[From the New York Times, Feb. 26, 1976]

TO BANISH GENOCIDE

At long last, the American Bar Association has reversed its stand against the United Nations Genocide Convention and recommended United States ratification of that humanitarian treaty. The turnaround by the A.B.A. House of Delegates at its recent meeting in Philadelphia removes an aura of respectability in which opponents of the convention-in the Senate and elsewhere had been able to cloak themselves for more than a quarter century.

With memories still fresh of Hitler's "final solution" for six million Jews, the United States delegation and individual Americans played leading roles in drafting the treaty-known formally as the Convention on the Prevention and Punishment of the Crime of Genocide-and in getting it approved unanimously by the U.N. General Assembly in 1948. Then, despite repeated endorsements by Presidents, Secretaries of State and Attorneys General, the United States stalled on ratification.

The A.B.A. first come out against ratification in 1949, and very narrowly reiterated this stand in 1970, despite support for the treaty by its own president and three of its committes. While conjuring up bogus spectacles of Americans being summoned before alien courts on charges of racial discrimination at home, Senate opponents invariably fell back on the A.B.A. attitude as the clincher for their arguments.

A decisive majority on the Senate Foreign Relations Committee has long favored ratification and so reported in 1973, only to lose two attempts the next year to invoke cloture and end a filibuster on the issue. The gains liberals have made in the Senate, the reduction to sixty in the votes required for cloture and, above all, the shift in position of the A.B.A. should remove any doubt about the affirmative outcome of the next Senate vote.

Four score nations, including all the leading powers, have now ratified the Genocide Convention. It is past time for the United States to join them in striking a blow both for humanitarianism and for a significant extension of international law.

[From the Chicago Daily News, June 21, 1977]

GENOCIDE BILL MUST BE OK'D

(By William F. Buckley, Jr.)

NEW YORK-Sen. Jacob Javits of New York has anounced his intention to press for the ratification of the Genocide Convention, and although there are abundant reasons to doubt it will save any endangered species, the arguments in favor of its passage outweigh the negative arguments. Here is what one should bear in mind in thinking about any international human rights law:

The ideological enemies of human rights, most conspicuously the Communist states, will not be contained by the legislation. But this does not mean that the legislation cannot be put to useful effect.

Nonideological enemies of human rights are much likelier to benefit from stipulated definitions of human freedom. Norms achieved by the more civilized states after millennia of agonizing experience are a part of the universal patrimony. If and when human rights finally arrive in nations like Iran and Chad, it will be because of the idealism of those who have fought for universal declaration of human rights.

Probably the main reason for the Senate's failure to pass the Genocide Convention was the opposition of the American Bar Assn. It was widely feared, during the '50s and '60s, that Americans might be detained in murky parts of the globe and charged with "genocide" against American Negroes or Vietnamese peasants, tried and imprisoned.

In fact, our passage of the genocide convention or our rejection of it, would not have stood in the way of a state that chose to press such a charge against a U.S. citizen. Available to us in such situations is nothing more than our diplomatic resources and our atom bombs.

Even so, the recommendation of the bar association, which now favors ratification, is based on the attendant protocols. Only Congress can pass laws that would give teeth to the Genocide Convention.

With these qualifications, what is the point of the convention? It is a moral point, but moral points are after all about all we have left. We should officially identify ourselves as approving the proposition that genocide is a violation of international law. This distinctively hideous crime has been practiced against the Armenians, against the Jews, against any number of African tribes, against Asiatics, against Cambodians. The failure of the Senate to declare itself on the subject is itself arresting, and Javits is right to urge its passage.

STATEMENT BY SENATOR CLAIBORNE PELL

I have long been a fervent supporter of adherence by the United States to the Genocide Convention and urge my colleagues on the Foreign Relations Committee to recommend that the Senate provide its advice and consent to the ratification of this important international agreement. Ratification of this agreement is long overdue. It is hard to believe that the Genocide Convention was signed by the United States in 1949; yet we are still not a party to that agreement which deals with one of the most heinous assaults on human rights-the attempt to destroy, in whole or in part, a national, ethnic, racial or religious group.

It is a source of great personal satisfaction to me that the groundwork for this Convention was laid by my father, Herbert C. Pell, who was appointed by President Roosevelt in 1943 as the American representative to the United Nations War Crimes Commission. It was my father who fought-successfully in the end, although he lost his job as a result of the controversy his efforts aroused in Washington-to align the United States firmly in favor of punishment of Nazis for "crimes against humanity," in particular for atrocities against the Jews. The Nuremberg Trials, based upon the work of the War Crimes Commission, established the historic precedent for punishing the crime of genocide.

It is ironic that so many years after my father fought to convince his own and other governments that atrocities against Jews and other groups should be considered as crimes, that I should be engaged in the effort to commit the United States to the punishment of genocide wherever and whenever such “crimes against humanity"-to use the phraseology of my father's time-occur.

After his ouster from the War Crimes Commission by a resentful State Department, which in the end was forced to yield to his view as a result of the public indignation his dismissal aroused, my father remarked that "right comes not so much from the efforts of those who are supporting it as from the deadlock of those who are supporting something else." In the case of the Genocide Convention, which is again before this Committee, it is my hope that this time right will prevail because of the efforts of those of us who support the right course of action.

STATEMENT BY SENATOR JESSE HELMS OF NORTH CAROLINA

RATIFICATION OF THE GENOCIDE CONVENTION IS AN UNCONSTITUTIONAL USE OF UNITED STATES TREATY POWER

Ratification of the Genocide Convention would mark a watershed in the history of law in the United States. If approved by the Senate, it would bring about profound changes in the independence of our legal system and the objectivity of our system of justice. Ratification of this Convention would amount to an unconstitutional use of the treaty-making power of the United States. It would violate basic principles of our Constitution and fundamental tenets of international law. While the notion 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.

The scope of the treaty-making power of the United States is defined and limited by both the Constitution and basic principles governing the law of nations. Justice Sutherland made clear the relationship between constitutional law and international law in determining U.S. treaty power in the famous case of the United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

The power of the United States to make treaties vested in the national government, not as one of the powers granted to it by the States through the Constitution, but as a natural and necessary part of its sovereignty. "As a member of the family of nations," Justice Sutherland observed, "the right and power of the United States in that field are equal to the right and power of

the other members of the international family. Otherwise, the United States is not completely sovereign.”

However, the States did regulate the exercise of that power in the Constitution. The most obvious regulation of the treaty-making power is Article II, section 2 of the Constitution which provides that treaties shall be made "by and with the advice and consent of the Senate" and that a two-thirds vote of the Senate is necessary for ratification of a treaty. Other limitations have been developed over time by the very process of operating a government under the Constitution. This tradition, beginning with the drafters of the Constitution, has limited the treaty-making power to those areas of concern which are of international character. Thomas Jefferson wrote in his manual of parliamentary practice that "by the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated."

If we apply Mr. Jefferson's test for the constitutionally permissible use of the treaty power to the Genocide Convention, we find the Convention deficient. Genocide is a matter which falls outside the constitutional scope of the treatymaking power. It fails on both counts. First, genocide is a matter which, with the exception of the present convention, has never been regulated by treaty or customary international law. Although the word "genocide" itself may be of fairly recent origin, the acts which it describes have been occurring long before this century.

Historically, acts of genocide have not been considered to be within the domain of international law since they constitute criminal acts already regulated by the domestic law of all civilized nations. The acts defined by the Genocide Convention continue to be so prohibited by the domestic laws of almost every country of the world. Hence, Mr. Jefferson's second test also is not met by the Convention; namely, that it be a matter which cannot otherwise be regulated.

Making genocide, as such, a crime against the United States or of a particular State can be done without the assistance of a treaty. The legislative power of Congress and State legislatures is sufficient to protect Americans from these acts through our various criminal codes.

If genocide is of concern to the people of the United States, would not the wise course of action be to enact domestic legislation? If a specific legal prohibition of genocide is necessary, as a sign to the world that Americans oppose genocide, then why have the supporters of the Convention not brought forward legislation to amend the present federal criminal code to prohibit genocide? The fact that no such law has been introduced during the twenty-seven years in which ratification of the Convention has been considered reflects not only on the propriety of enacting such laws, but also upon the necessity of doing so. The classic statement on the limited scope of the treaty-making power was made by Mr. Charles Evans Hughes, just before he became Chief Justice of the United States and after he had been Secretary of State. As President of the American Society of International Law, Chief Justice Hughes said that the treaty power "is to deal with foreign nations with regard to matters of international concern. It is not a power intended to be exercised . . . with respect to matters that have no relation to international concerns There (is) a limitation upon the treaty-making power that is intended for the purpose of having treaties made relating to foreign affairs and not make law for the people of the United States in its internal concerns."

The noted international legal scholar, Charles Cheney Hyde, agreed with Chief Justice Hughes and maintained that: "by the adoption of the Constitution the Republic as a State relinquished the capacity to conclude treaties designed or calculated to restrict the American people in their purely internal concerns." The Genocide Convention also violates this test of constitutionality. It is the essence of the Genocide Convention to regulate the "American people in their purely internal concerns." Article II of the Convention defines five categories of offenses which constitute the crime of genocide. These categories include acts which cause death, bodily injury, mental harm or kidnapping of members of a national, racial, ethnical or religious group. The Convention provides that genocide, conspiracy to commit genocide, public incitement to commit genocide, attempt to commit genocide and complicity in genocide shall also be punishable. These crimes, as defined by the Convention, are applicable to Americans acting within the jurisdiction of the United States. Under Article VI of the Constitution, the Genocide Convention, upon ratification, will become the supreme law of the land and will necessarily be enforced just as any section of the Constitution or law of Congress. It will have immediate domestic application as criminal law.

The most important duty of any nation under international law is to protect its external independence and its internal jurisdiction. The Genocide Convention violates both these essential aspects of national sovereignty. Its basic goal is to internationalize the domestic criminal law of the nations which are parties to it. As such, United States ratification of the Convention would violate the external independence and internal jurisdiction of the American legal system.

Criminal law is within the "reserved domain" of the domestic jurisdiction of a nation. It is a general principle of international law that a State has jurisdiction with respect to any crime committed in whole or in part within its territory. In the famous international law case known as The Over The Top, a United States court held that the domestic criminal law of this country is not the proper subject of a treaty. The court stated:

"It is not the function of treaties to enact the . . . criminal law of a nation... Nor is there any doubt that the treaty making power has its limitations . Certain it is that no part of the criminal law of this country has ever been enacted by treaty." (5 F.2d 838)

Yet, this is indeed what ratification of the Genocide Convention would accomplish.

The regulation of international activity of the conduct of one nation to another-is the essence of the constitutional test of the treaty-making power. The treaty power may only be exercised with respect to matters which directly affect nations in their relationship with each other. In short, treaties, in the words of former Secretary of State John Foster Dulles, become "contracts between nations as to how they should act." But, by omitting governments from those responsible under its provisions for acts of genocide, the Genocide Convention is not a contract between nations as to how they should act, but a contract between a nation and its citizens, as to how they should act.

The American Law Institute, in its Restatement of the Foreign Relations Law of the United States, summarizes the constitutional limits of the treaty-making power as follows:

"An international agreement of the United States must relate to external concerns of the nation as distinguished from matters of purely internal nature. As the effect of international agreements is the creation or modification of relationships under international law, it would be inconsistent to utilize them for the regulation of matters bearing no relation to international affairs."

Again, the effect of the Convention concerning the actions of nations in their relationships with each other is so minimal that it can hardly be said to meet this basic test.

During nearly two hundred years, the constitutional purpose of the treatymaking power of the United States has not changed. Whether measured by Mr. Jefferson's test or that of Chief Justice Hughes or the American Law Institute, it is simply to promote the international interests of the United States by securing the action of foreign governments. I do not believe that treaties should, or lawfully can, be used as a device to circumvent the constitutional procedures relating to matters of domestic concern. If ratified, the Genocide Convention will take effect in the United States as domestic criminal law.

The constitutional propriety of ratification of the Genocide Convention must ultimately be judged by the end sought to be achieved by the Convention. The substantial end of the Convention is not to regulate the actions of one government to another. Rather, it is an agreement entered into by a number of states to alter the criminal law within their respective domestic jurisdiction. A constitutionally proper treaty must be more than a mere subterfuge for the enactment of domestic legislation. The Genocide Convention is not.

U.S. SENATE,

COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY,
Washington, D.C., May 26, 1977.

Hon. JOHN J. SPARKMAN,
Chairman, Foreign Relations Committee,
U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: Almost 28 years ago to the month, President Harry S. Truman submitted to the United States Senate, "The Convention on the Prevention and Punishment of the Crime of Genocide" (Executive O, 81st Congress, 1st Session, June 16, 1949), asking the "advice and consent" of the Senate to ratification of such treaty.

The history of the justifiable lack of action on the part of the United States Senate to so "advise and consent" to the treaty is well known, and certaintly well documented. To some, perhaps, this lack of affirmative action on the part of the Senate is considered a condemnation of the Senate. I do not consider the Senate's role in this matter to be a cause for disparagement. Rather, it is a celebration of the wisdom of the Founding Fathers who provided this great Nation with a written Constitution which includes the sharing of power between the Executive and Legislative Branches of the Government with respect to our country's relations with other states.

Thus, Mr. Chairman, over the course of the subject 28 years, the United States Senate, representing 48, then 49, and now 50 States, and comprised of 301 individual Senators, has been, in its combined and cumulative wisdom, unwilling to render advice and consent to the treaty sought by President Truman. These tumultuous years were marked by leadership in the Senate from the six chairmen of the Foreign Relations Committee, including Senator Tom Connally of Texas, Senator Alexander Wiley of Wisconsin, Senator Walter F. George of Georgia, Senator Theodore Francis Green of Rhode Island, Senator J. W. Fulbright of Arkansas, and Senator John Sparkman, the Senior Senator from Alabama. In addition, the Senate's majority during those years was in the hands of the able and distinguished Senator Scott W. Lucas of Illinois, Senator Ernest W. McFarland of Arizona, Senator Robert Taft of Ohio, Senator William F. Knowland of California, Senator Lyndon Baines Johnson of Texas, Senator Mike Mansfield of Montana, and the current Majority Leader, the distinguished Senator from West Virginia, Mr. Robert Byrd.

Furthermore, the Senate's refusal to render its advice and consent cannot be laid at the doorstep of the President of the United States for, during the administrations of Presidents Eisenhower, Kennedy, Johnson, Nixon, Ford, and now, Jimmy Carter, there has been at a minimum, statements of Presidential support for the treaty from each.

All claims or suggestions to the contrary notwithstanding, the American people abhor genocide and have had, do have, and shall continue to have serious reservations about formalizing in treaty form a concept that is inherently part of the mores of our society. The American people also know that no treaty, with or without "reservations" or "understandings" will end the horrors of genocide as long as totalitarianism exists on the face of the Earth. Thus, Mr. Chairman, in the broad perspective, the Senate has correctly represented the moral strength of our society over the past 28 years by disallowing and disavowing international hypocrisy which is incorporated in the proposed treaty.

In the narrow perspective, dealing specifically with United States law, the Senate has correctly refrained from formalizing an international question mark. Twenty-eight years of consideration, hearings, reports, exclamations, exhortations, and debates have not quieted the great and fundamental questions about the potential impact of acceptance of the treaty on our body of law. I submit that another 28 years of debate would not suffice to quiet these objections.

I am aware of the Committee's current hearings on whether or not to advise and consent to the treaty. I applaud the Committee's call for a full and complete record of the debate on this issue. I am heartened by the diligence with which the Committee is now attempting to answer the questions that have plagued the subject for these past two decades. I am particularly pleased that you have requested of the Department of State, answers to the serious questions regarding genocide posed by the distinguished former Chairman of the Senate Judiciary Committee, Sam Ervin of North Carolina, which he raised in 1970, 1973, and during floor debate on this matter in 1974.

While the volume of material is growing by leaps and bounds, and while it is recognized that a distinguished body of private lawyers have recently reversed their position of some of 28 years standings, and while it is true that the current Administration has placed a heightened emphasis on human rights, nevertheless, I believe that the fundamental truths which have prevented the Senate from acting heretofore will prevent the Senate from acting on this treaty this year, or any year in the future.

I cannot subscribe to the proposition expressed before your Committee on May 24 that our Nation's face to the world as a moral leader would be or is damaged, harmed or sullied because it does not agree to the proposed treaty. 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 suspect