we have requested the most exceptions or reservations, is that correct?

Mr. SOFAER. That is correct, Senator.

Senator MURKOWSKI. Now, since the administration is proposing that this be ratified subject to these reservations, what is likely to be the situation if we prevail with regard to the rest of the nations?

Will they go back and alter or put an addendum on the ratifications already taking place? Or are we just seeking ultimately a special set of circumstances for the United States as a condition for ratification?

Mr. SOFAER. They would have the right under the treaty to respond within a certain period to any reservation, understanding or declaration that we made. And some of them might. But we are not concerned with that.

We do not think that any of the reservations or understandings would cause any response by any of the states party that would negate the basic applications of the convention.

Senator MURKOWSKI. Nor would it, in your professional opinion, make it, because of our reservations, less effective, to the point that other countries would lose interest in the basic principle of developing a convention against torture?

Mr. SOFAER. Oh, definitely not, Senator. I think that our reservations-some of them are positively helpful. The definitional reservations and understandings I believe will be helpful over the long

run.

Senator MURKOWSKI. We have seen some conservative elements, who, from the standpoint of balance, have a concern with any world government or world dictate over the United States that would be contrary to our Constitution.

Do you feel in this set of reservations that we have given ourselves adequate protection and that those that are concerned about those nuances are seeing their concerns adequately addressed?

Mr. SOFAER. Yes; Senator. Obviously there might be additional concerns that we have not thought of. We just sent one up, a capital punishment understanding. In the State Department, and in the administration, in fact, we believe international law does not prohibit the imposition of capital punishment. However, some individuals and groups in the administration strongly believe that this understanding could not hurt, and it might avoid problems in the future.

There are, if you will permit, Senator, some decisions from international courts, human rights courts in particular, which we think are wrong. The decision in the Soering case which claimed it was cruel, unusual and inhumane treatment to have a prisoner waiting in death row for several years is just unreasonable, we believe, and we do not adhere to it, and we will never adhere to it.

Here is a man who stayed on death row for 7 years or something like that because our due process system gave him a chance to appeal his conviction. So, we think that there might be occasion for reservations or understandings that we have not thought of. But, as of now, the ones that we have proposed we believe are adequate to protect the sovereignty of the United States.

Senator MURKOWSKI. If the United States goes ahead and adopts the recommendations currently before us, what is the time frame when this will all come into a formal convention under United Nations?

Mr. SOFAER. We would then prepare legislation.

Mr. RICHARD. It is my understanding that the convention is already in effect. There have been a sufficient number of signatories! to bring the convention into effect.

We would hope to have prepared and submitted to Congress in a very short time after the Senate acts appropriate implementing legislation and once the legislation is passed, we would then deposit our instrument of ratification.

Senator MURKOWSKI. I want to make sure I understand you. The inference is that we do have a U.N. convention currently, but the 50 or so nations that have ratified it are participants in an ongoing convention that is in effect now.

Mr. SOFAER. Yes.

Senator MURKOWSKI. The 72 nations or the other 22 are in the same position as the United States, then, in the process of ratifying. Are we a signatory?

Mr. SOFAER. We are a signatory, yes.

Senator MURKOWSKI. But we have not ratified?

Mr. SOFAER. We have not ratified, not yet.

Senator MURKOWSKI. So, we would just become a party to, upon legislative action?

Mr. SOFAER. Right, because we do not want to submit our instruments of ratification until the Congress has adopted the legislation we need to implement this.

Senator MURKOWSKI. Thank you.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you very much. I have no further questions. At this point I would turn to Senator Helms to see if he has any more.

Senator HELMS. I want to ask a few questions which are intended simply to illustrate what I think to be the weaknesses of this proposed convention. These were inherent in the genocide treaty as well. These are the kind of questions that Sam Ervin raised. Admittedly, he said he was just a country lawyer, but I thought he was a pretty good one.

We do have a crime of torture in the U.S. Code, do we not?

Mr. RICHARD. There is no specific torture statute. There are a variety of criminal statutes, both at the Federal and State levels, that would address that conduct which we are referring to as torture, whether it be in terms of assaults, civil rights statutes, and the like. So, we have adequate statutes, criminal statutes, to reach the conduct, sir.

Senator HELMS. And that would be the basis on which we would try or extradite alleged offenders, is that right?

Mr. RICHARD. Well, there is an area of coverage mandated by the convention in which we do not have existing legislation, and that relates to, among other things, activities by U.S. nationals abroad. We would not currently have jurisdiction over those activities, and the convention would mandate that we create jurisdiction. Likewise, we have no present jurisdiction over alleged torturous acts