"(6) 'Children' means persons who have not attained the age of eighteen and who are legally subject to the care, custody, and control of their parents or of an adult of the group standing in loco parentis.

"SEC. 1092. Genocide.

"(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 substantial 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;

"(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.

"(b) Whoever is guilty of genocide or of an attempt to commit genocide shall be fined not more than $20,000, or imprisoned for not more than twenty years, or both and if death results shall be subject to imprisonment for any term of years or life imprisonment. Whoever directly and publicly incites another to commit genocide shall be fined not more than $10,000 or imprisoned not more than five years, or both.

"(c) The intent described in subsection (a) of this section is a separate element of the offense of genocide. It shall not be presumed solely from the commission of the act charged.

"(d) If two or more persons conspire to violate this section, and one or more of such persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000 or imprisoned not more than five years or both.

"(e) The offenses defined in this section, wherever committed, shall be deemed to be offenses against the United States."

(b) The analysis of title 18, United States Code, is amended by adding after the item for chapter 50 the following new item:

"50A. Genocide

1091."

SEC. 2. The remedies provided in this Act shall be the exclusive means of enforcing the rights based on it, but nothing in the Act shall be construed as indicating an intent on the part of the Congress to occupy, to the exclusion of State or local laws on the same subject matter, the field in which the provisions of the Act operate nor shall those provisions be construed to invalidate a provision of State law unless it is inconsistent with the purposes of the Act or the provisions of it.

SEC. 3. It is the sense of the Congress that the Secretary of State in negotiating extradition treaties or conventions shall reserve for the United States the right to refuse extradition of a United States national to a foreign country for an offense defined in chapter 50A of title 18, United States Code, when the offense has been committed outside the United States, and

(a) where the United States is competent to prosecute the person whose surrender is sought, and intends to exercise its jurisdiction, or

(b) where the person whose surrender is sought has already been or is at the time of the request being prosecuted for such offense.

SECTIONAL ANALYSIS

SEC. 1 of the bill would add to title 18. United States Code, a new chapter 50A, Genocide, consisting of new sections 1091 and 1092:

Proposed section 1091 of title 18 contains definitions of some of the terms used in the Convention, in order to comply with the principle that criminal statutes should have a sufficient degree of certainty to make it clear without judicial interpretation just what acts are punishable.

Clauses (1)-(4) define the groups which the statute is intended to protect in terms of the characteristics which distinguish them from the rest of the population of the larger society of which they are a part. The larger society can be either a nation or the international community of nations.

Clause (5) defines "substantial part" in terms of its numerical significance to the group as a viable force. The term is used in proposed section 1092 defining the offense of genocide in order to comply with the understanding of the Senate Committee on Foreign Relations concerning the intent provision of Article II of the Convention. Senate Ex. Rep. 94-23, pp. 5–7.

Clause (6) defines children as dependent persons under 18 years of age. Proposed section 1092 of title 18 creates the crime of genocide, tracking substantially the language of the Convention, except for the use of the terms "without justifiable cause" and "substantial part", and except for subsection (a)(3), which defines genocide by "mental harm as the willful causing without justifiable cause of the permanent impairment of the mental faculties. "50A. Genocide

1091."

The term "without justifiable cause" is included to make it clear that certain acts, such as justifiable acts of war or acts done justifiably in self defense against domestic insurrection, do not constitute the crime of genocide.

The use of the term “substantial part” is explained in the discussion of clause (5) above.

The definition of genocide by "mental harm" complies with the second understanding of Senate Ex. Rep. 94–23. The definition also details precisely the means used to cause the impairment, in order to avoid a claim of impairment based on incidental or hypothetical mental harm. Not only must the act be willful and without justifiable cause, but it must be calculated to cause dysfunction. "Mental faculties" is amplified and focused in terms of mental processes, nervous system, and motor functions.

Genocide by killing and bodily harm use the Convention terminology entirely, since killing and assault are recognized crimes.

Subsection (a) (4) defines genocide by "inhumane treatment" and clarifies the ambiguity of the Conventions phrase "conditions of life.”

Subsection (a) (5) defines genocide by imposed birth control as the willful imposition of measures intended to prevent the natural group increase "as a means of effecting the destruction of the group as such."

Subsection (a) (6) defines genocide by repatriation as the willful and forcible transfer of the children of the group as a means of effecting the destruction of the group.

Subsection (b) proscribes attempted genocide and public incitement to genocide, in order to comply with Article III of the Convention. In this regard, it is unnecessary to proscribe complicity in genocide, as required by Article III, since this inchoate offense would be covered, 18 U.S.C. 2 (principals), and 18 U.S.C. 3 (accessory after the fact).

Subsection (b) also sets forth the penalties for genocide and related offenses. Like the penalties for violations of other criminal statutes, increased penalties are provided if death results.

Section 2 of the bill would provide that the remedies in it are the exclusive means of enforcing the rights based on it, thus excluding civil remedies, but would also express the Congressional intent not to preempt State law in the field.

Section 3 of the bill would express the sense of the Congress that extradition treaties negotiated (pursuant to Article VII of the Convention) shall provide protection for Americans against double jeopardy for genocidal acts committed abroad if they have been proceeded against in the United States or if the United States intends to exercise its jurisdiction. See Senate Ex. Rep. 94-23, pp. 11-12. This section is included because the draft statute would make it possible for the United States to assert jurisdiction over citizens of this country in cases of alleged genocide where the facts giving rise to the case took place outside United States territory. As a result it is possible that there may be situations where both the United States and another country will have jurisdiction to try someone for the sale alleged offense. The statutes of the United States are not directed to the issue of who exercises jurisdiction, but leave the answer to the text of the extradition treaty involved. 18 U.S.C. 3184. See, for example, Treaty of Extradi

tion with Brazil, 15 U.S.T. 2094, Art. V., which is the source of the language for this section. The Secretary of State is directed to ensure that future extradition treaties which treat genocide as an offense for which extradition may be granted shall reserve to the United States in cases where double jurisdiction exists the right to try its own citizens rather than grant extradition. Clause (b) of the section is, as a matter of policy, presently included in all extradition treaties. Senator STONE. Please proceed, Mr. Hansell.

PROSCRIPTION AGAINST INCITEMENT TO COMMIT GENOCIDE

Mr. HANSELL. It has been said that the proscription in article III of the Convention against direct and public incitement to commit genocide is a restriction on free speech. But direct and public incitement to crime is not protected by the constitutional guarantee of free speech. As this committee heard in 1970 from William Rehnquist, now Associate Justice of the Supreme Court and at that time an Assistant Attorney General, the constitutional guarantee of free speech would not be and could not be adversely affected in any way by the terms of this Convention. In 1969, in the case of Brandenburg v. Ohio, 395 U.S. 444, the Supreme Court reaffirmed that even advocacy of force is protected unless it is directed to inciting lawless action and is likely to produce it.

CONVENTION'S EFFECT ON STATE LAW AND CONGRESS POWERS

It has also been asked whether State law will be overridden by the terms of the Convention. Nothing in this Convention overrides State law. The proposed implementing legislation, if enacted, would expressly clarify that Congress does not intend to occupy the field, and would confirm that State laws not inconsistent with the legislation are not invalidated.

Question has been raised as to whether the Convention will enlarge the powers of the Congress. Once again, neither the Convention nor the implementing legislation contains any provisions which could have such an effect. Certainly the Congress can legislate the crime of genocide without the Convention. Under article I, section 8, clause 10 of the Constitution, the Congress is empowered, "to define and punish offenses against the law of nations." Approval of the Convention will under article V thereof require the Congress to exercise powers it already possesses, but does not enlarge those powers.

POSSIBILITY OF SPURIOUS CHARGES AND WARTIME COMBAT

It has been suggested that if the United States adheres to the Convention, we would be confronted with spurious charges of genocide arising out of racial and religious discrimination; it has also been asked whether wartime combat might result in charges of genocide. Mr. Chairman, loose charges of genocide are not valid under the terms of the Convention, which require the intent to destroy an entire group. This is a critical and essential element. I might say parenthetically it distinguishes the crime of homicide from the crime of genocide.

The requirement of intent to destroy a group as such distinguishes killing or wounding in combat from genocide.

Senator STONE. How? How does it?

Mr. HANSELL. The requirement of intent to destroy the group, of course, is an essential element and the criminal act that is involved must be undertaken in a way that would be intended to affect a substantial part of the group.

Senator STONE. And in combat?

Mr. HANSELL. In combat the killing and wounding would be directed, of course, against the opposition forces, but not the ethnic or national group, as such.

POSSIBLE USE OF INTERNATIONAL TRIBUNALS

There has also been some discussion about the 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 peñal 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.

QUESTION OF EXTRADITION

I want to address the question of extradition, in view of some complexities involved and in order to allay 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 grounds 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. Now the Genocide Convention is not an extradition treaty. The convention simply contemplates that the crime of genocide would 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.

Senator CASE. Excuse me, Mr. Secretary, but do you seriously mean that under the terms of the convention the only effect is to add genocide to the crimes for which extradition is permitted by preexisting law? Senator STONE. It does not even do that, Senator Case, according to what he just said. All it says is that when and if we modify our extradition treaties or make new ones, the State Department, or whoever are our negotiators, could legally include extradition in any such

new or revised treaties. But by ratifying the convention now, as I understand what you have just said, it would not be an extraditable offense per se yet to any country. Is that right?

Mr. HANSELL. That is correct, sir.

Senator CASE. What would have to happen to make it extraditable? Mr. HANSELL. We would have to negotiate a new or amend an existing extradition treaty, Senator, to add genocide as one of the crimes. Senator CASE. Would we be obliged to do that as a commitment? Mr. HANSELL. Yes, as a commitment.

Senator CASE. We are agreeing to do it. Isn't this, then, a bit of a quibble?

Mr. HANSELL. I think that the distinction is more than a quibble because of the concern

GIVING UP CLARITY OF EXPRESSION QUESTIONED

Senator CASE. Excuse me, I am not unfriendly at all, but I am not, either, altogether over the line of concern. The idea that words do not really mean what they say to get some kind of public relations job done still does not appeal to me enormously. I happen to be one of those who for a long time was against racism, against the destruction of peoples. I don't have to apologize for my record in that regard, and I don't. It's just that this is a thin area the same way that the Nuremburg thing was. It makes a person trained in "orthodox," if you will, or old-fashioned jurisprudence very uneasy. I have to know as much as I can about what I am doing before I am going to be persuaded that this does not mean what it says.

That is the bad thing about any kind of language, because it can be taken by other peoples and used worldwide in the meaning they prefer to ascribe to it, and this country can be done no good by that, even though we may not voluntarily give up any American citizen for trial in courts that do not recognize fundamental rights, such as due process and the like.

Please don't let me interrupt you. I just want you to know that I am not one who has taken the pledge here with any happiness at all. I am still debating in my mind whether what we are giving up in the way of clarity of expression, in the way of general true understanding among people as to what we mean, is not more than the candle is worth.

Go ahead, please. I just wanted you to share with me the trouble I have. I don't like to have it suggested that this is truly a matter of people who are bigoted. We have fought too hard in the West, especially in this Anglo-Saxon jurisprudence area, for the rights we have, the great writ and all the rest of them, to easily give them up for the sake, as I said, of a "public relations" operation. We don't need that. We don't have to persuade ourselves or the people of the world that we are against genocide.

TWO-STEP EXTRADITION PROCESS

Mr. HANSELL. Senator, I think that I can certainly speak for all of us here in saying that we understand that there are genuine and deeprooted questions and concerns about the impact and meaning of the treaty, and these comments are directed toward an effort to explain