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be remembered that President Daniel Ortega has accused the United States of formenting genocide in Nicaragua.
Question 27. Does the advocacy of religious or racial hatred, constitute an act of Genocide under the Treaty's “incitement” provision, and thereby violate the First Amendment's protection of “free speech” regardless of how offensive the speaker is?
Answer. I believe that the incitement clause of Article III is directly opposed to the holding of Brandenburg v. Ohio (1969). The position of the State Department that the language of this Article is consistent with the terms of the Genocide Convention is poor interpretation and ill-advised. Question
28. Does the Treaty permit the United States or other international tribunal, to cite the United States or any individual or government official, for genocide, by failing to act to pass legislation implementing the Treaty?
Answer. I believe that much of the Genocide Convention is self-executing, but for those sections which are not, the possibility certainly exists that another signatory, or the U.N., could lodge a complaint in the world court against the United States for its failure to implement properly the terms of the Convention.
Question 29. What would constitute "causing mental harm” under the provisions of the Treaty?
Answer. Despite the so-called United States Understanding, I do not understand the limitations on the phrase "causing mental harm" aside from the attempt to distinguish a temporary and permanent impairment of mental faculties.
Question 30. Would the failure of the United States to act to restrain the persecution of a people in another country, subject to the President or the Secretary of State to prosecution for an act of genocide before an international tribunal?
Answer. No, I do not believe that the failure or omission of an American President to take action against a regime or a group in another country to prevent the crime or crimes of genocide would in any way subject either the President or the Secretaryl of State to prosecution for complicity or of any other criminal act specified in the Convention.
Senator HATCH. Thank you, Doctor. I will have to submit a number of questions because of my time schedule.
It is a general principle of constitutional law that any given provision of the Constitution must be construed in the light of other provisions of the same instrument. Are there then provisions in the Constitution which impliedly limit the treaty-making, power, so that if a treaty be made which conflicts with such provisions, such treaty would be unconstitutional? If so, what are they?
Mr. FRIEDLANDER. In the treaty-making power, one, the Senate has to give its advice and consent; and two, the courts have interpreted the Constitution as placing possible limitations upon the treaty-making power with respect to domestic legislation.
The truth of the matter is, if one takes a look at the long history of American jurisprudence from the Ware v. Hylton case in 1796 down to the present, most of the comments of the Supreme Court are made in dicta-like statements, often ambiguous, often unclear. The one case dealing with treaties conflicting with the Constitution being Reid v. Covert, which is not very clear, so that I think there is still a great deal of ambiguity, a great lack of clarity in that area.
If I may cite my distinguished colleague sitting next to me, in his prepared statement, he does say that he believes the necessary improvement of the laws must be considered as the basis for new leg. islation. My response to that is I would hope not.
I think the Court has yet to spell out clearly and convincingly what the limitations on the treaty-making powers are. The Founders, or the framers of the Constitution, at the time of the drafting of the Constitution, at the time of the writing of the Federalist Papers, at the time of the State conventions ratifying the Constitution, viewed article VI as only dealing with foreign affairs and for
eign matters. This was true through all of the jurisprudence down through the 19th century to the case of Missouri v. Holland. There was no concern for the first century and a quarter in the history of this country about treaties involving primarily domestic legislation. That was a 20th century contribution.
Professor MOORE. Mr. Chairman, it is clear constitutional law today, and I use that term deliberately in light of the discussion we have had, that the Constitution prevails over a treaty as well as prevailing over State and Federal legislation that may be inconsistent. Some of the statements you have heard speculate about what the Supreme Court might do, but we don't need to speculate. The Court has clearly settled the issue in Reid v. Covert.
I might add also, Mr. Chairman, that some of the arguments that have been made seem to me, really, to have not raised any serious constitutional or legal issue. We have heard that somehow there is a lack of clarity as to whether this treaty is self-executing. I know of no serious debate or argument that this treaty is not, in fact, self-executing. Even Attorney General Brownell testified in 1950 hearings that this treaty was not self-executing. As pointed out by my colleague, even if it were self-executing, in this case, it could not be because the administration has a declaration saying that we must enact domestic legislation before the treaty can be ratified. That is the second answer to any potential constitutional problem here, and that is this treaty cannot come into force in the United States until legislation scrutinized carefully by this committee has been passed by the Congress of the United States and signed by the President.
Mr. Chairman, I would also like to point out that, in my judgment, the arguments made with respect to inconsistencies between the first and fifth and sixth amendments and this Convention are without merit. The first amendment issues have been clearly met in terms of the language of the Convention and incitement is not protected by an amendment in the United States. Even the American Civil Liberties Union which testifies rather carefully in favor of the first amendment has seen no encroachment on the first amendment in this particular case.
If we were to accept the argument that the kinds of extradition agreements that we have made here are in violation of the fifth and sixth amendments, the real effect of that is that every single extradition treaty the United States has with any country is unconstitutional. I submit that is nonsense, Mr. Chairman. That is not the reality of this Convention. If any of these extradition issues were problems, they can be addressed in the implementing legislation.
I would like to point out one additional issue and discuss whether the United States would be placed at enhanced risk by accepting this Convention. I would like to emphasize that already under accepted principles of customary international law, genocide is a crime already binding on the United States under international law. We are already subject under the optional clause acceptance in the International Court of Justice to be taken before the court for disinformation reasons just as we were very unhappily and wrongly in the Nicaragua case.
By ratifying this Convention, what we do is we change a vague, customary international law standard to a standard that comes with understandings that clarify what the United States intent is and that comes with a far more defined notion of what is genocide which limits the basic concept.
Finally, Mr. Chairman, let me just speak to this point about political groups. That is subtly correct, and I think the treaty might have been stronger had it had those provisions in it. Nevertheless, those have not given the Communist countries the free ride. I pointed out two examples in which I believe this behavior of Communist countries violates the Genocide Convention definition. In addition to that, if the United States were to ratify, under article XVI of the treaty we would then be able to move forward to seek to alter the definition. After we ratify we should continue to call attention to the totalitarian state abuses. My own feeling is that the United States should proceed year after year under article XVI of the Convention to say that we should change the definition to include political. We would be in a far stronger position to do that and to embarrass the Soviet Union which is the nation that has sought to block that, but only if we ratify. I would like to see it raised every year as a signatory and as a country that has acceded under article XVI of the Convention.
Mr. DE SEIFE. Mr. Chairman, again, I hate to say this. I do take issue with what Professor Moore says. I am impressed by the fact that he is so sure about everything and everything is crystal clear. I think the only thing that is clear is that it is very muddy, indeed, something which we don't need.
To talk about Reid as a cornerstone, as a constitutional document which is inviolate, to me that does not have that much merit because the Supreme Court could change Reid tomorrow. If you read Judge Kaufman's opinion in which he talks about crimes against nations, or the law of nations having to be interpreted as the law of nations is conceived today and you conclude that it is Judge Kaufman's own conception of what is a modern-day crime against nations that is involved. Putting it bluntly, there is nothing wrong with the Genocide Convention if you want to use it as a propaganda forum. The problem is with our constitutional form of government, with our Constitution which mandates our not ratifying symbolic treaties. Treaties with us are very serious business and the Convention does, no matter what Professor Moore says or any other distinguished colleagues may say, impact on domestic legislation.
I would like to point out that world opinion is not a reason for signing a treaty under American constitutional law.
Talking about procedure, I would like to ask Professor Moore how the United States, after it has ratified this Convention, is going to bring Nicaragua before the International Court of Justice when, in fact, the International Court of Justice has no jurisdiction over individuals? What charge shall we bring against Nicaragua, since governments cannot be charged with genocide. The International Court of Justice is not bound by any American legislation, so therefore I say it is wrong to suggest, under our unique system, that we should pervert the definition of treaties under the Constitution by signing a treaty that is worthless, which is bad law and should be sent back and be rewritten. If we want leadership, let the United States go before the United Nations and rewrite the thing the way it should have been done in the first place.
Mr. MURPHY. Professor Moore may want to answer the last question that Professor de Seife raised himself, but let me take a shot at it because I think it is an important issue. How could the United States bring Nicaragua before the Court of International Justice?
We could bring an action against Nicaragua under article IX of the Convention. I would interpret the Convention as precluding a state from commiting genocide and giving rise to state responsibility for failure to apprehend, prosecute, and punish those individuals that commit genocide. I would differ with my colleague, Professor Friedlander, who stated that states, not individuals, commit genocide. The state is an abstract notion. The concept of individual responsibility for genocide was clearly established at the Nuremberg trials under the charge of crime against humanity.
Let me respond to the question you asked, Senator Hatch; that is: Are there any provisions in the U.S. Constitution which expressly provide that the Constitution will prevail over the terms of a treaty that conflict with the Constitution?
The answer, of course, is no, there is no such express provision in the Constitution, which is why this issue is before us in the first place. It came up 30 or more years ago. But it has been clearly established by Reid v. Covert and other sources that the Constitution does prevail.
Moreover, I would suggest there is no danger of that decision being reversed because there is no one who wishes to reverse it. No one that I know of is going to argue that a treaty can prevail over the U.S. Constitution, so it is simply not going to happen.
Last, of course, there is the question of whether there are provisions in the Genocide Convention that would violate the U.S. Constitution. To address that question adequately, I would have to spend many more hours. But the simple answer is no. These questions have been coming up for 30 years. They have been answered again and again. They are addressed in the various written statements submitted this morning, and we will leave it at that.
I will say just one word in conclusion. I would be strongly opposed to Ú.Š. ratification of the Genocide Convention with the kinds of reservations that Professor Friedlander has proposed. It would make a mockery of U.S. ratification of the Convention and, indeed, if the issue came before the International Court of Justice, the Court would surely hold such reservations contrary to the object and purpose of the Convention.
There are no constitutional defects, in my opinion. The United States should ratify this Convention.
Thank you, Mr. Chairman.
Senator HATCH. I have to leave, but I have a number of other questions I would like to ask of you while you are here. I will ask Mr. Michael Loyd Chadwick, a member of my staff, to continue with the questions. This has been a particularly informative panel before the committee. I have seen a wide disparity of beliefs. There are certainly differing points of view. I think we will benefit a lot more if we can get answers to the rest of these questions. I will keep the record open so anyone on this subcommittee can ask ques
tions. We will keep the record open until the end of the week. I am very happy to have been here.
If you will forgive me, I think it is important enough to have Mr. Chadwick continue with some questioning. The balance we will ask you to answer in writing.
Mr. CHADWICK. Under the definition of genocide in articles II and III, "conspiracy to commit genocide” is included as punishable as is "direct and public incitement to commit genocide.” Would enabling legislation proscribe in U.S. law advocacy of genocide as genocide is defined in article II?
Mr. FRIEDLANDER. I think the problem with article II, as I said in my testimony earlier, is a problem of specificity, precision, and definiteness. So the subsections there, I think, are again, to repeat, vague and overbroad. Therefore, I disagree with my friend and colleague, Professor Murphy.
We are told article III(c) deals with direct and immediate incitement. As a matter of fact, I think in one of the questions submitted to us, the example of an American Senator or an American Representative on the floor of the Senate or the House, speaking on behalf of Israel and its actions taken against the Palestinians who, incidentally, have accused Israel at times of genocide, can be taken to meet the requirements of the Genocide Convention on the advocacy or the direct and public incitement to genocide.
I will maintain that the language of article II is disturbingly imprecise and is obscure and, therefore, makes this a serious question wherein the legislation to be passed would have to conform to the general rules for legislation, and, specifically relating to this convention, would have to be precise and definite in its meaning.
Professor MOORE. The language of article III picks up the concept of conspiracy and explicitly uses the direct and public incitement phraseologies drawn from American criminal and constitutional law. In the United States, conspiracies are criminal. There is no provision of the U.S. Constitution that says the concept of conspiracy is one that violates the Constitution. The distinction under the first amendment is one between advocacy and incitement. The language here is direct and public incitement. I think that is a very carefully and narrowly drawn phrase, one in fact drafted by the United States. Direct can refer to the immediacy of the threat. Indeed, I think that is the principal meaning one would take from context.
Whatever any differences people may have as to the precise scope of that language, I think that can easily be dealt with in implementing legislation. It would be a very easy matter to draft carefully worded implementing legislation that would implement these provisions and not violate the Constitution of the United States.
I might add we have that on the good authority of no less than one of the Justices of the Supreme Court of the United States today who testified on this issue some years ago. Then Assistant Attorney General William Rehnquist stated specifically on the first amendment point that there was no violation of the first amendment in this case under the Convention and there could not be.
I might add even in the event there was some kind of implementing legislation passed that would be in violation of the Constitution