and contribute to understanding and reassurance as to what the treaty does and does not do. It was only in that spirit that the explanation of the distinction between this treaty and extradition treaties seemed to be useful. There is a two-step process involved. The Genocide Convention, if enacted, would then contemplate amendment of the extradition treaties, but the second step would be essential in order to provide for extradition by reason of the crime of genocide.

Senator STONE. Please proceed, Mr. Hansell.

Mr. HANSELL. Thank you.

Senator CASE. Excuse me, but of course any amendments to these treaties, new treaties on this point, would have to be ratified by the Senate under our constitutional provisions.

Mr. HANSELL. Yes, indeed, sir.

Senator CASE. May I put on the record one more thing and then I will not interrupt you any more.

MORE INVOLVED THAN FORM OF WORDING

More is involved, too, than a form of wording. You can have exactly the same provisions for trial by jury, for habeas corpus, even, if you will, for all kinds of things, but not have the spirit of independence and true concern for individual rights, which comes only with a tradition developed as ours has been in the West. Mere agreement on a form of wording is not going to satisfy me either. We have to do more than that, and due process means more than that. It means not just that the law of a country must provide for these things and state that freedom of speech, freedom of religion, freedom of movement and all the rest shall not be abridged. There has to be an understanding of what those words mean in the first place which is roughly the same as ours. There has to be a spirit of independence in the judiciary of the country where these words are interpreted and in the government, so that they can in practice provide the kind of constitutional protections in which we believe.

Senator STONE. In other words, Senator Case, what you are trying for is a legal expression by the Senate that where there will be extradition, it will have to be only to a system of trial and fairness at least the equal of our own. You are unwilling to let extradition happen to societies that may have extradition rights with us on other types of offenses, but who could make political or show trial use of this kind of situation in a spirit and in a procedure less than ours.

Senator CASE. I do mean that, and for this or for any other crime. There is no qualification.

I am not a scholar on these matters. It could possibly be pointed out that this already has been violated in many other extradition treaties. If so, that does not reconcile me to this one, or to them. I will not consciously as a member of the Senate approve any treaty that has that effect.

I am so much obligated to you for letting me intervene. I am sorry. Please go ahead.

Senator Stone. Mr. Hansell, please proceed.

Mr. HANSELL. Mr. Chairman, there are a few additional remarks remaining in my prepared statement, but I know that the committee has another session shortly.

Senator STONE. Very well, if it is all right with you, sir, we will include your prepared remarks in the record and will proceed with our questions.

Mr. HANSELL. I would be pleased to do that. We will submit the statement for the record.

Senator STONE. Thank you very much. It will be included in the record.

[Mr. Hansell's prepared statement follows:]

PREPARED STATEMENT OF HERBERT J. HANSELL, LEGAL ADVISER, DEPARTMENT OF STATE

Mr. Chairman and members of the committee: I am very grateful for this opportunity to testify in support of the Convention on the Prevention and Punishment of the Crime of Genocide, or "Genocide Convention," as it is generally known. In coordination with the testimony by Deputy Secretary Christopher, I should like to focus on some questions that have been raised about the Convention, and various legal criticisms that have been directed against it.

Perhaps most fundamentally, it has been argued that genocide is not a proper subject for treaty making, and is essentially a subject within the domestic jurisdiction of states. But I believe 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 a party to this Convention, and clearly these nations believe 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 by 88-0 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 President Carter said in his speech to the United Nations two months ago:

All the signatories of the UN 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.

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 such terms as "mental harm," and the phrase "intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such."

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 the 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 diverted to inciting lawless action and is likely to produce it.

It has also been asked whether state law will be overridden by the terms of the Convention. However, nothing in the 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 legisJation contain any provisions which could have such an effect. Certainly the Congress can legislate the crime of genocide even without the Convention. Under Article I, § 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 require the Congress to exercise powers it already possesses, but does not enlarge those powers.

It has been suggested that if the United States adheres to the Convention, we will be confronted with spurious charges of genocide arising out of racial and religious discrimination; it also has been asked whether war-time combat might

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 trial 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 obligation— though 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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