APPENDIX THE SECRETARY OF STATE, Washington, D.C., April 12, 1971. Hon. FRANK CHURCH, DEAR FRANK: Thank you for your letter of March 24 concerning the Genocide Convention. I am pleased to enclose, for possible use by the Foreign Relations Committee, a point-by-point rebuttal to Senator Ervin's arguments, which was prepared by my staff in consultation with the Department of Justice. For your convenience, each of the points made in Senator Ervin's "Summary of Objections to the Genocide Treaty" is listed with the rebuttal to it immediately following. I have been aware of and appreciate your well considered and strenuous efforts to make the United States a party to the Genocide Convention. The renewed effort to obtain Senate advice and consent to ratification of this important treaty reflects the President's personal interest in furthering the development of law for the protection of human rights. You may be confident that the Executive Branch will make every effort to assist in securing the necessary majority in the Senate. Sincerely, Enclosure. WILLIAM P. ROGERS. POINT-BY-POINT REBUTTAL TO SENATOR ERVIN'S "SUMMARY OF OBJECTIONS TO GENOCIDE TREATY" 1. Objection. "Under the Treaty, the International Court of Justice could require the United States to go to war to prevent one nation from killing the nationals of another nation." Answer. The Court has no such power. Article IX of the Convention provides that disputes relating to the "interpretation, application or fulfillment" of the Convention shall be submitted to the Court at the request of any party to the dispute. This provision defines the limited role of the Court in regard to the Genocide Convention. The Court could thus find that a state had not lived up to its obligations under the Treaty. However, the Court has no power to take any action with regard to such a finding. Consequently, the Court could neither be seized of the question of whether one state was required to go to war, nor could the Court take any action to require a state to go to war. Only the Security Council of the United Nations has the power, under Article 94 (2) of the U.N. Charter, to make recommendations or decide upon measures to give effect to a judgment of the Court with which a state has failed to comply despite its duty to do so under Article 94 (1). 2. Objection. "The International Court of Justice could allow the United States [sic. U.N.] to investigate or take action concerning the acts of public officials and individuals in the United States." Answer. It is clear that the Federal Government already has the duty to investigate or take action concerning acts of public officials and individuals which may be in violation of Federal law. And there is no longer any question that the protection of human rights is a recognized matter of Federal concern under the U.S. Constitution, in regard to which Federal criminal statutes may be enacted, as for example the Civil Rights Acts. 3. Objection. "The Convention could lead to the creation of an International Court for trials of American citizens for genocide without the constitutional safeguards and legal rights accorded persons charged with a domestic crime." Answer. The Genocide Convention clearly would not require the United States to accept the jurisdiction of such a court. In the more than 20 years since the Convention was adopted no international penal tribunal has been created. While (91) one was proposed at the time of the drafting of the Convention, this proposal has long been dormant and there is no reason to suspect that it will be revived. If such a court were proposed in the future, Senate advice and consent would at that time be necessary for the United States to adhere to the treaty establishing the court and accept its jurisdiction. 4. Objection. "The Convention could make American soldiers subject to trial for killing and wounding members of the military forces of our warring enemy." Answer. First, it should be pointed out that combat actions of American troops against enemies do not constitute genocide. For example, it is difficult to conceive that acts committed by U.S. troops in Vietnam could fall within the definition of genocide in Article II. The article requires an intent to destroy in whole or in part, national, ethnical, racial, or religious groups, "as such." Our military forces are fighting to help the South Vietnamese defend themselves and therefore acts committed against other Vietnamese would not constitute genocide. Of course, American soldiers who are captive in the territory of an enemy state conceivably might be subjected to prosecution by that state for the crime of genocide whether or not the United States had ratified the Genocide Convention. There is no reason to believe that ratification of the Convention by the United States would make such a prosecution more likely or more justifiable. 5. Objection. "The International Court of Justice would be empowered to decree that the President had interpreted and applied the provisions of the Convention incorrectly." Answer. This is true and entirely appropriate, but we do not believe that such a case would ever arise. The United States has, in many cases in its treaties, provided that disputes relating to interpretation, application, and fulfillment of a treaty shall be referred to the International Court of Justice. Recent examples where the Senate approved similar provisions are the Convention on the Privileges and Immunities of the United Nations (1970), the Refugee Protocol (1968), and the Supplementary Slavery Convention (1967). A full list of the numerous treaties containing such clauses has been inserted at page 215 of 1970 Hearings on the Convention. 6. Objection. "The Convention could authorize any party to call on the United Nations to take such action against the United States under the Charter of the United Nations it considers 'appropriate for the prevention and suppression of acts of genocide." Answer. The Convention does not, and indeed could not, expand the powers or broaden the jurisdiction of the United Nations. It merely confirmed the existing situation members of the United Nations may already seek action by the United Nations under the Charter. 7. Objection. "Individuals and government officials would be subject to trial and punishment for offenses which have always been regarded as matters falling within the domestic jurisdiction of the various nations." Answer. The protection of human rights is a matter of legitimate international concern. The United States has shown that it agrees with this view by ratifying the World War II peace treaties, the United Nations Charter, the Slavery Convention of 1926, and more recently the Supplementary Convention on Slavery (1967) and the Refugee Protocol (1968). However, trial and punishment of persons would be in domestic courts under the provisions of the implementing legislation to be enacted by the Congress. 8. Objection. "The Convention definition of genocide is inconsistent with the real meaning of the term, so a public official or a private individual would be subject to prosecution and punishment for genocide if he intentionally destroys a single member of one of the specified groups." Answer. The first understanding proposed by the Foreign Relations Committee, in Executive Report No. 91-25, would ensure that intentional destruction of a single member of one of these specific groups is not sufficient to constitute the crime of genocide. That understanding provides: "That the U.S. Government understands and construes the words 'intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such' appearing in article II, to mean the intent to destroy a national, ethnical, racial, or religious group by the acts specified in article II in such manner as to affect a substantial part of the group concerned." (Emphasis added.) In addition the implementing legislation which we contemplate would clearly incorporate the understanding by providing that the genocidal action must be committed in such a manner as to affect a substantial part of the group concerned. 9. Objection. "The duty and the power to prosecute and punish criminal homicides, assaults, and batteries, and kidnappings covered by the Convention would be forthwith transferred from the states which have always had such duty and power in respect to these crimes to the federal government." Article II. In order for genocide to be committed, an act must be directed against the individuals involves qua members of a particular group, and there must be a specific intent to destroy the group as such in whole or in part. Moreover, under the proposed understanding a substantial part of the group has to be affected. This is not the ordinary homicide case, and the Government does not intend to institute prosecutions for genocide in ordinary homicide cases. 12. Objection. "The Convention would impose upon the United States the duty to prevent and to prosecute and punish officials and individuals who cause 'mental harm to members' of the groups mentioned in the Convention. What mental harm and what psychological acts or omissions are made punishable?" Answer. "Mental harm" means permanent impairment of mental faculties. This construction, which is consistent with the drafting history of the Convention, has been adopted by the Senate Foreign Relations Committee in its proposed understanding: "That the U.S. Government understands and construes the words 'mental harm' appearing in article III (b) of this convention to mean permanent impairment of mental faculties." The understanding will, of course, be reflected in the implementing legislation. Thus, before a charge can be sustained, it must be proved that permanent impairment of mental faculties in fact occurred and that the defendant brought about this injury with the specific intent of destroying one of the protected groups. Thus, the standard is rigid enough to protect against frivolous allegations of genocide. 13. Objection. "The Convention imposes the duty to punish any one who deliberately inflicts 'on the group conditions of life calculated to bring about its physical destruction in whole or in part.' Does this mean that a county official who refuses to give a member of a group the amount of welfare benefits deemed desirable can be punished for genocide. Does it means that the Court of International Justice shall have power to judge the adequacy of welfare benefits awarded by Congress or a State Legislature?" Answer. Article II (c) of the Convention provides that one of the ways of committing genocide is by "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." This provision is aimed at conditions of life inflicted upon the group which are meant to cause death or grave bodily injury. Generally speaking. the provision covers "slow death" measures which are imposed on a group, as, for example in a concentration camp. See P. Drost, The Crime of State-Genocide, pp. 86-87 (1959). Denial of adequate welfare benefits is of a completely different character than oppressive measures calculated to bring about slow death. In addition, the requisite intent to destroy in whole or in part the members of a group (see answer 11) would be lacking. 14. Objection. "The Convention makes any official or individual punishable for 'direct and public incitement to commit genocide.' Does this mean that if a member of Congress justifies the action of Jews of killing Arabs in the Middle East that he can be prosecuted for genocide? What about free speech?" Answer. Under the United States Constitution, while direct and public incitement to commit illegal activity is not protected, merely to argue a position concerning international relations or even to advocate illegal activities is protected by the first amendment. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Incitement crosses the bounds between protected and unprotected speech. The provision of the Genocide Convention therefore does not violate the Constitution. Moreover, were there any conflict, the first amendment clearly would control. Reid v. Covert, 354 U.S. 1 (1957). It is clear therefore that because of the protection provided by the first amendment any person may state his convictions regarding the situation in the Middle East. In addition, we note that under 91-544-77———7 Article I, Section 6, of the U.S. Constitution no member of Congress may be questioned in any other place for any speech or debate in either House; members of Congress are thus, of course, free fully to express their views in the Congress. 15. Objection. "The provisions of the Genocide Convention would immediately supersede all state laws and practices inconsistent with them, and nullify all provisions of all acts of Congress and prior treaties inconsistent with them. Thus, the Connally Reservation and the Vandenberg Reservation to the Jurisdiction of the International Court of Justice would be voided." Answer. It is true that the Genocide Convention would override inconsistent state laws, acts of Congress, or treaties. However, it is difficult to conceive of any state or federal laws inconsistent with a prohibition of the crime of genocide. We know of no such laws, but if any existed we do not believe that any member of Congress would argue for their maintenance. At any rate, the Convention does not nullify the Connally or Vandenberg reservations. The Connally amendment, or self-judging aspect of our domestic jurisdiction reservation, could be employed to prevent the International Court of Justice from deciding a case brought against the United States based on our acceptance in 1946 of compulsory jurisdiction with regard to any international legal dispute under paragraph 2 of Article 36 of the Court's Statute. The Vandenberg reservation, or multilateral treaty reservation, could prevent jurisdiction under the same paragraph of the Statute in cases arising out of a multilateral treaty where all the parties affected by the decision are not parties to the case or the United States has no specifically agreed to jurisdiction. These reservations could not, however, be invoked under Article IX of the Genocide Convention, which provides that parties may bring disputes concerning the interpretation, application, or fulfillment of the Convention to the Court, since the basis for the Court's jurisdiction would be paragraph 1 of Article 36 of the Statute, which gives the Court jurisdiction to decide legal disputes "specifically provided for . . . in treaties and conventions in force." Article IX of the Convention thus has the effect of avoiding the application of the reservations in the extremely small class of potential cases that may arise from unresolved differences over the interpretation, application, or fulfillment of the Convention. THE LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, Washington, D.C., June 9, 1976. To: Senate Foreign Relations Committee. Subject: Multilateral treaties relating to crimes under international law. This memorandum is submitted in response to your request for a listing of multilateral treaties to which the United States is a party and which provide for crimes punishable under international law. While each of the treaties or conventions listed below define the crimes contained therein, and as such might be considered crimes under international law, the responsibility for punishment of such crimes is, almost universally, assigned to each contracting State to be effectuated within its own domestic jurisdiction: Convention for the suppression of unlawful seizure of aircraft (hijacking). 22 U.S.T. 1641: TIAS 7192 Done at The Hague, December 16, 1970; entered into force for the United States, October 14, 1971. As of January 1, 1976, 75 States were parties to this convention. Convention for the suppression of unlawful acts against the safety of civil aviation (sabotage). Done at Montreal, September 23, 1971; entered into force for the United States, January 26, 1973. 24 U.S.T. 564; TIAS 7570. As of January 1, 1976 65 States were parties to this convention. Convention relating to the suppression of the abuse of opium and other drugs. Signed at The Hague January 23, 1912: entered into force for the United States February 11, 1915. 38 Stat. 1912; TS 612; 1 Bevans 855. Protocol amending the agreement, conventions, and protocols on narcotic drugs concluded at The Hague on January 23, 1912, at Geneva on February 11, 1925, and February 19, 1925, and July 13, 1931, at Bangkok on November 27, 1931, and at Geneva June 26, 1936. Done at Lake Success, New York, December 11, 1946. Protocol entered into force for the United States August 12. 1947, 61 Stat. 2230; 62 Stat. 1796; TIAS 1671, 1859; 4 Bevans 267; 12 UNTS 179. Protocol bringing under international control drugs outside the scope of the Convention of July 13, 1931, for limiting the manufacture and regulating the distribution of narcotic drugs, as amended by the protocol signed on December 11, 1946. Done at Paris November 19, 1948; entered into force for the United States September 11, 1950. 2 U.S.T. 1629; TIAS 2308; 44 UNTS 277. Convention on offenses and certain other acts committed on board aircraft. Done at Tokyo September 14, 1963; entered into force for the United States December 4, 1969. 20 U.S.T. 2941; TIAS 6768; 704 UNTS 219. As of January 1, 1976, 79 States were parties to this Convention. Convention to suppress the slave trade and slavery. Concluded at Geneva September 25, 1926; entered into force for the United States March 21, 1929. 46 Stat. 2183; TS 778; 2 Bevans 607. As of January 1, 1976, 105 States were parties to this Convention. MOSES L. PERRY, JR., Legislative Attorney. 1 CHAPTER IV. HUMAN RIGHTS 1 2 CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE Text: United Nations, "Treaty Series," vol. 78, p. 277. 1 For other multilateral treaties concluded in the field of human rights, see chapters V, VII, XVI, XVII and XVIII. 2 Resolution 260 (III), see "Official Records of the General Assembly, Third Session," Part I (A/810), p. 174. |