In addition the implementing legislation which we contemplate would clearly incorporate the understanding by providing that the genocidal action must be committed in such a manner as to affect a substantial part of the group concerned.

9. Objection, "The duty and the power to prosecute and punish criminal homicides, assaults, and batteries, and kidnappings covered by the Convention would be forthwith transferred from the states which have always had such duty and power in respect to these crimes to the federal government."

Article II. In order for genocide to be committed, an act must be directed against the individuals involves qua members of a particular group, and there must be a specific intent to destroy the group as such in whole or in part. Moreover, under the proposed understanding a substantial part of the group has to be affected. This is not the ordinary homicide case, and the Government does not intend to institute prosecutions for genocide in ordinary homicide cases.

12. Objection. "The Convention would impose upon the United States the duty to prevent and to prosecute and punish officials and individuals who cause 'mental harm to members' of the groups mentioned in the Convention. What mental harm and what psychological acts or omissions are made punishable?" Answer. "Mental harm" means permanent impairment of mental faculties. This construction, which is consistent with the drafting history of the Convention, has been adopted by the Senate Foreign Relations Committee in its proposed understanding:

"That the U.S. Government understands and construes the words 'mental harm' appearing in article III (b) of this convention to mean permanent impairment of mental faculties."

The understanding will, of course, be reflected in the implementing legislation. Thus, before a charge can be sustained, it must be proved that permanent impairment of mental faculties in fact occurred and that the defendant brought about this injury with the specific intent of destroying one of the protected groups. Thus, the standard is rigid enough to protect against frivolous allegations of genocide.

13. Objection. "The Convention imposes the duty to punish any one who deliberately inflicts 'on the group conditions of life calculated to bring about its physical destruction in whole or in part.' Does this mean that a county official who refuses to give a member of a group the amount of welfare benefits deemed desirable can be punished for genocide. Does it means that the Court of International Justice shall have power to judge the adequacy of welfare benefits awarded by Congress or a State Legislature?"

Answer. Article II (c) of the Convention provides that one of the ways of committing genocide is by "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." This provision is aimed at conditions of life inflicted upon the group which are meant to cause death or grave bodily injury. Generally speaking. the provision covers "slow death" measures which are imposed on a group, as, for example in a concentration camp. See P. Drost, The Crime of State-Genocide, pp. 86-87 (1959). Denial of adequate welfare benefits is of a completely different character than oppressive measures calculated to bring about slow death. In addition, the requisite intent to destroy in whole or in part the members of a group (see answer 11) would be lacking.

14. Objection. "The Convention makes any official or individual punishable for 'direct and public incitement to commit genocide.' Does this mean that if a member of Congress justifies the action of Jews of killing Arabs in the Middle East that he can be prosecuted for genocide? What about free speech?"

Answer. Under the United States Constitution, while direct and public incitement to commit illegal activity is not protected, merely to argue a position concerning international relations or even to advocate illegal activities is protected by the first amendment. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Incitement crosses the bounds between protected and unprotected speech. The provision of the Genocide Convention therefore does not violate the Constitution. Moreover, were there any conflict, the first amendment clearly would control. Reid v. Covert, 354 U.S. 1 (1957). It is clear therefore that because of the protection provided by the first amendment any person may state his convictions regarding the situation in the Middle East. In addition, we note that under

Article I, Section 6, of the U.S. Constitution no member of Congress may be questioned in any other place for any speech or debate in either House; members of Congress are thus, of course, free fully to express their views in the Congress.

15. Objection. "The provisions of the Genocide Convention would immediately supersede all state laws and practices inconsistent with them, and nullify all provisions of all acts of Congress and prior treaties inconsistent with them. Thus, the Connally Reservation and the Vandenberg Reservation to the Jurisdiction of the International Court of Justice would be voided."

Answer. It is true that the Genocide Convention would override inconsistent state laws, acts of Congress, or treaties. However, it is difficult to conceive of any state or federal laws inconsistent with a prohibition of the crime of genocide. We know of no such laws, but if any existed we do not believe that any member of Congress would argue for their maintenance. At any rate, the Convention does not nullify the Connally or Vandenberg reservations. The Connally amendment, or self-judging aspect of our domestic jurisdiction reservation, could be employed to prevent the International Court of Justice from deciding a case brought against the United States based on our acceptance in 1946 of compulsory jurisdiction with regard to any international legal dispute under paragraph 2 of Article 36 of the Court's Statute. The Vandenberg reservation, or multilateral treaty reservation, could prevent jurisdiction under the same paragraph of the Statute in cases arising out of a multilateral treaty where all the parties affected by the decision are not parties to the case or the United States has no specifically agreed to jurisdiction. These reservations could not, however, be invoked under Article IX of the Genocide Convention, which provides that parties may bring disputes concerning the interpretation, application, or fulfillment of the Convention to the Court, since the basis for the Court's jurisdiction would be paragraph 1 of Article 36 of the Statute, which gives the Court jurisdiction to decide legal disputes "specifically provided for . . . in treaties and conventions in force.” Article IX of the Convention thus has the effect of avoiding the application of the reservations in the extremely small class of potential cases that may arise from unresolved differences over the interpretation, application, or fulfillment of the Convention.

THE LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, Washington, D.C., June 9, 1976.

To: Senate Foreign Relations Committee.
From: American Law Division.

Subject: Multilateral treaties relating to crimes under international law.

This memorandum is submitted in response to your request for a listing of multilateral treaties to which the United States is a party and which provide for crimes punishable under international law. While each of the treaties or conventions listed below define the crimes contained therein, and as such might be considered crimes under international law, the responsibility for punishment of such crimes is, almost universally, assigned to each contracting State to be effectuated within its own domestic jurisdiction:

Convention for the suppression of unlawful seizure of aircraft (hijacking). 22 U.S.T. 1641; TIAS 7192 Done at The Hague, December 16, 1970; entered into force for the United States, October 14, 1971. As of January 1, 1976, 75 States were parties to this convention.

Convention for the suppression of unlawful acts against the safety of civil aviation (sabotage). Done at Montreal, September 23, 1971; entered into force for the United States, January 26, 1973. 24 U.S.T. 564; TIAS 7570. As of January 1, 1976 65 States were parties to this convention.

Convention relating to the suppression of the abuse of opium and other drugs. Signed at The Hague January 23, 1912: entered into force for the United States February 11, 1915. 38 Stat. 1912; TS 612; 1 Bevans 855.

Protocol amending the agreement, conventions, and protocols on narcotic drugs concluded at The Hague on January 23, 1912, at Geneva on February 11, 1925, and February 19, 1925, and July 13, 1931, at Bangkok on November 27, 1931, and at Geneva June 26, 1936. Done at Lake Success, New York, December 11, 1946. Protocol entered into force for the United States August 12, 1947, 61 Stat. 2230; 62 Stat. 1796; TIAS 1671, 1859; 4 Bevans 267; 12 UNTS 179.

Protocol bringing under international control drugs outside the scope of the Convention of July 13, 1931, for limiting the manufacture and regulating the distribution of narcotic drugs, as amended by the protocol signed on December 11, 1946. Done at Paris November 19, 1948; entered into force for the United States September 11, 1950. 2 U.S.T. 1629; TIAS 2308; 44 UNTS 277.

Convention on offenses and certain other acts committed on board aircraft. Done at Tokyo September 14, 1963; entered into force for the United States December 4, 1969. 20 U.S.T. 2941; TIAȘ 6768; 704 UNTS 219. As of January 1, 1976, 79 States were parties to this Convention.

Convention to suppress the slave trade and slavery. Concluded at Geneva September 25, 1926; entered into force for the United States March 21, 1929. 46 Stat. 2183; TS 778; 2 Bevans 607. As of January 1, 1976, 105 States were parties to this Convention.

MOSES L. PERRY, JR.,

Legislative Attorney.

CHAPTER IV. HUMAN RIGHTS1

CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
ADOPTED BY THE GENERAL ASSEMBLY OF THE UNITED NATIONS ON 9 DECEMBER 1948

Entry into force: 12 January 1951, in accordance with article XIII.
Registration : 12 January 1951, No. 1021.

Text: United Nations, "Treaty Series," vol. 78, p. 277.

2

1 For other multilateral treaties concluded in the field of human rights, see chapters V, VII, XVI, XVII and XVIII.

2 Resolution 260 (III), see "Official Records of the General Assembly, Third Session," Part I (A/810), p. 174.

2 In a notification made on ratification, the Government of Australia extended the application of the Convention to all territories for the conduct of whose foreign relations Australia is responsible.

3 Notification of succession.

In a notification received by the Secretary-General on Mar. 13, 1952, the Government of Belgium extended the application of the Convention to Belgian Congo and the Trust Territory of Ruanda Urundi.

5 Ratified on behalf of the Republic of China on July 19, 1951. See note concerning signatures, ratifications, accessions, etc. on behalf of China, preface, p. iii.

6 In a note accompanying the instrument of accession, the Government of the Federal Republic of Germany stated that the Convention would also apply to Land Berlin.

With reference to the above-mentioned declaration, a communication from the German Democratic Republic was received by the Secretary-General on Dec. 27, 1973. The text of the communication is identical, mutatis mutandis, to that published in footnote 3, 4th paragraph, p. 52.

In this connexion, the Secretary-General received from the Governments of France, the United Kingdom of Great Britain and Northern Ireland and the United States of America (June 17, 1974 and July 8, 1975), the Federal Republic of Germany (July 15, 1974 and Sept. 19, 1975), the Union of Soviet Socialist Republics (Sept. 12, 1974 and Dec. 8, 1975), and the Ukrainian Soviet Socialist Republic (Sept. 19, 1974), communications identical in essence, mutatis mutandis, to the corresponding one repreduced in footnote 3, p. 52.

7 See note 4b, p. 54.

8 In a notification made on accession, the Government of the United Kingdom extended the application of the Convention to the following territories for whose conduct of international relations the United Kingdom is responsible: Channel Islands, Isle of Man; Dominica, Grenada, St. Lucia, St. Vincent; Bahamas, Bermuda, British Virgin Islands, Falkland Islands and Dependencies, Fiji, Gibraltar, Hong Kong, Pitcairn, St. Helena and Dependencies, Seychelles, Turks and Caicos Islands. In a notification received by the Secretary-General on June 2, 1970, the Government of the United Kingdom extended the application of the Convention to the Kingdom of Tonga for whose international relations the United Kingdom is or was then responsible.

Albania

DECLARATIONS AND RESERVATIONS 3

As regards article IX: The People's Republic of Albania does not consider as binding upon itself the provisions of article IX which provides that disputes between the Contracting Parties with regard to the interpretation, application and implementation of the Convention shall be referred for examination to the International Court at the request of any party to the dispute. The People's Republic of Albania declares that, as regards the International Court's jurisdiction in respect of disputes concerning the interpretation, application and implementation of the Convention, the People's Republic of Albania will, as hitherto, maintain the position that in each particular case the agreement of all parties to the dispute is essential for the submission of any particular dispute to the International Court for decision.

As regards article XII: The People's Republic of Albania declares that it is not in agreement with article XII of the Convention and considers that all the provisions of the Convention should extend to Non-Self-Governing Territories, including Trust Territories.

Algeria

The Democratic and Popular Republic of Algeria does not consider itself bound by article IX of the Convention, which confers on the International Court of Justice jurisdiction in all disputes relating to the said Convention.

The Democratic and Popular Republic of Algeria declares that no provision of article VI of the said Convention shall be interpreted as depriving its tribunals of jurisdiction in cases of genocide or other acts enumerated in article III which have been committed in its territory or as conferring such jurisdiction on foreign tribunals.

International tribunals may, as an exceptional measure, be recognized as having jurisdiction, in cases in which the Algerian Government has given its express approval.

The Democratic and Popular Republic of Algeria declares that it does not accept the terms of article XII of the Convention and considers that all the provisions of the said Convention should apply to Non-Self-Governing Territories, including Trust Territories.

Argentina

Ad article IX: The Argentine Government reserves the right not to submit to the procedure laid down in this article any dispute relating directly or indirectly to the territories referred to in its reservation to article XII.

Ad article XII: If any other Contracting Party extends the application of the Convention to territories under the sovereignty of the Argentine Republic, this extension shall in no way affect the rights of the Republic.

Bulgaria

As regards article IX: The People's Republic of Bulgaria does not consider as binding upon itself the provisions of article IX which provides that disputes between the Contracting Parties with regard to the interpretation, application and implementation of the present Convention shall be referred for examination to the International Court at the request of any party to the dispute, and declares that, as regards the International Court's jurisdiction in respect of disputes concerning the interpretation, application and implementation of the Convention, the People's Republic of Bulgaria will, as hitherto, maintain the position that in each particular case the agreement of all parties to the dispute is essential for the submission of any particular dispute to the International Court for decision.

As regards article XII: The People's Republic of Bulgaria declares that it is not in agreement with article XII of the Convention and considers that all the provisions of the Convention should extend to Non-Self-Governing Territories, including Trust Territories.

3 For objections by certain States to some of these reservations, see p. 101.