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tions, and I hope, in submitting these, that you will take them seriously.1
Mr. ABRAMS. We will.
Mr. YATRON. Thank you, Mr. Leach.
Mr. Secretary, we want to thank you very much for being here today, and we thank Mr. Conrow for accompanying you here.
Mr. ABRAMS. Thank you, Mr. Chairman.
Mr. YATRON. Our next two witnesses are distinguished legal scholars, who also have practical experience in dealing with human rights issues.
Mr. Clyde Ferguson, Henry L. Stimson Professor of Law at Harvard University, has served at the United Nations. He was also U.S. Ambassador to Uganda.
Mr. Stephen B. Cohen is associate professor of law at Georgetown University Law Center. He served as Deputy Assistant Secretary of State for Human Rights from 1978 to 1980.
We would appreciate our next two witnesses testifying as a panel. After each of you testifies, the subcommittee members will have an opportunity to ask questions.
Mr. Ferguson, you may lead off with your opening statement, and then we will go to Professor Cohen.
STATEMENT OF C. CLYDE FERGUSON, HENRY L. STIMSON PROFESSOR OF LAW, HARVARD UNIVERSITY SCHOOL OF LAW; FORMER U.S. REPRESENTATIVE TO THE U.N. ECONOMIC AND SOCIAL COUNCIL; U.S. ALTERNATE REPRESENTATIVE TO THE 28th SESSION OF THE U.N. GENERAL ASSEMBLY; DEPUTY ASSISTANT SECRETARY OF STATE FOR AFRICAN AFFAIRS
Mr. FERGUSON. Thank you very much, Mr. Chairman, and Mr. Leach.
I must apologize to you because my statement is late. Cambridge is a long way from here, and it will be here by 4 o'clock.
I wanted to comment on two principal matters. First, I should say that I think it would be a mistake to attempt to remedy the problem which we all agree is there by striking the word consistent from the formula. Second, the real problem is not a legislative problem. The real problem, which Mr. Cohen has addressed in a brilliant article of his, is the nature of the bureaucracy in the State Department itself. No legislation is going to cure that bureaucratic problem.
In a sense, the problem is in the regional bureaus in the State Department. Being a veteran of one of the regional bureaus, the African Bureau, I am well aware that in the back of the mind of every officer in the regional bureau is first of all to keep the Embassy open. That means that you don't irritate unduly the Government by publicly indicating that they are gross violators.
In the Carter administration, which many hold up as a paragon of virtue in this area, I am informed, not being a member of that administration, that they never put on a piece of paper the name of the country that was considered to be a gross violator. The deci
1 See p. 190.
2 Mr. Ferguson passed away a short time after the hearing and did not have an opportunity to revise his remarks.
sion was such that you did not know that if aid were withheld, as there were cases in the Carter administration, that the real reason for that was section 502B.
The second thing which demonstrates the bureaucratic problem is the very legislative history of section 502B itself. It started out as section 32 of the act of 1973, which was phrased in terms of a Sense of Congress, nonbinding legislation.
It was absolutely certain at that stage that, one, there was complete opposition to the notion of considering human rights as a part of foreign policy on the part of then Secretary of State Kissinger. He reprimanded personally two ambassadors, who had the temerity to raise it in discussions of relations with other countries in the U.N. and in Chile. Ambassador Popper was reprimanded for reminding the Chilean Government, the Foreign Minister and the President, that it had an international obligation that it had undertaken in voting for the Universal Declaration of Human Rights and ratifying the two covenants on the human rights.
In New York, at the U.S. Mission to the U.N., I was reprimanded for raising the issue of human rights out of the context of the Third Committee, which was a do-gooder committee, but raising it in the issue of Security and International Organizations. So we face the fact that the particular views, the real political views and fundamental disagreement that this should be a part of our foreign policy.
The second aspect that Mr. Cohen has dealt with extensively in his recent article in the American Journal of International Law is the bureaucratic problem with the regional bureaus, which was explicit in the Carter administration, and in which the regional bureaus squared off against the bureau dealing with human rights and humanitarian affairs. The bureau, under Patt Derian, did not always win. That is a fact of life and problem which a change in language is not going to remedy. In that sense, I do agree with part of Mr. Abrams' statement that we will have different standards, and that that in itself becomes a kind of source of continuing the metaphor of debate, when in fact the problem is the bureaucracy in the State Department. In fact, the more general problem is that the Executive has never wanted Congress to direct foreign policy. The current debate in the other House about the War Powers Act is simply of the same structure.
We can see that in the language, when we started out in 1973 with the Sense of Congress, and Mr. Ingersoll, then an Assistant Secretary of State, came to this very room and said that the administration had no intention whatsoever of paying any attention to that Sense of Congress Resolution.
We then got it changed, Congressman Fraser attempted to make it a binding obligation in section 502B, and President Ford vetoed that legislation for the reason that Congress was purporting to tell them what to do about human rights. The compromise was that it is a policy of the United States, and that was just as effective as a Sense of Congress until eventually we got the current language, again mainly at the behest of Congressman Fraser, dealing with using the formula of consistent pattern of gross violations of internationally recognized human rights. In that sense, I don't think this will cure at all the problem.
What do I think is the cure? More rigorous oversight is obviously the cure.
In fact, to conclude this, I will say that at the time of the original legislation, I was then in the State Department, but for reasons that I will allude to very briefly in a moment, the language of the formula is my own personal creation. The committee asked if I would testify on what it meant. I was told, no, the State Department would not make me available to come in.
As a result, since I obviously talked with Congressman Fraser, the language got in there but there is practically no legislative history indicating what was intended in 1967 with this phrase in a U.Ñ. body, which was a subcommission on human rights. There was a very definite intent with a very precise definition, with very definite, certain countries in mind as fitting that definition.
The United Nations itself, in using this phraseology, which comes out of the struggle from 1963 to 1967 to make the U.N. more effective in connection with two items on the agenda of the Human Rights Commission, established an absolutely long track record of what is a violation, which I am sure the State Department has someplace in their files.
The problem of what is consistent, which does have a time element, has nothing to do with whether or not there are more or less violations, which will become apparent when there is a response to Mr. Leach's request of countries.
Of the first three countries that were found under this formula to have gross violations, one, strangely enough, was Tanzania in the so-called Persian Pride cases, in which about the only violation of a human right was forced marriages by Iranian girls to the local Arab community on the Island of Zanzibar. If you use the current interpretation of this language by the State Department, we would never have gotten to Tanzania.
The second country that was first named was Greece under the Colonels for torture, and that will be instructive as to what consistent is, what a pattern is, and what a gross violation is.
The third of this first group of three countries was Haiti at the time when Papa Doc's Ton-ton Macoutes was running wild on the island.
Since then everybody knows that the country that was the A No. 1 target was South Africa as, obviously, an explication of what the formula meant. In current developments, there have been two countries which have been cited.
Chile after Allende, in which the United Nations decided to have a commission of inquiry, which Chile first agreed to and then decided to cancel, and wouldn't let the people in the airport. When the commission went outside of Chile and made findings that Chile was a gross violator, they were then criticized by Chile and certain other Western countries, one of which was the United States, for not getting to the evidence directly, rather than using a lot of hearsay from outside of the country.
The other country that has been named has been Israel as a gross violator of the rights of the Arabs in the occupied Arab land, particularly the West Bank. Again, we repeated the same thing of attempting to get a commission of inquiry, and Israel refused to co
operate. Then the commission finding was criticized because they got biased testimony outside of the country.
As Mr. Abrams has alluded, it has become too politicized that maybe one has to discount the precedential value. It is quite true that never has there been, with one exception, any U.N. inquiry into an Eastern European country, the one exception, of course, was Poland with ILO and the Human Rights Commission deciding that there was prima facie evidence that there had been gross violation.
In conclusion, I would say simply, for the reasons I have set forth, the problem is not a legislative problem. The problem is in the bureaucracy for a double set of reasons. If I thought that it would help, I would more than be willing to support any change. The definition that is in section 502B relates to the human rights, namely, torture, detention, outrageous conduct, et cetera. Even though it is preceded by a word saying "including," and then the naming of those, Congressman Fraser who originated the formula here said those were exclusive definitions, and they did not include other violations that are specified in the Universal Declaration.
There are, for the reasons that I stated, no congressional guidelines as to what is consistent, what is a pattern, what is a violation, what is a gross violation. It may be that the best thing that can be done would be a revision of the language, and for Congress to indicate the intent it has. I think the Executive well knows what the intent was, but they disagree with that intent.
Thank you, Mr. Chairman.
[Mr. Ferguson's prepared statement follows:]
PREPARED STATEMENT OF C. CLYDE FERGUSON, JR., STIMSON PROFESSOR OF LAW, HARVARD LAW SCHOOL
First let me express my appreciation for your invitation to appear before this Committee after an absence of ten years. My formal submission will be very brief.
I have been asked to comment upon the origin and understanding of the meaning of the phrase "consistent pattern of violations of human rights and fundamental freedoms."
In 1967, the Economic and Social Council of the United Nations authorized the U.N. Commission on Human Rights, "in appropriate cases and after careful consideration of the information thus made available to it ... to make a thorough study of situations which reveal a consistent pattern of violations of human rights, as exemplified by the policy of apartheid as practiced in the Republic of South Africa and in the territory of South West Africa under the direct responsibility of the U.N. and now illegally occupied by the Government of the Republic of South Africa, and social discrimination as practiced notably in Southern Rhodesia," and report, with recommendations thereon, to the Economic and Social Council.