March 24, 1971
Page 7697
THE GENOCIDE CONVENTION – STATEMENT OF HON. ARTHUR GOLDBERG
Mr. MUSKIE. Mr. President, more than 20 years have passed since the United States signed the Genocide Convention. Since that time, 75 other nations have signed and ratified this document.
The failure of the United States to ratify the Genocide Convention is an omission which should be rectified immediately.
Since 1949, when the American Bar Association first recommended that the United States not ratify this convention, a number of arguments have been offered in support of this position.
An extremely cogent analysis and rebuttal of these arguments was presented to the Senate Foreign Relations Subcommittee on the Genocide Convention on March 10, 1971, by the Honorable Arthur Goldberg. I ask unanimous consent that the full text of Mr. Goldberg's remarks be printed in the RECORD following my remarks.
As a former Justice of the Supreme Court and U.S. Ambassador to the United Nations, Mr. Goldberg speaks with considerable expertise on questions of constitutional and international law raised by the Genocide Convention.
In a careful analysis of these questions, he finds the objections to ratification of the Genocide Convention to be "without substance."
On the other hand, he finds – and I agree – that the arguments for ratification of this treaty are "compelling." To quote from his testimony–
Our adherence to the Genocide Convention can make a practical contribution to the long and difficult process of building a structure of international law based on principles of human dignity.
I myself have no doubts that the Senate should ratify the Genocide Convention. However, had I any questions, Mr. Goldberg's testimony would have clarified many of them. For this reason, I urge Senators to make a careful review of these remarks.
There being no objection, the statement was ordered to be printed in the RECORD, as follows:
STATEMENT OF HON. ARTHUR J. GOLDBERG
I am grateful for the opportunity to testify before this Subcommittee on behalf of the Genocide Convention. I am appearing on behalf of the Ad Hoc Committee on Human Rights and Genocide Treaties, a committee of 52 national organizations whose total membership is in the millions.
The purpose of the Ad Hoc Committee is to strengthen international law in the field of human rights by encouraging U.S. ratification of appropriate United Nations conventions, including in particular the Genocide Convention. A list of the organizations comprising the Ad Hoc Committee is contained at the end of my testimony.
I am accompanied today by Professor Richard N. Gardner of Columbia Law School, who appeared for the Ad Hoc Committee in your hearings on the Genocide Convention last year.
I do not wish to repeat today all the arguments this committee has already heard on behalf of the Genocide Convention. But permit me to state briefly my own answer to the frequently asked question: "Why should we act favorably on the Genocide Convention now?"
The answer, it seems to me, has three parts–
First. The Genocide Convention outlaws action that is repugnant to the American people. We should not decline to affirm our support for principles of international law and morality which we believe in. Our country was founded out of a passionate concern for human liberty reflected by the Bill of Rights and the Constitution. I believe that concern is very much alive today, as is reflected by the report of the Foreign Relations Committee supporting this convention at the last session of Congress. It is inconceivable that we should hesitate any longer in making an international commitment against mass murder.
Second. Our failure to adhere to this Convention is an unnecessary diplomatic embarrassment. Seventy-five countries have now ratified the convention. We are the most prominent United Nations member that has not. When I was U.S. Ambassador to the United Nations, I was often asked to explain our failure to ratify the Genocide Convention. Frankly, I never found a convincing answer. I doubt that anyone can. At a time when our commitment to human rights is being questioned by some of our own people and by others overseas, it is particularly important that we ratify a treaty so thoroughly consistent with our national purpose. A continuing dedication and reaffirmation of the humane principles of our Bill of Rights and Constitution is very much in order.
Third. Our adherence to the Genocide Convention can make a practical contribution to the long and difficult process of building a structure of international law based on principles of human dignity. It will put us in a better position to protest acts of genocide in other parts of the world and will enhance our influence in United Nations efforts to draft satisfactory human rights principles. I do not say that our adherence to this convention will work miracles. It may not bring very dramatic benefits in the short run. Let us remember, however, that none of the great documents of human civilization produced instant morality – not even Magna Carta or our own Bill of Rights. The point is that they did shape history in the long run. I believe the same may be true of the Genocide Convention, if we only give it a chance.
A number of arguments, many of them of a constitutional or legal nature, have been advanced against ratification. I believe they are lacking in substance. As the Secretary of State and the Attorney General have declared, there are no constitutional obstacles to U.S. ratification. I find fully convincing the reasoning of the report of the Foreign Relations Committee of December 8, 1970, which painstakingly examines and then rejects each of the constitutional and other arguments against the convention.
It is true, as this subcommittee is well aware, that the House of Delegates of the American Bar Association recommended against ratification of the Genocide Convention in 1949. But in the last 2 years every section of the ABA having specialized competence in the subject matter has come out in support of ratification of the Genocide Convention: the section of Individual Rights and Responsibilities, the section of International and Comparative Law, the section of Criminal Law, the section of Judicial Administration, the section of Family Law, and the ABA Standing Committee on World Order Under Law. A motion to reverse the ABA's 1949 position failed in the house of delegates by only four votes in the Atlanta meeting in February 1970.
It is clear from the recent record that the house of delegates is closely divided on this issue, but that settlement in recent years has moved dramatically in favor of ratification. It is also clear that those sections and committees of the ABA with special interest in international law and constitutional questions are overwhelmingly in favor of ratification. It is also significant that many prominent leaders of the ABA, including past presidents, Bernard G. Segal, Whitney North Seymour, William T. Gossett, Charles S. Rhyne, the Solicitor General Erwin N. Griswold endorse ratification. Many other distinguished members of the bar, including Attorney General Mitchell and Secretary of State Rogers, have likewise endorsed ratification, as have several other State and local bar associations.
The ABA, as we are all aware, is a very different organization than it was 22 years ago. Its membership has changed its views on many questions, domestic and international. I believe the subcommittee may wish to bear these considerations in mind as it evaluates the testimony of those who appear on behalf of the ABA today.
Let me comment on the arguments that have been given particular prominence by the opponents of ratification:
First. The contention that the Constitution prevents ratification of the Genocide Convention because genocide is a "domestic" matter is without foundation.
It would be a curious result if the United States were constitutionally barred from ratifying a convention already ratified by 75 other countries, including such friends and democracies as the United Kingdom, Canada, France, Mexico, the Scandinavian countries, and Israel. Fortunately, there is nothing in our Constitution that imposes such a unique disability upon us.
By any objective standard, genocide is a matter of international concern and is, therefore, an appropriate subject for the exercise of the treaty making power. In our shrinking world the massive destruction of a racial, religious or national group in one country has its impact on members of this group in other countries, stimulates demands for intervention, and inevitably troubles international relations. The fact that the United Nations General Assembly unanimously declared genocide to be a crime under international law in 1949 and that 75 members of the United Nations are parties to the Genocide Convention is further evidence that genocide can no longer be considered a matter wholly within domestic jurisdiction.
The protection of human rights is a matter of international concern. The United States has shown that it agrees with this view by ratifying the World War II peace treaties, the United Nations Charter, the Slavery Convention of 1926, and more recently the Supplementary Convention on Slavery, 1967, and the Supplementary Convention on Refugees, 1968. In the words of the Special Committee of Lawyers of the President's Commission for the Observance of Human Rights Year, chaired by retired Supreme Court Justice Tom C. Clark:
"Treaties which deal with the rights of individuals within their own countries as a matter of international concern may be a proper exercise of the treaty making powers of the United States.... It may seem almost anachronistic that this question continues to be raised."
I agree with my former colleague, Justice Clark, that there is no real basis for challenging the authority of our country under our Constitution to enter into the Genocide Convention. The constitutional arguments against the convention are indeed, as the committee said, anachronistic and without foundation in law.
Second. The contention that the Genocide Convention would alter the balance of authority between the States and the Federal Government is unfounded.
The Constitution specifically gives Congress the power to define and punish offenses against the law of nations. Genocide is an offense against the law of nations and is thus within the power of Congress to outlaw. Moreover, as the ABA's Section on Individual Rights and Responsibilities said in its report:
"Ratification of the Convention will add no powers to those the Federal Government already possesses."
Third. The contention that ratification of the Genocide Convention would subject American citizens to trial in foreign countries like North Vietnam on trumped-up charges of genocide is wholly false.
There is nothing in the Genocide Convention that would provide warrant for charges by North Vietnam that our prisoners of war, being held under conditions in violation of the Geneva Convention, are guilty of genocide. As the Foreign Relations Committee pointed out in its report, Hanoi can make trumped-up charges of genocide against our servicemen, with or without reference to the Genocide Convention. In the words of the committee:
"Their peril will not be increased by approval of this convention while peril may be avoided far tens of millions by ratification of the convention."
Moreover, under the Genocide Convention, extradition would only take place in accordance with laws and treaties in force, and we have no extradition treaties with North Vietnam. Nor do we make such treaties with countries whose legal systems do not afford basic procedural safeguards. Moreover, we do not grant extradition in any event unless a prima facie case is established against the accused and unless the accused will be afforded by the requesting state the due process provided by our own law.
In reading the testimony of the prior hearings I have noted the discussion of concurrent jurisdiction under the convention jurisdiction of the state of which the offender is a national as well as the state in which the offense of genocide occurs. I noted the concern expressed on this matter by the senior Senator from Kentucky, Senator Cooper. Any expression from Senator COOPER deserves serious attention, and I have given it the serious attention that it warrants. I found in my own review of the legislative history that there was an agreed interpretation by the Legal Committee of the United Nations General Assembly that nothing in article VI shall affect the right of any State to bring to trial before its own tribunals any of its nationals for acts committed outside the State. The Foreign Relations Committee reached the same conclusion in its report. Nevertheless, I commend the committee for meeting this concern by recommending an appropriate understanding on this point. I note further from the testimony of administration witnesses that the Government could refuse to extradite where an accused American was standing trial in the United States or where the U.S. Government elected to try him here.
Fourth. The argument that ratification of the Genocide Convention would subject the U.S. Government to irresponsible charges of genocide arising out of Vietnam, or our treatment of American Negroes, is without foundation.
Here again, ratification of the Genocide Convention does not alter the present situation to our disadvantage. Even without ratification, there is nothing to prevent a country from making baseless charges of genocide against this country in the United Nations. If anything, ratification would improve our position, because the convention requires an "intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such." The tragic events in Vietnam and the terrible loss of life, both military and civilian, that has occurred there do not meet the treaty definition. Charges of genocide in relation to the treatment of the Negro community in the United States, which admittedly has suffered widespread discrimination for many years, also are not within the scope of the treaty. Ratification of the convention would, if anything, help us rebut such charges by subjecting our behavior to a precise legal definition of genocide.
Fifth. The argument that provision for the settlement of disputes by the International Court of Justice would override the Connally amendment and unreasonably limit our sovereignty is without substance.
This charge also lacks substance. The Connally amendment applies only to our acceptance of article 36(2) of the Court's statute, the so-called optional clause providing for compulsory jurisdiction across the board. Cases arising as a result of our adherence to the Genocide Convention would come under article 36(1) of the Court's statute, which covers the Court's jurisdiction as provided for in specific treaties. The United States has ratified many treaties containing the same type of provision for the settlement of disputes by the International Court as is contained in the Genocide Convention. Among such treaties are the Supplementary Convention on Slavery, the Antarctic Treaty, the Statute of the International Atomic Energy, and the Convention on the Privileges and Immunities of the United Nations, ratified just last year. A list of these treaties is contained on page 215 of this subcommittee's 1970 hearings. Indeed, our country, in the ratification of many treaties, has proposed that the International Court have jurisdiction over disputes. Interestingly enough, our efforts in this direction have frequently been frustrated by the Soviet Union, not Congress, whose Members on numerous occasions have advocated increasing resort to the International Court.
This provision for the settlement of disputes over the interpretation of the Genocide Convention does not unreasonably limit our sovereignty. Our interests are better served by having any charges of genocide against us considered in a judicial forum like the International Court, rather than more politically motivated forums. Of course, by this provision we do undertake a commitment limiting our freedom of action in a limited sphere, as do the other parties to the convention. This exchange of commitment is inherent in any treaty to which we become a party. Where the exchange of commitments serves our national interest, as it does here, it provides no valid basis for objecting to the treaty.
Sixth. The argument that various provisions in the convention – "in whole or in part," "mental harm," "direct and public incitement to commit genocide" – are loosely drafted and potentially harmful to our interests, is without foundation.
Words in a statute or treaty are not self-interpreting. They must be read in the context of other provisions and in the light of the legislative or drafting history. The hypothetical interpretations of the Genocide Convention advanced by the critics are invalidated by the language of the convention itself and by the records of the negotiation.
Thus "in whole or in part" does not mean that the killing of a single individual becomes genocide. As the negotiating history makes clear, substantial numbers must be involved, and the acts of homicide must be joined by a common intent to destroy the group for the definition of genocide to be satisfied. The understanding recommended by the Foreign Relations Committee to confirm this point is wholly consistent with the drafting history.
"Mental harm," in turn, would not support propaganda charges of harassment of minority groups, as charged by some critics, because mental harm becomes an element of genocide only when done with an intent to destroy a group. Moreover, as the negotiating history shows, it was inserted for the narrow purpose of prohibiting the permanent impairment of mental facilities, as from the forcible application of narcotic drugs.
"Direct and public incitement to commit genocide" does not cover constitutionally protected speech. It covers speech which calls for the commission of mass murder, which is actionable under our Constitution as in other countries. As the Supreme Court declared in Brandenburg v. Ohio, 395 U.S. 444:
"The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Emphasis added.)
In any case, no treaty can override a provision of the Constitution, and there is no doubt that the legislation passed in implementing the Genocide Convention will be interpreted in accordance with the first amendment.
In conclusion, I find the objections to ratification of the Genocide Convention without substance.
The reasons for ratification, as I suggested earlier, seem to me compelling. Some cynics doubt that the Genocide Convention really "matters." Some say it ranks at the bottom of our foreign policy priorities. Some even say it is an exercise in futility.
I do not agree. We have heard this argument new for over 20 years. I believe the time has come to devote more of our energies and resources to the long term task of constructing some kind of decent world order. Ratification of a convention outlawing the most blatant crime against humanity will not by itself provide the answer. But it is surely a good place to begin. It should be one of the foundations of the rule of law among nations – a rule of law which, in the long run, is the only assurance of lasting peace.