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Second, would the Genocide Convention alter the balance of authority between the States and the Federal Government by making genocide an international and Federal crime?
Third, does the Convention violate specific amendments to the Convention?
Fourth, does ratification of the Convention limit our national sovereignty?
Fifth, does the Convention mandate changes in the independence of the American legal system?
Sixth, what amendments, reservations, declarations, or understandings should be attached to the Genocide Convention?
I would like to express my sincere appreciation to Professors Friedlander, Murphy, de Seife, and Moore for the time and effort which they have extended in preparation of their opening remarks and testimonies. Each of them will, no doubt, enlighten this subcommittee with their insightful comments.
I would also like to express my appreciation to Senator Lugar and the staff of the Committee on Foreign Relations for their assistance in preparation for this hearing this morning.
While there may be some who disagree with the holding of these hearings today, I am sure several hundred law students are quite happy that their classes have been canceled.
I will place in the record at this point a statement by Senator Strom Thurmond.
[The prepared statement of Senator Thurmond follows:)
PREPARED STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE
OF SOUTH CAROLINA, CHAIRMAN, COMMITTEE ON THE JUDICIARY Mr. Chairman, this morning the Subcommittee on the Constitution meets for the first time during the 99th Congress. I want to take this opportunity to congratulate you, Mr. Chairman, for the outstanding leadership you have provided in addressing the important issues that are dealt with by this Subcommittee. I look forward to working with you during the 99th Congress.
I also want to commend you for holding this hearing to consider the constitutional issues that relate to the proposed Genocide Treaty. This Treaty has been before the Senate for consideration for more than 35 years. In my view, that is long enoughthe issue has already been effectively resolved and year after year wastes the time of this institution to no good purpose whatsoever.
However, so long as the Treaty remains before the Senate for consideration and so long as its ratification is actively pursued, it is appropriate that we continue to discuss and develop the concerns that have been expressed about the treaty for many years.
Many of those concerns relate to the constitutional implications of the treaty and the effects that its ratification would have on our system of government. As one who has opposed the ratification of the Genocide Treaty, in part because of concerns about the negative impact that it will have on our domestic law, I look forward to today's discussion.
Mr. Chairman, I am confident that virtually all Americans abhor even the thought of genocide. We need not sign a piece of paper for the world to know that. Every thoughtful American should, therefore, analyze the actual effect that the Convention would have within the United States if the Senate makes the error of consenting to its ratification.
We have a distinguished group of witnesses with us today, and I look forward to their testimony.
Senator HATCH. Our first witness this morning is John Norton Moore, director of the Centers for Ocean Law and Policy and National Security at the University of Virginia School of Law. A former counselor on international law to the Department of State,
he is currently chairman of the American Bar Association Standing Committee on Law and National Security. Recently, Professor Moore served as a special counsel for the United States in the Nicaragua case before the International Court of Justice.
He is the author of five books and numerous articles.
We will turn the time over to you, Professor Moore.
FESSOR OF LAW AND DIRECTOR, CENTER FOR LAW AND NA.
With your permission, I would like to place in the record my prepared remarks as well as a pamphlet entitled "Genocide" done by the educational Conflict Analysis Center and speak briefly to four points.
Senator HATCH. Without objection, we will put that all in the record.
Professor MOORE. This morning I would like to make four points about the Genocide Convention in support of Senate advice and consent. The first of those is ratification of the Genocide Convention is in the national security and foreign policy interest of the United States. It is in our interest because ratification will enable the United States to more clearly focus attention on contemporary totalitarian genocide as for example in the Khmer Rouge attack on the Cham in Cambodia and the Sandinista attack on the Miskito Indians in Nicaragua. Sadly, Mr. Chairman, we live in a dangerous world in which totalitarian regimes pursuing grotesque ideologies still engage in genocide.
It is in our interest because ratification will remove a propaganda theme available to totalitarian regimes in response to United States pressure to improve human rights. The Soviet Union has sought during the Helsinki talks, for example, to deflect attention from its own human rights abuses by asking why the United States has never ratified the Genocide Convention. I think the quotation from our ambassador to the CSEC talks, Ambassador Max Kampelman, says it very well:
It would be extremely helpful to the United States internationally were we to ratify the Genocide Convention. It is ludicrous to provide the Soviet Union with a club with which to attack us, particularly since we abide by the Convention's provisions even without ratification, while the Soviets, who have ratified it, come close to violating its provisions.
Mr. Chairman, it is in our interest because ratification will clarify for the United States the definition of genocide and more easily enable the United States to rebut false charges and disinformation with respect to the actions of the democracies and their allies. I think we should keep in mind in this connection that the restatement of the Foreign Relations law of the United States already makes it clear that genocide is an international crime under customary international law binding on the United States. Since suit thus can be undertaken pursuant to the U.S. acceptance of the jurisdiction of the International Court of Justice under the optional clause as some kind of propaganda action against the United States, we are already subject to that kind of action before the ICJ and ratification would clarify the definition of genocide and make
even easier rebuttal of any grotesque disinformation charge that might be made against us.
In addition, ratification would restore U.S. leadership in the continuing effort to end the horror of genocide. In this respect, I would like simply to quote a statement made by former Secretary of State Dean Rusk in his testimony in 1950:
We all know too well that millions of human beings are still subjected to the domination of ruthless totalitarian regimes and that the specter of genocide still haunts mankind. It should be made clear to such governments that the United States and other civilized countries do not condone such conduct any more than in the past.
The second point I would like to make this morning, Mr. Chairman, is that quite simply there are no constitutional or other legal impediments to Senate advice and consent to ratification of the Genocide Convention. This treaty is clearly and validly within the treaty power. In a long line of Supreme Court cases from the Geofroy v. Riggs case back in 1890 down until the present, it has been clearly established that the treaty power is broad enough to cover all subjects that properly pertain to our foreign relations. I think there can be simply no question that this is one of those subjects in view of the fact that twice it has been unanimously approved by the U.N. General Assembly as a crime against international law. I might add, Mr. Chairman, that those votes took place not in the current U.N. General Assembly, but back in 1946 and 1948 when there was in fact something we spoke of then as the automatic majority for the United States. In addition to that, the London Charter of the Allied Powers establishing the Nuremberg tribunal clearly indicated this was a matter of international concern. We know that it is a subject that creates, when the horror takes place, many refugees internationally. We know that it is frequently associated with radical-regime syndrome totalitarian states and frequently leads to serious conflict. So there is no question that this is clearly an issue subject to the proper exercise of the treaty-making power.
In addition to that, the Reid v. Covert case held in 1957 that should there be a conflict with the U.S. Constitution, it is happily the Constitution that prevails.
So there can in the end not be any kind of ultimate conflict because the Constitution of the United States would prevail. It could in no sense be set aside by this or any other treaty or executive agreement the United States might enter into.
In addition, I think we should point out that this particular treaty is clearly non-self-executing. That is, you would have no effect in the domestic courts of the United States apart from implementing legislation that this committee and the overall U.S. Congress would have to enact.
So, this is not one of those cases where we need worry about vague language, whether it is self-executing or not. We know it is clearly not from the language of articles V and VII and the declaration that the administration has submitted. So this is one of those cases not presenting us with the kinds of problems that were argued, for example, at the time of the Bricker amendment debate. In addition, this is a setting in which there is clear Federal authority already to undertake legislation dealing with defining international crime. Thus, this is not an area in which in any respect this
treaty would add powers to the Federal Government that it would not have in the absence of a treaty.
Now the third point I would like to make this morning, Mr. Chairman, is that much of the early debate about the Genocide Convention involved issues or constitutional uncertainties that have now been definitively resolved by the 1957 Reid v. Covert case, after the initial confusion about whether a treaty might be able to set aside the U.S. Constitution. Up until that time, there had been no definitive Supreme Court decision deciding that issue, though frankly I think the dictum of the Supreme Court was reasonably clear to that effect prior to that. So, that has been a fundamental clarification that tells us now we are not at risk in this particular kind of setting.
In addition, we now know much more about the kinds of treaties that are self-executing than we did in the early days of the dedate. We know that a treaty is not self-executing unless the congressional intent is clear to make the treaty self-executing.
Finally, Mr. Chairman, I would like to turn to my fourth and final point, and that is to discuss considerations with respect to whether the United States should have a reservation concerning article IX of the convention referring disputes to the International Court of Justice.
I take it for granted that the three understandings and one declaration supported by the administration at submittal make excellent sense and are noncontroversial, but this article IX is an issue I have heard raised.
Let me say first on the side of arguing that there ought to be a reservation that I understand concern about propaganda cases and politicized decisions following the Nicaragua case. In my opinion, that was extraordinarily misinformed decision to bring an upside down case to halt a defensive response against an ongoing armed attack. In my judgment, the Court makes a serious error in this case with respect to its assertion of authority and its power in taking the case and, as one who participated in that case on behalf of the U.S. Government, Mr. Chairman, let me say that I understand full well concerns that some may have with respect to overreaching and politicized efforts before the Court.
Having said that, Mr. Chairman, I conclude it is nevertheless in the interest of the United States not to have a reservation to article IX. I think there are four important reasons why we should not. First, acceptance of the compulsory jurisdiction in this treaty narrows U. S. liability under customary law. It does not expand it. It narrows it, and what we are doing by not accepting the jurisdiction of the Court here is continuing to accept the jurisdiction under the vague customary law standard without the clarifying understandings of the United States.
Second, nonacceptance limits our ability to enforce against grotesque totalitarian behavior elsewhere. This is similar really to the effort of the United States to have these clauses in terrorism treaties such as the Montreal treaties on aviation or the treaty for protection of diplomats that enabled the United States to take Iran to the International Court of Justice. It did not solve the problem for us but it helped to get the definitive judgment of the Court. In my judgment, the issue ought to be looked at seriously, for instance, by
bringing a case against the Sandinista leadership for genocide of the Miskito Indians. That is an option clearly not open to the United States if we did not accept this provision.
Third, nonacceptance will cast doubt on whether the United States has accepted the treaty. Two of our closest allies in NATO, The Netherlands and the United Kingdom, have both said in reaction to Soviet bloc reservations to article IX that they do not regard that reservation as consistent with the object and purpose of this treaty. That simply means in legalese they do not regard the Soviet bloc as having accepted the treaty as far as The Netherlands and UK are concerned. That means it will cast doubt on the ability of the United States to have in fact legally ratified it and concluded this agreement.
Finally, Mr. Chairman, I believe nonacceptance of article IX would put the United States in the same moral position as that of the Soviet bloc which I think has something very genuine to fear from a Genocide Convention. Out of the 15 nations that have reserved on article IX, nine are members of the Soviet bloc or Communist nations. Unlike the totalitarian nations the democracies are not about to commit genocide.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Moore and responses to written questions follow:]