There is no better or more succinct review of the status of the Convention than as set forth in the Committee's 1976 report. That report includes three understandings and one declaration, which are also included in the ABA's resolution of approval. Attached to the Committee's report is the implementing legislation proposed in accordance with Article V of the Convention. I see no problem concerning this legislation and I understand none has been suggested. Everything that can be said on the constitutional question has been fully discussed in all these hearings and Committee reports. To save time and to avoid unnecessary repetition, I am not repeating these legal arguments. It is difficult to take seriously any basic constitutional objection to the Convention. It is conceivable, though it has not been urged, that there are public policy objections to ratification. But it would be hiding behind a false front to fail to ratify on spurious constitutional grounds. As noted in the Committee's last report, no fewer than 82 members of the United Nations (perhaps 83 depending on how China's accession is viewed) have become parties to the Convention. Although the United States was a leader in drafting and securing its adoption in the United States in 1948, it is the outstanding laggard in ratifying it. Its failure to ratify borders on constituting a national disgrace. As the late Chief Justice Earl Warren said in December, 1968, "We as a nation should have been the first to ratify the Genocide Convention... Instead we may well be the last ...” Since the Committee's 1976 report, a new President of the United States has come into office. President Carter has followed all of his predecessors from Truman through Eisenhower, Kennedy, Johnson, Nixon and Ford in support of America's furthering the cause of international human rights, including ratifying the Genocide Convention. As President Carter stated on March 17th to the United Nations: “Ours is a commitment, and not just a political posture . . . To demonstrate this commitment . . . I will work closely with our own Congress in seeking to support the ratification . . . of the United Nations Genocide Convention." The legal obligation with respect to human rights is thus noted by Philip C. Jessup, former member of the International Court of Justice: "It is already law at least for members of the United Nations, that respect for human dignity and fundamental human rights is obligatory. The duty is imposed by the Charter, a treaty to which they are parties." Certainly nothing is more basic to this obligation which the United States assumed when it ratified the U.N. Charter, than to outlaw mass murder of a national, ethnic, racial or religious group, as such, whether committed in time of peace or war. I have especially referred in this statement to the endless hearings through which this Committee has sat to emphasize the need to fish or cut bait. The Committee has certainly exhibited great courtesy as well as extreme patience over the years in allowing anyone and everyone to express his or her views on the subject. As it said in 1976, "further hearings on the treaty were not warranted in view of the voluminous record made in hearings in 1950, 1970 and 1971." There appears no provision in the Convention that would support a successful attack on constitutional grounds. No objections asserted on a legal basis justifies delaying ratification. Any conceivable uncertainty as to a few phrases has been cured by the understandings. If there are justifiable reasons of national policy for not ratifying, they have not been advanced. The one new fact to be noted since the last hearing is the favorable action of the American Bar Association. And that has now been recorded. Each time the Committee has acted it has reported the Convention favorably. But each time it has reached the Senate floor, an actual or threatened filibuster has prevented the Senate from voting to support a commitment we made on December 9, 1948, when we approved the treaty in the United Nations. It is already past the time to sign on the dotted line. The United States is now reestablishing its moral leadership in the world. If it now ratified this Convention, it would be a clear demonstration that it is faithful to its pledge under the U.N. Charter. It would also be acting in its own best national interest. 4. That the U.S. Government declares that it will not deposit its instrument of ratification until after the implementing legislation referred to in article V has been enacted, be it for the Resolved, That the President of the American Bar Association or his designee is hereby authorized to present the views of the Association as herein expressed before the appropriate committees of the Congress and other agencies of the Government of the United States. REPORT 2 Summary of provisions of the convention Article I Genocide is a crime under international law, whether committed during peace or war. The contracting parties undertake to prevent and punish such a crime. Article II Acts constituting Genocide are those committed "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such" by: (a) "Killing members of the group"; (b) "Causing serious bodily or mental harm to members of the group"; (c) "Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part"; (d) "Imposing measures intended to prevent births within the group"; (e) "Forcibly transferring children of the group to another group." Article III Acts which are punishable are: (a) Genocide (b) Conspiracy to commit Genocide (c) Direct and public incitement to commit Genocide (d) Attempt to commit Genocide (e) Complicity in Genocide. Article IV Persons committing Genocide shall be punished, whether constitutionally responsible rulers, public officials or private individuals. Article V The contracting parties shall enact the necessary implementing legislation to enforce provisions of the Convention. Article VI Persons charged with a violation of the Convention are to be tried by a competent tribunal in the state where the act was committed or by an international penal tribunal having jurisdiction of the parties. Article VII For the purposes of extradition Genocide is not to be considered a political crime. Extradition shall be granted by the contracting parties in accordance to their laws and treaties in force. Article VIII Any contracting party may call upon the competent organ of the United Nations for action where appropriate to carry out the purport of the Convention. Article IX Disputes relating to "interpretation, application or fulfillment" of provisions of the Convention including those relating to the resonsibility of a state for Genocide or other acts punishable by the Convention shall be submitted to the International Court of Justice at the request of the disputing parties. DISCUSSION The purpose of the Convention is to make Genocide an international crime whether committed during peace or war. It seeks to prevent and punish when 2 In preparation of this report the Section considered the testimony presented at the Hearings on Genocide before the Subcommittee of the Senate Committee on Foreign Relations in 1950, the Senate Committee's Report of Dec. 8, 1970, May 4, 1971, and Mar. 6, 1973 as well as previous reports of other sections and committees of the American Bar Association and other pertinent material including a Report In Support Of The Treaty Making Power of the United States in Human Rights Matters prepared by the Special Committee of Lawyers of the President's Commission for the Observance of Human Rights Year 1969. (See app. 18, House Foreign Affairs Subcommittee Hearings August-December 1973). it occurs the destruction, in whole or in part, of a national, ethnical, racial or religious group as such. The Convention defines Genocide, specifies the acts which constitute Genocide, sets forth the obligations of the parties, the place of trial of the accused, and provides for submission of disputes relating to interpretation, application or fulfillment to the International Court of Justice. The first Understanding makes it clear that where the words 'intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such" are used in the definition of the crime of Genocide that it means an intent to destroy by such acts in such a way as to affect a "substantial" part of the group concerned. The second Understanding states that where the word "mental harm” is used to define a punishable act, it means a "permanent impairment of mental faculties." It does not include violent expressions of prejudice against individual members of groups. It also would discourage any frivolous allegations of mental harm. The third Understanding is to take care of the situation where a national of the United States committed an act outside of the state. Pursuant to this understanding the U.S. will have the right to bring to trial before its own tribunals any of its nationals for acts committed. There has been considerable discussion regarding the Convention from the viewpoint of extradition. It should be understood that the Convention itself is not an extradition treaty. The Convention is not self-executing but requires necessary implementing legislation. The recommended Declaration makes it clear that we must enact necessary federal legislation pursuant to our constitutional procedure prior to depositing our instrument of ratification. Attached hereto as Appendix A is a copy of Senate Executive Report 93-5, 93rd Cong. 1st Sess., (1973). This Report lists the pertinent provisions of the Convention and gives an interpretation of each provision based upon the testimony offered at the earlier hearings. A copy of the Convention will also be made available to any interested party. CONCLUSION Eight-two nations to-date have ratified and/or acceded to the Genocide Convention. The world community has, therefore, defined Genocide as "a crime against the laws of nations". The United States is a party to other treaties that define and establish an international crime. (The Geneva Conventions On Protection Of War Victims, 1949, TIAS 3362-3365; The Conventions For The Regulation of Whaling, 1935, TS 880, 1946, TIAS 1849; the International Convention for the Prevention of the Pollution of the Sea by Oil, 1954, TIAS 4900 and the Single Convention On Narcotic Drugs, 1961, TIAS 6298.) Statements made in the past and raised in the Senate and the ABA House of Delegates are no longer pertinent. The passage of time has confirmed that Genocide is a matter of "international concern" which should be regulated as an international crime. Acceding to the Convention at this time is a positive step in the national interest of our country. The American Bar Association should come forward and place on record its positive support. This resolution was overwhelmingly approved by the Council of the Section of International Law at its Mid-Winter Meeting on December 5–7, 1975. Respectfully submitted, February, 1976. RICHARD P. BROWN, Jr., Chairman, Section of International Law. Senator SARBANES. Thank you very much, Mr. Bitker. Senator CASE. Thank you, Mr. Chairman, but no, I don't have anything to say. COMMENDATION OF MR. BITKER It is nice to see you again, Mr. Bitker. If we should ratify this convention this time, one of the not inconsiderable reasons that I would regret it would be the fact that we would not have a chance to hear from you on this matter on more or less regular occasions. 2 53 BITKER. That is very kind of you, Senator Case, though I hope ill be no more regular occasions. nt to say that I have a commitment from Senator Proxmire that this is voted on favorably in the U.S. Senate I will have a front t in the audience's gallery. tor CASE, You are entitled to the place of honor. BITKER. Thank you. ABA ROLE IN RATIFICATION OF CONVENTION tor SARBANES. Mr. Bitker, I have a question. I am one who spent time when I was in college studying about our failure to move d with the Genocide Convention. tor CASE. As recently as that? eral laughter.] tor SARBANES. College was a long time ago for me. eral laughter.] tor SARBANES. One of the things that has always been used very ely by the opponents of ratifying the convention has been the n of the American Bar Association. It has really been an appeal dy which commands considerable stature and prestige in this which they have been able to make. As you point out in your ent, that has been removed. I am really wondering how active a - can expect the ABA to take with respect to the ratification of aty, and if there is an action program on the part of the ABA d above simply the endorsement which has now been given. BITKER. I hope and expect, Mr. Chairman, that the ABA will active interest in this. The very fact that it has sent me here ndicates that it wishes to be recorded beyond the mere action t took in February, 1976. tor SARBANES. Can we anticipate that there will be some effort all of your chapters across the country to communicate with presentatives in the Congress? BITKER. I hope that this might be accomplished. tor SARBANES. I think that would be very helpful. I do think stion which they have taken is very important. I know how of a role you have played in that and I want to echo the other nts of the members of the committee in thanking you for that BITKER. Thank you, Senator Sarbanes. tor SARBANES. Senator Javits, do you have anything further? tor JAVITS. Yes, I do, Mr. Chairman. Thank you. COMMENDATION OF MR. BITKER AND SENATOR PROXMIRE Bitker, first I would like to thank you for being one of our on this particular issue. Second, I was not here when my beloved e and friend, Bill Proxmire, testified. I would like to thank being one of the heroes of this struggle, which he has carried years. I know better than anybody in the Senate how frustratas been. Nonetheless he has persisted and with his characterisility he has always been more than willing to take a back seat as his voice was heard, notwithstanding also the fact that he is his committee, though he is one of our very eminent Sentaors. PRESIDENT'S SUPPORT URGED I say that because I hope very much that the President may be inspired by the bar association, by the State Department, and by us, to make this his No. 1 example of human rights. There is no greater human right than the right to life and the right to a free opportunity to live that life. There is nothing that is more characteristic of the repression which is the antithesis of human rights than genocide. I hope very much, therefore, and I would like to reiterate this again and again, that I believe there is a good chance-I don't want to fix any burden on the President that no man can carry-but I believe there is a good chance that a new President really giving this top priority could win us the very few votes that are needed to close off debate. I hope very much that the President will do that and that the American Bar Association, like the Department of State, will make the President feel that this deserves that kind of attention from him, deserves using up some credit. Senator SARBANES. I might just interject there that we have just received from the President a communication to the Senate in which he throws his support behind the ratification. Senator JAVITS. That's wonderful, Senator. Is that in the record? Senator SARBANES. Not yet. Senator JAVITS. May I have the honor of putting it in the record? Senator SARBANES. Yes, indeed. Senator JAVITS. Thank you very much, Mr. Chairman. Senator SARBANES. Without objection, it will be included in the record at this point. [The information referred to follows:] To the Senate of the United States: I am honored to have the privilege of recommending to the Senate that it approve the Convention on the Prevention and Punishment of the Crime of Genocide. This Convention was initially drafted in the wake of wanton acts committed by some of our enemies during the Second World War. With the strong support of the United States, the Convention was unanimously adopted by the United Nations General Assembly on December 9, 1948. The Convention, which now has 83 parties, provides that genocide consists of acts intended to destroy a national, ethnic, racial, or religious group as such. The parties to the Convention undertake to establish genocide as a criminal behavior under their own legal systems. The Convention thus protects the most fundamental of all human rights-the right to live-and it creates an essential limit on the actions governments may appropriately take with respect to the people they govern. The right to life was initially proclaimed for this nation in the Declaration of Independence. The promise of the Declaration was to portect that right by instituting a new and democratic government in America. Today it is important that this nation assist the world community to protect the right to life internationally. The Genocide Convention has been recommended by a succession of Presi dents, with specific endorsement by the Departments of State, Defense and Justice. It also has the support of many of our distinguished citizens and organi zations, including the American Bar Association. I urge the Senate to give its advice and consent to the ratification of the Convention. Ratification would be a significant enhancement of the human rights commitments of this nation, demonstrating again to the world in con. crete fashion our determination to advance and protect human rights. The White House, May 23, 1977. JIMMY CARTER. |