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METHODS OF OPERATION

Pt. 8 moment it merely serves as a notice to the other State of the eventual attitude of the signatory State;

(b) that an objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so, is without le gal effect.

[Dissenting opinions omitted.]

1. Vienna Convention provisions on reservations. See Articles 19-23. These articles are the end product of the General Assembly's invitation to the International Law Commission, referred to in the Genocide case, to deal with the matter of reservations. How do the convention's provisions compare with the decision of the International Court of Justice? Do other states have to consent to reservations and if so how is consent to be determined? Are the needs of the United Nations Secretariat as a treaty depositary well met in the convention ?

2. Problems.

a. State X, with nuclear capability, has not yet acceded to the Nuclear Test Ban Treaty, Documentary Supplement. What would be the legal consequences (a) under the Genocide case and (b) under the Vienna Convention if State X were to deposit the following instrument with the three depositary governments? “State X accedes to the Treaty Banning Nuclear Weapons in the Atmosphere, in Outer Space and under Water done at Moscow, August 5, 1963, subject to the reservation that the treaty shall not be deemed to inhibit the use of nuclear weapons in armed conflict."

b. State Y, a new state that has just come into existence, proposes to accede to a number of multipartite international agreements open for accession including the Geneva Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3316, 75–76 U.N.T.S. 185. It offers for deposit this reservation: "Provided, however, that persons guilty of war crimes shall not be entitled in State Y to treatment as prisoners of war under this Convention.” At the time this proposal is made, military personnel of State A, which is engaged in armed conflict with State Y, have been captured in large numbers by State Y. State A is a party to the Geneva Convention. Assume the Vienna Convention is in force. What position would you as the relevant official of State A take as to this reservation under the Vienna Convention?

The United States and Canada negotiated a Treaty Concerning the Uses of the Waters of the Niagara River, 1 U.S.T. 694 (1950). The major purpose of the treaty was to allocate as between the two countries the amount of hydro-static potential each could use for the generation of electrical power. The Senate resolution of advice and consent included a reservation that the United States for its

c.

Question No. 18. What is the significance of the ICJ's view of the universal application of the Convention?

Answer. See the response to question 17.

Question No. 19. Could an international genocide tribunal be created by executive agreement?

Answer. A so-called “international genocide tribunal” has never been proposed. Thus, the jurisdiction and structure of such an entity are unknown. Whether it could or would ever be created by Executive agreement of course depends upon the jurisdiction and the structure of such an entity.

Question No. 20. What difficulties might occur with foreign diplomats and dignitaries (i.e., Israeli and British) in the United States under the Convention?

Answer. It is difficult to imagine that any “difficulties” might occur with foreign diplomats and dignitaries under the Genocide Convention in the United States.

RESPONSES BY JOHN NORTON MOORE TO WRITTEN QUESTIONS FROM SENATOR CHARLES

E. GRASSLEY Question No. 1. Could an individual be prosecuted for the crime of genocide under the treaty, before an international tribunal, when his crime consisted of a single act against a single individual? Answer. No.

Question No. 2. Does the absence of “political" group persecutions in the genocide definition, mean that designation of an individual or ethnic group as an "enemy of the state," and subsequent persecutions of that group, would escape international prosecution for the crime of genocide under the treaty?

Answer. No.

Question No. 3. If this is true, could Hitler have designated Jews as enemies of the state, and then systematically pursued their "extermination," unfettered by any provision of the Genocide Convention, if it was then in effect?

Answer. No.

Question No. 4. Would the Raj of India be permitted to execute all Sikhs as "enemies of the state” following the assassination of Indira Ghandi, rather than as an ethnic or religious group?

Answer. No.

Question No. 5. Was it the east-block, or communists nations, that objected to the inclusion of “political” persecution in the Convention, as has been alleged?

Answer. A number of the Western European as well as communist nations objected, among various provisions, to the inclusion of “national" persecution and to the inclusion of “political" persecution. Apparently the Soviet Union felt very strongly that the inclusion of “national” groups as a protected group under the Genocide Convention would determine Soviet expansionism. The United States ultimately did not object to the deletion of political” because, among other things, it became increasingly evident that the definition of that term would be difficult. The United States would have preferred its retention. However, the United States insisted upon the inclusion of "national" groups in the Genocide Convention which was accomplished and which remains an integral part of the treaty now pending before the Senate.

Question No. 6. Why are convention's terms aimed at individuals, rather than governments, when it is difficult to imagine genocide being conducted against a whole segment of a population without the cooperation of the state? On the theory that a “corporation" or "entity" cannot be guilty of a crime?

Answer. The Genocide Convention is aimed both at individuals and at governments; the suggestion that the treaty does not impose on governments any responsibility simply is incorrect. Article I of the Convention states, “the Contracting Parties confirm that Genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish (emphasis added).” Article II of the Convention defines Genocide in terms of the commission of five enumerated acts and Article III enumerates those acts which shall be punishable. Neither article limits its application to individuals, per se, nor does either act exclude governments. Article V pledges governments to enact, "in accordance with their respective constitutions” laws to implement the Convention and to provide penalties for those found guilty of violations of the Convention. Article VIII authorizes any government a party to the Convention to call upon the competent organs of the United Nations to act to prevent or suppress acts of genocide or other acts enumerated in Article II. Finally, and most important, Article IX authorizes the International Court of Justice, at the request of a party to a dispute, to con

sider cases relating to the interpretation, application or fulfillment of the provisions of the treaty, “including those relating to the responsibility of a state for genocide or for any of the other acts enumerated in Article III (emphasis added).”

Article IV directs that “persons” shall be punished "whether they are constitutionally responsible rulers, public officials or private individuals” and Article VI provides for the trial of “persons” charged with genocide.

Thus, the treaty takes a balanced approach to the respective responsibilities of states and individuals. States, of course, cannot actually pull the trigger or conspire to pull the trigger, etc., only individual people can. Thus, under the treaty, individuals are actually liable for the commission of the crime of genocide and may be so tried before state penal tribunals. States are responsible to see that laws are enacted prohibiting genocide, providing for the imposition of penalties upon convictions of genocide any may be held liable under Article IX for failure to accomplish such goals.

Question No. 7. Was it the Soviets that objected to the language "with the complicity of government” to the Genocide definition?

Answer. Reportedly the Soviet Union and other governments objected to this language. However, as noted in response to question No. 6, government responsibility is clearly spelled out.

Question No. 8. Would ratification of the treaty supersede all previous treaties and acts of Congress that are inconsistent with its terms, including bilateral extradition treaties with other nations?

Answer. Yes, insofar as prior acts of Congress or treaties in force are in fact and specifically contrary to the provisions of the Genocide Convention. Thus, for instance, a federal law stating that genocide was not a crime in the United States would indeed be superceded by the Genocide Convention. Since the Genocide Convention itself is not an extradition treaty and no current bilateral extradition treaties explicitly include the crime of genocide it would be difficult to imagine a situation in which an extradition treaty would be superceded by the Genocide Convention.

Question No. 9. Would any person charged with genocide be tried before an international tribunal, even if they are tried by their own nation for the same or an underlying act?

Answer. No.

Question No. 10. If this is true, would that not offend the Constitution's provisions against "double jeopardy''?

Answer. No.

Question No. 11. Would a person who commits murder of a person or a group of persons because of a racial or religious hatred, in one of our states, be tried for genocide in a federal court rather than murder or mass murder in the state in which the violence occurred?

Answer. No.

Question No. 12. Would a person tried in United States courts for the act of genocide, be accorded the constitutional and legal protections that an accused defendant enjoys for other crimes under U.S. law?

Answer. Yes.

Question No. 13. Would a person accused of the crime of genocide before an international tribunal be accorded the protection an accused person has in the United States, even if he is a U.S. citizen and the crime or crimes occurred within U.S. jurisdiction?

Answer. There is no international tribunal with criminal jurisdiction before which anyone could be tried for the crime of genocide (or, for that matter, any other crime). Should such a court ever be considered by the United States Senate it is doubtful that United States Senators would agree to the jurisdiction of an international criminal court without the protection for U.S. citizens accorded by the U.S. Constitution.

Question No. 14. Would a Congressionally passed statute expanding the rights of the accused, or an evidentiary rule of a judge that expands those rights, in a prosecution of an individual in U.S. courts for the act of genocide, subject to the legislators or judges to prosecution as well?

Answer. No.

Question No. 15. Would American military personnel, serving in time of war, be subject to punishment for the crime of genocide for acts that involve the taking of life of enemy troops, or the forced relocation of civilian populations in a “war zone"?

Answer. As a general principle the killing of enemy troops during wartime would not subject the killer prosecution under the Genocide Convention. However, as was undoubtedly the case, for instance, in Nazi Germany, such taking of life with the

requisite intent under Article II of the Genocide Convention as confirmed by Article I of the treaty could indeed subject such troops to prosecutions for genocide-if the intent was not merely to kill that individual, but rather that the individual was killed with the intent to destroy, "in whole or in part, a national ethnical, racial or religious group as such.” The “forced relocation of civilian populations” would not subject those doing the relocating to prosecution for genocide unless, again, the act were undertaken with the requisite intent and met one of the definitions of genocide in Article II.

Question No. 16. Would the treaty be self-executing, or would legislation be needed to enforce the Genocide Convention as it applies to the United States?

Answer. The Genocide Convention is not self-executing. Question No. 17. Would ratification subject any citizen of the United States accused of this crime to international jurisdiction, without the possibility of the United States to object to the jurisdiction of the tribunal?

Answer No.

Question No. 18. Would the state of Israel, or any of its officials and citizens be subject to international prosecution under the Genocide Convention, upon the complaint of Yassir Arafat or the P.L.O., that its West Bank settlemen policies constitute genocide against the Palastinian people?

Answer. No.

Question No. 19. If so, would Prime Minister Peres, or other Israeli official be subject to arrest while visiting the United States, and subsequent extradition, upon the complaint of the P.L.O.?

Answer. No.

Question No. 20. Could the actions of this government to reduce budgetary deficits by reducing entitlement or other social welfare programs that tend to disproportionately benefit ethnic or religious groups, constitute genocide?

Answer. No.

Question No. 21. Given that the Nuremberg Declarations found that the promotion of abortions among minority populations amounted to genocide, could not the location of abortion facilities in neighborhoods that are primarily made up of one race, constitute Genocide?

Answer. No.

Question No. 22. Do you believe that had this treaty been in effect, and Germany a party to it in the 1930's that Hitler would have been prevented from pursuing the elimination of the Jewish people, and the others that were persecuted?

Answer. All of these questions beg the question. By definition, a individual or national leader driven to criminality is a person who ignores the law. The strength of the American democracy, however, and the position of the United States in the world community, is that our statements and condemnations of acts of foreign despots often so focus world opinion against such actions that their effect indeed may be moderated. This, after all, is one of the current strategies of our government in response to South African apartheid policies. Whether Hitler would have been “prevented” from pursuing the elimination of the Jewish people if the treaty had been in effect is doubtful, since he did not stop the Holocaust until the Allies had crushed him militarily. But it should not be forgotten that it was Hitler who said, “who remembers the Armenians?” when speaking about his policies against the Jews. Thus, clearly, he was aware that world opinion is an important consideration, especially when a ruler seeks to pursue such fundamentally reprehensible policies.

Similarly, it is doubtful that Stalin's atrocities or the mass executions during the Chinese cultural Resolution would have been "prevented” by U.S. ratification. Likewise, the genocide undertaken in Kampuchea or the persecution of the Mesquito Indians in Nicaragua "stopped” by the treaty. But a hundred lives would have been saved-or even one life-because of U.S. ratification, the effort would have of course been well served.

It would be simplistic to suggest that the ratification of the Genocide Convention would stop genocide just as it is simplistic to suggest that the existence of statues in every state of the Union against murder has “stopped” people from committing murder. But there are certain fundamental norms of human decency and civilized behavior which are part of our law and the law of nations simply because they are so fundamental. Genocide is one and should promptly be made part of the law of the United States. Only then will the U.S. be able to pursue those international outlays noted in these questions.

Question No. 23. Do you believe that Stalin would have been prevented from fostering the mass starvation and executions of the Ukraine?

Answer. See answer to question No. 22.

Question No. 24. Do you believe that the mass executions of the Cultural Revolution in the People's Republic of China could have been prevented by this treaty?

Answer. See answer to question No. 22.

Question No. 25. Why were not the mass executions of Kampuchea stopped by the Genocide Convention?

Answer. See answer to question No. 22.

Question No. 26. Why is the persecution of the Mesquito Indians in Nicaragua not the subject of a genocide prosecution right now?

Answer. See answer to question No. 22.

Question No. 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. No.

Question No. 28. Does the treaty permit the United Nations 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. The treaty does not permit the United Nations or any other nation to cite the United States for committing genocide by failing to pass implementing legislation. However, another signatory to the treaty-not the United Nations or any other international tribunal-might attempt to bring a case before the International Court of Justice under Article IX for the failure of the United States to pass implementing legislation pursuant to Article V. However, since the treaty is not self-executing and since the proposed resolution of ratification of the treaty declares that the United States will not submit its articles of ratification until it has adopted implementing legislation, such a case could not, in fact, be brought. Thus, another nation would have no ability to sue the United States for failing to pass implementing legislation under Article V if such action were instituted before the United States ratified the treaty and subjected itself to the provisions of Article IX. Once it did ratify the treaty and thus become a contracting party it would, by definition, have complied with the provisions of Article v.

Question No. 29. What would constitute "causing mental harm” under the provisions of the treaty?

Answer. As clarified by the Administration and the report of the Senate Foreign Relations Committee repeatedly, "causing mental harm" under Article II (b) of the treaty means the to cause "permanent impairment of mental faculties.” This was stipulated in the understanding recommended by the Departments of State and Justice and the Foreign relations Committee since 1971. Such, permanent impairment would result from such measures as surgery and the application of mind altering drugs.

Question No. 30. Would the failure of the United States to act to restrain the persecution of a people in another country, subject the President or the Secretary of State to prosecution for an act of genocide before an international tribunal?

Answer. No.

Senator HATCH. Thank you, Mr. Moore.

We will now hear from Mr. Rodolphe J.A. de Seife. Professor de Seife is a member of the District of Columbia and Maryland bars, and a professor of law at Northern Illinois School of Law. He was in private practice for nearly 20 years with offices in Paris, France, and Washington, DC, after serving as litigation attorney with the Antitrust Division of the U.S. Department of Justice.

He was attached to the Morrocan Ministry of Justice as a Fulbright Professor of Law at the National Institute of Juridical Studies. Professor de Seife is fluent in French, German, and Italian. We are very happy to have you with us. STATEMENT OF RODOLPHE J.A. de SEIFE, PROFESSOR OF LAW,

NORTHERN ILLINOIS UNIVERSITY COLLEGE OF LAW Mr. DE SEIFE. Thank you. I am honored to be here today. With your permission, I would like to have my prepared statement placed into the record.

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