result in charges of genocide made by our opponents. Mr. Chairman, loose charges of genocide are not valid under the terms of the Convention, which requires the intent to destroy an entire group. This is a critical and essential element. The requirement of intent to destroy a group as such distinguishes killing or wounding in combat from genocide.

There has also been some discussion about possible use of international tribunals to punish defendants. It has been said that the International Court of Justice, referred to in Article IX of the Convention, would become a forum for trial. But of course neither the International Court nor any other international tribunal has criminal jurisdiction and no such trial is possible.

As for the international penal tribunal referred to in Article VI of the Convention, the United States has no obligation to become a party to the statute of any such tribunal should it ever be established. For the United States to accept the jurisdiction of an international penal tribunal, an exercise of the treaty power would be required, and the advice and consent of the Senate by a two-thirds vote would be necessary.

I want to address the question of extradiction, in view of some complexities involved and in order to allay any misunderstandings. Article VII of the Convention provides that the parties pledge to grant extradition of persons charged with genocide "in accordance with their laws and treaties in force" and provides that there is no defense to extradition on the ground that genocide may be a "political" crime.

Concern has been expressed that American citizens could be extradited for trial in foreign countries where the legal system does not provide for the kinds of guarantees to criminal defendants available in the United States. There are several points to be made in response.

First, U.S. law provides for extradition only where there is an extradition treaty in force which covers the crime in question, but the Genocide Convention is not an extradition treaty. The Convention simply contemplates that the crime of genocide will be added to the list of crimes for which Americans will be extraditable under any new extradition treaties we might conclude, or in any existing extradition treaties we may revise. At the present time, genocide is not listed as an extraditable offense in any of our extradition treaties.

Second, the United States does not negotiate extradition treaties with nations which do not permit defendants a fair trial. The possibility of a fair trial, even though the standards cannot be expected to match ours in every detail, is always a factor taken into account in deciding whether to negotiate an extradition treaty.

In addition, since these treaties may remain in force for many years, during which time the judicial system of the foreign country may change, certain procedural safeguards are built into our extradition treaties. Such treaties require that the state requesting extradition must produce evidence of the crime sufficient to persuade a U.S. Court and the executive branch that the person whose extradition is requested would also be held for trial in the United States had the alleged crime been committed in this country.

Further, our extradition treaties provide that extradition will not be granted if the person sought has already had a trial or is undergoing a trial in the United States for the same act.

Article VI of the Convention provides that persons charged with genocide are to be tried by a competent tribunal of the State in the territory in which the act was committed. But the negotiating history of the Convention makes it abundantly clear that tria! may also occur in the country of which the defendant is a national. The third understanding attached by the Committee to the proposed resolution of ratification makes this point as well, and it is further spelled out in the implementing legislation.

Moreover, Section 3 of the draft implementing legislation sets forth the sense of the Congress that the Secretary of State, in negotiating extradition treaties, is to reserve for the United States the right to refuse extradition of a U.S. national to a foreign country to stand trial on a charge of genocide if the United States intends to exercise jurisdiction in the case, or the defendant has been or is being prosecuted for the offense in the United States. In brief, the United States may always elect to try a U.S. national and thus refuse extradition, no matter where the alleged crime had been committed.

Mr. Chairman, there is one very positive legal aspect of this matter that I believe has not received the attention it deserves, and that is the place of the Genocide Convention in the development of an emerging concept of international

crimes, a concept that serves the interests of the United States and the world community. As you know, we are a party to a number of criminal law treaties, including the laws of war conventions, the treaties on aircraft hijacking and sabotage, the convention on the protection of diplomats, and treaties on narcotics trade, oil pollution, and others. Piracy has long been prohibited by international criminal law. We have also introduced at the United Nations a treaty on terrorism. And of course, these criminal law treaties to which we are a party, like the Genocide Convention and piracy charges, rely on our court system for their enforcement.

In brief, we are a party to and we are in the process of developing a body of international criminal law that is important to the United States and to a peaceful world order. The Genocide Convention is one of the missing pieces in U.S. adherence to such a pattern of international criminal standards, and it is my hope that this situation will be corrected. As this Committee stated in its 1976 report on the Genocide Convention, what is really at issue is an attempt of a civilized society to curb the excesses of mankind and to set a higher standard of international morality.

That ends my prepared remarks, Mr. Chairman, and I would be happy to respond to any questions you or the members of the Committee may have.

Senator STONE. Mr. Hansell and Mr. Christopher, I would like to voice as questions some of the points that were raised by former Senator Sam Ervin, which have been repeated in conservative journals and journals expressing constitutional supportive points of view ever since.

Some of these points you have covered or mentioned, at least, in your prepared remarks, Mr. Hansell. But I still feel for the purpose of clarity those thoughts should be as much a part of this hearing as if Senator Ervin were still serving with distinction in the Senate.

JURISDICTION OF INTERNATIONAL COURT OF JUSTICE

May I first paraphrase his concerns. He contended that if ratified, the World Court could require the United States to go to war to prevent one nation from killing the nationals of another nation. He contended that the Court could allow the United Nations to probe actions, and here I will directly quote Senator Ervin, "The acts of public officials and individuals in the United States"-there is more but I will stop after this one. He contended that the convention could make American soldiers, and again I quote, "subject to trial for killing and wounding members of the military forces of our warring enemy." Would you respond to those three points, either of you, Secretary Christopher or Mr. Hansell. First is the allegation that the World Court could require the United States to go to war to prevent one nation from killing nationals of another; second, the Court could allow the U.N. to probe actions concerning the acts of public officials and individuals in the United States; and third, that the convention could make American soldiers subject to trial for the killing and wounding of members of the military forces of our warring enemy. Would you respond to those three for openers.

Mr. HANSELL. Mr. Chairman, I think with respect, at least, to the first two of those, this committee has provided a most effective response

Senator STONE. In the understandings?

Mr. HANSELL. Well, in its report of April 29, 1976, to which reference was made earlier by Senator Javits, I believe. Senator STONE. On what page?

Mr.HANSELL. I am looking for that now, sir.

I believe it is the discussion of article IX, which begins on the

bottom of page 12 and continues onto page 13 of that report. It deals with the jurisdiction of the International Court of Justice.

Senator STONE. After all, what Senator Ervin was doing was debating after it left here and apart from the proceedings here. Instead of citing us to ourselves, I think that, as a legal expert, it would be very helpful if you would address yourself directly to those concerns of Senator Ervin's.

Mr. HANSELL. Yes, indeed.

Senator STONE. I do have the report in front of me. To make the record fully complete, I will include in our record those pages which you have cited from our previous report at this point in the discussion. [The information referred to follows:]

[Excerpt from Senate Foreign Relations Committee Report of Apr. 29, 1976 on Genocide Convention]

SETTLEMENT OF DISPUTES

ARTICLE IX

Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

The jurisdiction of the Court will extend to disputes relating to the interpretation, application, or fulfillment of the convention, including those relating to the responsibility of a state for genocide. It must be noted that such cases will fall under article 36(1) of the Court's statute which provides:

1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. (Emphasis added.) Cases arising under the Genocide Convention will not be covered by the Connally amendment under which the United States reserves to itself the right to determine which cases it considers to be within its domestic jurisdiction and therefore outside the jurisdiction of the Court. The Connally amendment applies only to article 36(2)—the so-called compulsory jurisdiction clause.

Provisions similar to Article IX are included in many multilateral and bilateral conventions to which the United States is a party. A list of these appears on page 215 of the 1970 hearings. Prominent examples include the Japanese Peace Treaty, the Antarctic Treaty, and the Statute of the International Atomic Energy Agency.

It must also be noted that a number of countries, notably Communist countries, have ratified the treaty subject to the reservation that they do not consider themselves bound by article IX. Other countries have taken exception to this action. The United States is expected to do likewise. As a consequence, the United States could invoke the reservation in its own behalf in cases brought by countries making such a reservation.

The committee does not envisage any real difficulties resulting from article IX. No disputes arising from alleged violations of the Genocide Convention have been decided by the Court to date. This is not to say, of course, that the United States might not be someday charged with nonfulfillment of the treaty by another signatory and might even be found in default of its treaty obligationthough this is hard to conceive-but as a practical matter that is where it would end. The Court has no enforcement powers. It is also well to recall that only states party to the Statute can bring cases before the World Court-not individuals or groups. In the committee's view, the fears expressed about the role of a moribund court in genocide matters appear very far fetched.

POWERS OF INTERNATIONAL COURT OF JUSTICE

Senator STONE. Now would you please address yourself to those points.

Mr. HANSELL. I will indeed.

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Under article IX of the convention, there is provision for disputes relating to the interpretation, application, or fulfillment of the convention to be taken to the International Court of Justice.

The effect of that, therefore, could be theoretically that a signatory state could bring before the Court another signatory in order to have resolved an issue of whether or not a violation of the treaty has occurred. However, the Court has no enforcement powers. The suggestion that somehow the International Court of Justice could require the United States to go to war or take any other act is not correct. Senator STONE. In other words, it does not have at this point, or subject to the ratification of this treaty, any enforcement powers to levy either a requirement affirmatively or a negative penalty, such as a fine or anything else.

Mr. HANSELL. That is correct. It has no enforcement powers what

ever.

Senator STONE. Just public opinion powers.

Mr. HANSELL. Precisely so. The committee indicated that it was an extraordinarily unlikely event, but should it occur, the matter would end in the judgment or finding. There is no enforcement authority whatever in the Court.

U.N. PROBE OF U.S. OFFICIALS AND INDIVIDUALS ACTION

Senator STONE. All right. What about the second allegation, that is that the U.N. could probe actions concerning the acts of public officials and individuals in the United States as an alleged violation of this convention?

Mr. HANSELL. Article VIII of the convention does provide that any contracting party may call upon a U.N. organ to take such action as it considers appropriate for prevention or suppression of acts of genocide.

Senator STONE. So that allegation is accurate? At least it is a possibility.

Mr. HANSELL. It is accurate to the extent that the accusation of the issue could be debated; but candidly, that power exists in the absence of the convention. Any charge, any accusation, any proposal for debate that would be brought before a U.N. organ with respect to an act of the United States could be brought in any case.

Senator STONE. Including investigation of officials within the member nations?

Mr. HANSELL. Indeed, sir.

SUBJECTING U.S. SOLDIERS TO TRIAL

Senator STONE. What about the third one. I believe you addressed that one before. It has to do with subjecting soldiers to trial.

Mr. HANSELL. This is fundamentally a question of the meaning of the basic articles of the convention together with, of course, the understanding that has been proposed previously by this committee, and we presume would be considered favorably by the committee again.

Senator STONE. Would you recommend some provision, either by understanding or reservation, depending upon whether we are affirming or changing in this situation?

Mr. HANSELL. The first of the understandings promulgated by the committee in its previous resolution defined the key phrase that I think provides the answer to this question, namely, the phrase, "intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such," which is the essence of the crime. As defined in the committee's proposed understanding, this would mean the intent to destroy a national group by one of the acts specified in article II in such manner as to affect a substantial part of the group concerned.

The interpretation of this language quite clearly, I think, would not encompass the act of the combat soldier engaged in action against hostile troops, but limited, of course, to the hostile forces.

Senator STONE. Senator Javits, I am going down the list of Senator Ervin's arguments from the last time. If either you or Senator Case wish to comment or to ask a question, please feel free to do so because this is taking a little time.

Senator JAVITS. Thank you.

DUTY TO PREVENT, PROSECUTE, AND PUNISH CONCERNING MENTAL HARM

Senator STONE. Next Senator Ervin said that the treaty would impose upon the United States the duty to prevent, and here I will quote, "prevent and to prosecute and to punish" public officials and individuals who cause "mental harm to members of a national, ethnical, racial, or cultural group."

Is that correct? It says prevent, prosecute, and punish. We already know that "mental harm" is in the treaty.

Mr. HANSELL. It is only if the acts are committed with the intent to destroy a group.

Senator STONE. The intent must be there?

Mr. HANSELL. The intent; it is the intent to destroy the whole group that must be there.

Senator STONE. The act could be toward a substantial part of a group, but the intent would have to be shown to be to destroy the whole group.

Mr. HANSELL. To destroy the group, yes.

Senator CASE. Suppose there were no chance of this happening? Mr. HANSELL. Then the crime of genocide will not have been made

out.

Senator CASE. I want that very clearly on the record.

Mr. HANSELL. Yes, sir.

Senator CASE. The standard of likelihood of success in whatever way it is defined that we apply in our courts has to be a part of the crime.

Mr. HANSELL. Indeed, Senator, yes.

Senator CASE. Did you say yes?

Mr. HANSELL. Yes, sir, I did.

As written, the convention makes it extremely difficult to prove the intent that is necessary to sustain the charge of genocide, and this, of course, is deliberately done. This committee, in its 1976 report, made that point crystal clear.

Senator CASE. Yes, I understand that.

Thank you.