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here, it simply would be unconstitutional as would any treaty obligation, so in no event is it possible under American constitutional law for us to violate the Constitution here as a matter of domestic law.
Let me just briefly also associate myself with the remarks of Professor Murphy in seeking to oppose the kinds of additional reservations that have been put forward today. I think they would be extremely harmful. I think frankly they are frivolous and have no basis in sound constitutional law or legal principles, and I think they would be harmful to the national security and foreign policy of the United States.
I would also like to associate myself with the answer Professor Murphy has given to the question addressed to me as to how we would go about seeking to make a case in the ICJ against the Sandanista leadership for genocide against the Miskito Indians. I think the answer it is based on a combination of article I and article IX of the treaty, in which there is an obligation of each member state to prosecute those individuals who may be guilty of genocide and, under article IX, would be submitted to the court.
Mr. DE SEIFE. First of all, even insofar as the first amendment is concerned, the pendulum swings in the United States. As late as 1950, certain actions were deemed to be criminal which now are part of free speech. We have to remember that the Vietnam era injected a concept of freedom of speech which wasn't quite subscribed to prior to the Vietnam war. Things change and it is because of the changing nature of our conception as to what our first amendment means that we have to be careful not to tinker with it by having an alien concept injected. Freedom of speech per se in many countries—people don't even understand what it means. Our concerns are primarily and uniquely American.
On the other hand, it is true that most of the Western democracies which share our Judeo-Christian heritage have similar but equal approaches. Under French law, both incitement and conspiracy can be and are considered criminal but not exactly in the sense of our American jurisprudence.
Again, I ask insofar as the International Court of Justice is concerned-Bangladesh, if I recall correctly, filed an action charging genocide against 195 Pakistanis. Where did that case go? Well, the International Court of Justice has no jurisdiction over Pakistanis individually and Pakistan was not about to be made a party to this case. Let's face it: We as American lawyers and, again, this is unique, labor under the adversarial system which means that for every proposition that any one expert or lawyer gives you, you can find counter propositions. That is why I say there is only one thing that, so far as I am concerned, is clear, and I am not contradicting what I said earlier. What is clear is that the U.S. Constitution does not provide for us entering into conventions or treaties for public relations gimmickry or for symbolism.
Mr. MURPHY. It is important to recognize that because of the language of the Genocide Convention, and because of the language of implementing legislation that would be drafted to ensure precision and that the Constitution would prevail, there would be no danger that a person would be punished for genocide in a manner offensive to our basic values. I think that is clear.
If the United States provides all of these protections because of our Constitution and implementing legislation, would this constitute a violation of the Genocide Convention for which the United States might be held accountable, say, before the International Court of Justice? I think the answer is clearly no.
I don't know how much clearer you can get in article III(c), language introduced by the U.S. delegation and introduced with a statement which was not challenged that the purpose of this language was to avoid constitutional free speech problems. So, I think the issue should be answered quite simply there is no danger at either the international level or the domestic level that persons would be tried or punished for genocide in a manner that violates free speech concepts embodied in our Constitution.
Mr. CHADWICK. There are two remaining questions, and I would ask if you would respond specifically to the question.
Mr. Friedlander, what difficulties might occur with foreign diplomats and dignitaries, for example, Israeli and British, in the United States under the convention?
Mr. FRIEDLANDER. I can see a great deal of difficulty. I can see some Arab state charging an Israeli diplomat, visiting dignitary or government official who happens to be residing or visiting the United States with the crime of genocide, and then requesting extradition. I could also see this happening with respect to the provisional IRA, and for friends of the provisional IRA in the United States, where individuals, either public officials or private individuals, go to charge British diplomats, visiting dignitaries, or the prime minister or foreign minister, with being involved in a crime of genocide and creating a diplomatic crisis in addition to a severe legal problem. I do see that as a problem, and I am concerned about it.
Professor MOORE. I do not see any problem there and, further, I consider it bizarre to believe that anyone would seriously consider the possibility that the U.S. State Department or the executive branch of this Government is going to extradite someone in a trumped up political case with politicized overtones for the purpose of trying to embarrass, let us say, the Government of Israel or any other government. We clearly do not do that under our extradition treaties. We require probable cause. We screen for frivolous kinds of charges that have been brought and, in those cases, it is our law and our practice not to extradite. So, I think the answer is very clearly there is no such additional problem.
Let me also add that the way to look at this is to ask the question even if you held the views my colleague has just expressed, What is the particular incremental benefit to the United States by the Genocide Convention? We are already subject under customary international law, which is extremely vague, which does not have the benefit of the U.S. understanding, which does not have the benefit of the carefully drafted language in convention, to exactly that kind of politicized charge today. In my judgment, one of the substantial advantages of U.S. ratification is to try to pin down and control this sort of politicized charge made against the West.
Mr. DE SEIFE. From a practical viewpoint, I don't think there is too much to fear. I join Professor Moore.
On the other hand, from a theoretical viewpoint and certainly from a propaganda viewpoint, we are legitimizing a forum for individuals who should not even be heard and that is my problem. Thank you.
Mr. MURPHY. I believe there are two considerations-one of domestic law and one of international law and international relationships. As a matter of domestic law, as Professor Moore has pointed out, it is within the authority of the executive branch to refuse extradition, and the executive branch is going to refuse extradition in the kind of situation that Professor Friedlander has posed.
The next question is, if the executive branch refused extradition in the kinds of situations posed by Professor Friedlander, would this constitute a violation of the Genocide Convention? I think the answer to that question is clearly no, again for the reasons we have been discussing at some length here. The Convention lends precision to the definition of the crime of genocide, and would help depoliticize the question of genocide.
Mr. CHADWICK. This is the last question.
What if the United States ratified the Convention with a reservation stating the United States would only submit to the World Court jurisdiction when it agrees in advance?
Mr. FRIEDLANDER. That may be what we are talking about now in the wake of the Nicaraguan case. We do have the problem of the original accession and the phrasing of our reservations to that accession in August 1946, and particularly the Connally amendment which says the United States will not participate in questions that involve purely domestic matters within the United States. On this one, I will gladly also turn it over to my colleagues. I think we may be in the process of fashioning a new approach to the International Court of Justice as a result of our refusal to participate in the ongoing Nicaragua v. United States case and withdrawing for a period of 2 years. I am not quite sure where that leaves us with respect to the International Court, but I do think we should, one, have a reservation that says the Connally amendment applies to the Genocide Convention and article IX, as well as the regular ICJ statute.
Two, I also think we should have an amendment, or if you want to take the position of my colleagues, say understanding or clarification, that we will not appear before the International Court unless we agree to appear also on a voluntary basis. The Genocide Convention in article IX mandates compulsory jurisdiction, and I think under the situation that has been described here today, let alone what is developing with respect to the International Court in the world arena right now, I don't think absolute compulsory jurisdiction is a good idea.
Professor MOORE. The kind of reservation that the question asks is, as many may know, very similar to the Indian reservation which in essence says the parties to the dispute all have to have agreed before in fact there is jurisdiction to go to the Court. There are some problems with that. First, the Netherlands declaration which is that of one of our NATO allies that rejected the Soviet bloc kind of reservation to article IX, also rejected the Indian reservation as incompatible with the purposes of the Convention. The United Kingdom comment was to much the same effect as the
Netherlands comment in reacting to those 15 nations that have some kind of reservation to article IX, making much the same point. So the United States has no reservation along those lines or à Connally-type reservation to article IX, and two of our NATO allies have gone on record indicating they view the states that have those reservations as not in essence being legally party to the Genocide Convention.
In addition to that, it does place us somewhat in the camp of the Soviet bloc countries—9 of those 15 are Communist nations that have refused to accept the jurisdiction of the Court. Moreover, it seems to me it does not get around this problem that we would still be subject to the jurisdiction of the Court under the optional clause, except we would be subject to the jurisdiction of the Court without benefit of a carefully drafted definition of genocide and without benefit of the U.S. understanding.
Let me just say also that I think if the issue came down to one of whether there should be some kind of reservation to article IX or whether the Genocide Convention would receive Senate advice and consent, with that choice, my answer is you should go forward to Senate advice and consent even with a reservation, if necessary.
Having said that, I strongly believe and the more I have looked at the issue the more strongly I believe this to be the case that a reservation is not in the interest of the United States, and I say that as one who has experienced first hand the problems in the World Court.
Let me just add also if you did have a reservation, my own feeling is that that Indian type reservation is probably about as good as you can do. The Connally reservation is not a very useful approach. Those of us who were aware of the problems, we were not able to invoke the Connally reservation in the Nicaraguan case. It did not help the United States in that case where we desperately needed the Connally reservation, and where it was inappropriate for the Court to be taking this case. Yet, in previous cases, where we wanted to bring an action, it was invoked against us. We would endlessly be buying that type of relief against others.
Mr. DE SEIFE. I think that type of reservation nullifies the Convention, so what am I talking about? I am saying to you that if you can't in good conscience sign or ratify the Convention without reservations, do not sign this piece of paper.
Mr. CHADWICK. Thank you.
Mr. MURPHY. I am opposed to this reservation which strikes me as particularly inappropriate and harmful. It would negate entirely the provisions of article IX of the Convention and bar the use of article IX by the United States to call states to account for violations of the Genocide Convention because the reservation could be cited against us under the principle of reciprocity. In other words the United States simply would not be able to use article IX of the Convention in the way we have been discussing up to this point.
Moreover, in my view, the reservation makes no sense, because states can always agree among themselves to bring a case before the International Court of Justice. The statute of the International Court of Justice provides in article XXXVI paragraph 1, that the jurisdiction of the Court comprises all cases which the parties refer to it and all matters especially provided for in the United Nations charter and treaties in force. As presently worded, article IX of the Genocide Convention falls within the latter part of that language. It is language in a treaty in force that provides for the jurisdiction of the International Court of Justice. If the United States adopted the suggested reservation, that latter language would not be applicable. Rather, the firm part of article XXXVI paragraph 1, that the jurisdiction of the Court comprises all cases that the parties refer to it, would apply.
This would seriously undermine the possible effectiveness of the Court in implementing the Convention. It would be most unfortunate if such a reservation were adopted.
I will not speak to the question of the Connally amendment except to note it is not applicable to article IX of the Convention. In my opinion, the Connally amendment has created problems for the United States, but that is a subject for another time and another hearing.
Mr. CHADWICK. On behalf of Senator Hatch, I would like to thank each of you for the time you have put into the preparation of your testimony, opening statements and for being here today. The record will be kept open for 1 week in order to accommodate any additional material you might have.
It is my understanding the Foreign Affairs Committee will be holding a hearing shortly on the Genocide Convention.
This hearing is now adjourned.