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approved by the Senate Foreign Relations Committee and by President Reagan. Since these are non-controversial I will not
comment on them except to generally describe them and endorse them as wise clarifications and procedures.
The first understanding which the Senate should include in its resolution of ratification clarifies the "intent to destroy", in whole or in part, language of Article II to mean the intent to destroy "in such manner as to affect a substantial part of the
This understanding merely states the common
sense proposition that genocide is intentional mass murder of a
ethnical, racial or religious group, as such, and not
isolated common crimes.
Similarly, the proposed understanding of the United States
government that the "mental harm" language of Article II (b) means the "permanent impairment of mental faculties" simply clarifies the definition of genocide consistent with precise and narrow criminal standards and the well established constitutional law protecting free speech.
The third proposed understanding assures 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".
As noted above,
understanding to assure the full and continued independence of the American legal system and the continued extension of full constitutional rights to any and all United States citizens who may be subjected to allegations concerning genocide.
Finally, the proposed declaration, stating that the United States "will not deposit its instrument of ratification until after the implementing legislation referred to in Article v has been enacted", is a common sense statement by the United States government that, following an affermative Senate vote on advice and consent, it will not accede to the Genocide Convention until Congress has first passed domestic implementing legislation Congressional involvement in convention implementation and assures that our international legal obligations will be fully
pursuant to Article V of the Convention.
This both protects
met at the time the Convention becomes binding on the United
It makes absolutely clear, as is indeed evident from the
face of the Convention, that the Genocide Convention is not self
executing in American courts.
It is likely that there will be controversy, as there has been in the past, concerning whether the United States should reserve to Article IX accepting the jurisdiction of the International Court of Justice "relating to the interpretation, application or fulfillment" of the Convention. This issue is not an easy one and if there is strong Senate feeling to have a reservation to Article IX, I would regard it as more important to
give advice and consent to the Convention than to prevail in any view on the Article IX issue, pro-reservation anti
After agonizing about the World Court issue under Article IX I believe that, on balance, it is preferable for the United
States not to have a reservation to Article IX.
I do not regard
the opposite conclusion as
unreasonable in light of recent
actions of the Court in and surrounding the Nicaragua case.
Reasons supporting advice and consent to Article IX with no
reservation include the following:
under the Genocide Convention, as under multilateral conventions in general and unlike acceptance of the compulsory jurisdiction of the Court under the optional clause, the Court is constrained by a defined normative standard agreed by the United States;
the United States is already a party to over 80 multilateral treaties referring disputes to the Court and it has been a foreign policy practice of the United States to encourage such treaty clauses. Many important treaties
now pending before the Senate
contain such clauses;
some nations may interpret a United States reservation
to Article IX as inconsistent with a major purpose of
the treaty and thus argue such a reservation would legally negate United States accession. The Netherlands, a close NATO ally of the United States, has made such a statement with respect to the Soviet
general compulsory jurisdiction of the court, most of our allies have accepted without reservation the
Court's jurisdiction under Article IX and many place considerable importance on such acceptance,
as is indicated by the Netherland's objection to the Soviet Article IX reservation;
if we have a reservation to Article IX we cannot bring
an action in the Court against others for violation of
Nicaragua for genocide against the Miskito Indians; and most importantly, the United States is already subject to actions concerning genocide before the World Court under our prior general acceptance of the compulsory jurisdiction of the Court and the international law principle that genocide is already a crime under customary international law. One reason to ratify the Genocide Convention is to obtain clarity in legal
obligation under the Convention as opposed to vague
customary international law.
To reserve to Article IX
will remove this benefit of accession and put us back
under the vague setting of the customary international
standard without benefit of United States
understandings that would accompany our accession.
In conclusion, Mr. Chairman and members of the Committee,
there are strong moral, foreign policy and national security reasons why the United States should accede to the Genocide convention. And there are no constitutional or other legal
impediments. to that accession.
As an American I take great pride in my country and its record in human rights. It is right that our nation accede to
the Genocide Convention
and it is long overdue.
we have a
long struggle ahead for human rights and control of totalitarian abuses in a dangerous world. United States accession to the Genocide Convention will not alone reform the behavior of
ruthless and grotesque regimes bent on genocide. But we must not fail to take the small but greatly important step, to accede to the Genocide Cconvention, in doing all we can to
eliminate genocide from the future of mankind.
John Norton Moore is Walter L.
Brown Professor of Law and
Director of the Center for Law and National Security at the Oniversity of Virginia. formerly he served as Counselor on
International Law to the Department of State and as a United
States Ambassador to the Law of the Sea Conference.
Chairman of the American Bar Association Standing Committee on Law and National Security and has testified on two prior occasions on behalf of the American Bar Association in support of Onited States ratification of the Genocide Convention. He is also President of the Conflict Analysis Center in Washington, D.C. which has prepared and distributed an educational pamphlet
on United States ratification of the Genocide Convention.
views expressed are his own.
This testimony draws heavily on the pamphlet prepared by the educational conflict Analysis Center entitled "Genocide:
Ratification of the Convention on the Prevention and Punishment
of the Crime of Genocide (1984). Copies of this pamphlet may be obtained from the conflict Analysis Center in Washington, D. C. and a copy has been submitted for inclusion in the hearing record
of this hearing.
See generally on the continuing struggle for human rights M. McDougal, H. Lasswell & L. Chen, Human Rights and World Public Order (1980); L. Sohn & T. Buergenthal, International Protection
of Human Rights (1973); R. Lillich & F. Newman, International
Human Rights: Problems of Law and Policy (1979).
RESPONSES BY JOHN NORTON MOORE TO WRITTEN QUESTIONS FROM SENATOR ORRIN G.
HATCH Question No. 1. Can a treaty affect or nullify the provisions of the state constitutions?
Question No. 3. Can a treaty affect or nullify a prior judicial decision of a state supreme court?
Question No. 4. Can a treaty affect or nullify existing federal legislation on the same subject?
Question No. 5. Can a treaty increase the powers of the Federal Government at the expense of the states?
Question No. 6. Is a treaty or international agreement which conflicts with the constitution null and void?
Answer. Such a treaty or other international agreement would be voidable by the United States. The determination of whether a treaty or other international agree ment in fact does conflict with the Constitution is, of course, a legal determination made only by the Supreme Court of the United States, and not by any international organization or body or any other country.
Question No. 7. Is the power to make international agreements limited to a particular subject?
Answer. Under the Constitution the power to enter into treaties is vested in the President by and with the advice and consent of the Senate. The enumeration in the Constitution of subjects of treaties has been interpreted by the Supreme Court as a broad power. The power to make "international agreements” is, on the one hand, limited by the treaty-making power of the Constitution requiring the consent of the Senate and, on the other hand is a very broad power vested in the President under Article II of the Constitution.
Question No. 8. The Genocide 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 killing Arabs in the Middle East that he can be prosecuted for genocide? What about the constitutional guarantee of freedom of speech? What about the freedom of the press?
Answer. A member of Congress or, for that matter, any other public official or private individual, could not be prosecuted for genocide for justifying the action of Jews killing Arabs in the Middle East. The language of the Genocide Convention establishing the crime of genocide for “the direct and public incitement to commit genocide” was specifically included in the Convention at the insistence of the United States in such a way as to be fully protected by the safeguards of the First Amendment to the Constitution.