topher, by far, and longer than the Department of Justice and most other agencies. The question about whether genocide is murder, I must say, stirs me. Genocide is murder and more. However, it may not qualify as murder under the criminal laws of many states. The reason is that genocide is mass murder by means other than those which might be declared murder in many civilized states. For example, the treaty covers public incitement to commit genocide. That might be some crime other than murder. If a leading public personality advocates to an audience of half a million that it should go out and eradicate a given racial or other group, it might not be murder, but we are defining it as murder because that is what it is, murder on a grand scale. LACK OF SENATE ACTION CONDEMNED It really does make my blood run cold, Mr. Secretary, to sit here and hear after all of these years the same points repeated. That is one of the most shocking failures of our country, of our system. What you said about the implementing statute and the treaty illustrates it. The Judiciary Committee will not consider this unless the treaty is ratified, and we are not going to ratify it unless the Judiciary Committee considers it. Now how crazy can we be? There is implementing legislation. It has been around for years. Hugh Scott introduced it in the last Congress. As a matter of fact, it is attached as an appendix to a report of the committee, our own committee, which is Executive Report No. 94-23, 94th Congress, 2d session. For years the objections of the American Bar Association were considered to be a barrier on the ground that the United States would not be able to try its own citizens if they committed crimes. But the implementing legislation takes care of that. In addition, we have incorporated in our resolution of ratification and we will again, not a reservation, because that would cause the whole treaty to be renegotiated, but in a declaration, to wit: that the U.S. Government declares that it will not deposit its instrument of ratification until after the implementing legislatoin referred to in article 5 has been enacted. That particular piece of legislation, to which I was also a cosponsor, provides that people guilty of this crime shall be tried in U.S. courts, thus eliminating all of the arguments that somebody could extradite an American and try him in some foreign or international court. It seems to me, Mr. Secretary, that every conceivable argument that could ever be thought up about this has been thought up and so decisively repudiated that even the American Bar Association has changed its mind. The only one that has not changed its mind is the Senate of the United States. Now that is not because the Senate does not want to, but because there is a band of willful men here who stand in its wav, whatever may be the dictates of humanity, or of reason, or of law, or of international comity, or of friendship. It is just beyond belief. It has really gotten beyond the point of questions and answers. It has just gotten to the point only of indignation and outrage. If we could only ignite enough Americans to feel as you do and I do and others like us do, why this thing would have been ratified long before this. It is just shocking and shameful. Mr. CHRISTOPHER. Senator, if I could just respond by associating myself with your outstanding statement and say that to me the fact that genocide is murder does not remove the need for ratification, it enhances it. What we need is an endorsement of the obligation to prosecute in situations covered by the treaty. DEFINITION OF GENOCIDE Senator JAVITS. Of course, as our Chief of Staff points out, the definition in the treaty deals also with the permanent impairment of mental faculties and other means of human subjections, which are worse than murder, because they produce a living dead and yet this may not qualify technically as the crime of murder. I ask unanimous consent that that particular section of the implementing legislation be made a part of my remarks together with the pertinent part of the treaty on that score. Senator STONE. Without objection, that will be done. [The information referred to follows:] [Excerpt from text of Genocide Convention] TEXT OF RESOLUTION OF RATIFICATION Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of the International Convention on the Prevention and Punishment of the Crime of Genocide, adopted unanimously by the General Assembly of the United Nations in Paris on December 9, 1948, and signed on behalf of the United States on December 11, 1948 (Executive O, Eightyfirst Congress, first session) subject to the following understandings and declaration: 2. That the United States Government understands and construes the words "mental harm” appearing in article II (b) of this Convention to mean permanent impairment of mental faculties." [Excerpt from implementing legislation] "(a) Whoever, being a national of the United States or otherwise under or within the jurisdiction of the United States, willfully without justifiable cause, commits, within or without the territory of the United States in time of peace or in time of war, any of the following acts with the intent to destroy by means of the commission of that act, or with the intent to carry out a plan to destroy, the whole or a subsantial part of a national, ethnic, racial, or religious group shall be guilty of genocide: "(1) kills members of the group; "(2) causes serious bodily injury to members of the group; 66 '(3) causes the permanent impairment of the mental faculties of members of the group by means of torture, deprivation of physical or physiological needs, surgical operation, introduction of drugs or other foreign substances into the bodies of such members, or subjection to psychological or psychiatric treatment calculated to permanently impair the mental processes, or nervous system, or motor functions of such members; "(4) subjects the group to cruel, unusual, or inhumane conditions of life calculated to bring about the physical destruction of the group or a substantial part thereof; "(5) imposes measures calculated to prevent birth within the group as a means of effecting the destruction of the group as such; or "(6) transfers by force the children of the group to another group, as a means of effecting the destruction of the group as such." Senator JAVITS. Mr. Secretary, I can only weep with you. Continue to fight and try. We came very close. We came within two or three votes of cloture, and that is about the high water mark. It takes only 60 to effect cloture. Mike Mansfield promised us that if we could produce 60 votes, he would put it on any day that we told him that we had the 60. I am sure the same would be true of the present majority leader. We can only hope that this will occur. I will add one further thing if the Chair will allow me to continue to have the floor. Senator STONE. Please proceed. PRESIDENT CARTER'S INFLUENCE AND INITIATIVE Senator JAVITS. Thank you. I want to say that I think Jimmy Carter can have a great influence here. I have always thought that if the President really got behind this and made it an absolute matter of personal request, he could win enough Senators to effect cloture. There is no question about ratification. It is just a question of closing off debate. I deeply appreciate the President's renewed initiative. It would be easy to get discouraged by any new President. Knowing him to be a determined man and a highly humane person with deep moral convictions, I hope very much that he will make this his personal request to enough Senators so that this year may be the year of grace for the Genocide Convention. Thank you, Mr. Chairman. Senator STONE. Senator Case. Senator CASE. Thank you, Mr. Chairman. Mr. Secretary, I have never heard Senator Javits be more eloquent. He has the right to express also his anger and his anguish, and he is correct in this. SENATOR CASE'S PREVIOUS OBJECTIONS TO CONVENTION I would like to say one thing. I support this treaty. I did last time and I was one of those who stood ready to support cloture. But I also am one of those who for many years, until it had been clearly established that we were going to have American constitutional rights preserved for American citizens wherever they be, was not willing to go in to a mere form of words to which we would feel obliged to live up to and which, as we have come to find out, were a mockery in the mouths of many people in the world. Not all of the strong objections, which I had to this treaty for a long time were arbitrary, in my opinion, or wrongly held. It took a long time for the opponents like me to persuade the do-gooders to accept the legislation which is now a part of this whole arrangement, and to accept the proposition that Americans had the right to look to their government for the preservation of their fundamental rights established in the Constitution. While I join in supporting this fully, as I did last year, I do it and did it then only after these matters have been established. Thank you, Mr. Chairman. Senator STONE. Thank you, Senator Case. COMMITTEE PROCEDURE Mr. Secretary, I have a series of questions. Some of them might be answered by you and some possibly by the experts you have brought with you. What should I do, Should I ask questions of the panel or wait until Mr. Hansell has spoken? Mr. CHRISTOPHER. You are kind to ask, Mr. Chairman. I think that the most efficient way to proceed would be to allow Mr. Hansell to make a statement which might cover some of the questions that you would be asking. Senator STONE. Can you remain ? Mr. CHRISTOPHER. Yes, sir, I can remain. Mr. Hansell, would you then please proceed with your remarks. STATEMENT OF HON. HERBERT J. HANSELL, LEGAL ADVISER, DEPARTMENT OF STATE, ACCOMPANIED BY ARTHUR ROVINE, ASSISTANT LEGAL ADVISER, DEPARTMENT OF STATE; JACK GOLDKLANG, OFFICE OF THE LEGAL COUNSEL, DEPARTMENT OF JUSTICE; AND MURRAY STEIN, SUPERVISORY ATTORNEY FOR EXTRADITION, DEPARTMENT OF JUSTICE Mr. HANSELL. I will. thank you, Mr. Chairman. Mr. Chairman and Senators, I appreciate the opportunity to testify in support of this convention. As Senator Javits has indicated, most of the questions and issues that have been raised about the Genocide Convention, and the arguments advanced against it, have been responded to many times, including in the reports of this committee. My purpose this morning is to focus on some of the principal issues and questions that have been raised and on some of the legal criticisms that have been directed against the convention so that the administration's responses to them may be on the record. PROPRIETY OF GENOCIDE AS TREATY MAKING SUBJECT Perhaps the most fundamental objection has been that genocide is said not to be a proper subject for treaty making, but is essentially a subject within the domestic jurisdiction of the United States. But it is generally accepted, Mr. Chairman, that genocide is a proper subject for the treaty power. As this committee pointed out in its most recent report on the convention, some 83 nations are now parties to this convention. Clearly each of them has believed that genocide is properly a subject of international concern. In addition, the United States is a party to other human rights treaties, including those on slavery and refugees. Most recently, the Senate approved unanimously two treaties on the political rights of women. The day is past when it could be seriously contended that human rights are not appropriately the subject of international agreements. As the President said in his speech, to the United Nations 2 months ago, "All the signatories of the U.N. Charter have pledged themselves to observe and to respect basic human rights. Thus, no member of the United Nations can claim that mistreatment of its citizens is solely its own business." CHARGE OF VAGUE KEY TERMS It has also been charged that certain of the key terms of the convention are vague. But the understandings which are attached by the committee to the resolution of ratification that this committee has previously proposed, and also the draft implementing legislation, are both designed to define more precisely the meaning of various terms used in the convention, including such terms as "mental harm," and the key phrase, "intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such." IMPLEMENTING LEGISLATION I might interject that the implementing legislation, which has been referred to several times, was sent yesterday not only to the chairman of the Judiciary Committee of this body, but also to the chairman of the Judiciary Committee of the House of Representatives. Senator STONE. Do you have a copy with you? Mr. HANSELL. Yes, I do. Senator STONE. May I ask that that be submitted and made a part of the record of this hearing? Would you do that for us. SO. Mr. HANSELL. Indeed, we can give you a copy and are pleased to do Senator STONE. Thank you. [The information referred to follows:] A BILL To implement the Convention on the Prevention and Punishment of the Crime of Genocide Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) title 18, United States Code, is amended by adding after chapter 50 the following new chapter: "SEC "1091. Definitions. "1092. Genocide. "SEC. 1091. Definitions. CHAPTER 50A-GENOCIDE "As used in this chapter "(1) 'National group' means a set of persons whose identity as such is distinctive in terms of nationality or national origins from the other groups or sets of persons forming the population of the nation of which it is a part or from the groups or sets of persons forming the international community of nations. “(2) ‘Ethnic group' means a set of persons whose identity as such is distinctive in terms of its common cultural traditions or heritage from the other groups or sets of persons forming the population of the nation of which it is a part or from the groups or sets of persons forming the international community of nations. "(3) 'Racial group' means a set of persons whose identity as such is distinctive in terms of race, color of skin, or other physical characteristics from the other groups or sets of persons forming the population of the nation of which it is a part or from the groups or sets of persons forming the international community of nations. "(4) 'Religious group' means a set of persons whose identity as such is distinctive in terms of its common religious creed, beliefs, doctrines, or rituals from the other groups or sets of persons forming the population of the nation of which it is a part or from the groups or sets of persons forming the international community of nations. "(5) 'Substantial part' means a part of the group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a viable entity. |