OONVENTION MAKES BOLDIERS PUNISHABLE FOR HERVING THEIR COUNTRY IN COMBAT Firth. If the Senate should ratify the Genocide Convention, it would make American soldiers fighting under the flag of their country in foreign finds triable and punishable In foreign courts-eyen in courts of our warring enemy---for killing and seriously Wöllnalng members of the military forces of our warring enemy. This is made indisputable by article 1 which provides that genoelde is puulshable under the convention whether it is committed in time of peace or in time of war, and by the fact that it contains no provision exempting soldiers engaged in combat from the coverage of the provisions of the convention. When soldiers kill or seriously wound members of a detachment of the military forces of a hostile nation, they certainly do so with intent to destroy, in whole or in part, a national group as such. Hence, their nets in combat full clearly within the purview of the convention. In such cases, they are triable and punishable under article VI in the courts of the nation in whose territory their nets are committed, or in such an International penal tribunal "as may have jurisdletion with respect. to those contracting parties which shall have accepted its Jurisdiction." These things being true, American soldiers killing or seriously wounding North Vietnamese soldiers or members of the Vietcong, or South Vietnamese civilians In South Vietnam, are triable and punishable In courts sitting in South Vietnam, and American aviators who kill North Vietnamese soldiers or civilians in bombing raids upon targets in North Vietnam, and who full into the hands of the North Vietnamese, are triable and punishable In the courts of North Vieturan No sophistry can erase this obvious interpretation of the Genocide Convention. ୮ CONVENTION SUBORDINATES THE AMERICAN GOVERNMENT TO THE WORLD COURT Sixth. If the Senate should ratify the Genocide Convention, article I would Impose upon the President, as the Chief Executive of the United States, the duty to enforce both the provisions of the convention and any nets of Congress implementing them as the supreme law of the land. Article V would obligate the Congress to ennet_legislation to give effect to all the provisions of the convention, and to provide effective penulties for persons guilly of genocide or of Khy of the other acts enumerated in article 111, and article VI would obligate the Supreme Court of the United States and all inferior Federal courts created by Congress to interpret and apply all of the provisions of the convention and of the acts of Congress implementing it to enses coming before them under the terms of the convention and the nets of Congress implementing such terms. Seventh. If the Senate should ratify the Genocide Convention, it would bring into play article IX which provides that disputes between the parties to the convention relating to the "interpretation, application, or fulfillment” of the convention "shall be submitted to the International Court of Justice at the request of any of the parties to the dispute." Under this article the International Court of Justice would be empowered to decree that thé Président of the United States, as Chief Executive Officer of the United States, had interpreted and applied the provisions of the convention incorrectly and by so doing impose upon the President of the United States its notions as to how the convention should be interpreted and enforced; the power to adjudge that legislation enacted by Congress to give effect to the provisions of the convention was insufficient to fulfill the obligations imposed upon it by the convention; and the power to adjudge that the Supreme Court of the United States and Federal courts inferior to it had interpreted and applied the provisions of the convention incorrectly and by so doing require these tribunals to apply its notions as to how such provisions should be interpreted' and applied to future cases coming before them. When their attention is called to the drastic powers which the ratiflention of the Genocide Convention would bestow upon the International Court of Justice in respect to ̃488“ Président, the Congress, and the Supreme Court and other Interior Fédéral courts, The proponents of rnfiflention assert that these'ngencies of the Government of the United States do not have to obey the rulings of the International Court of Justice if they deem that such rulings infringe upon the fundamental sovereignty of the United States. In so doing they ignore the solemn obligation assumed by the United States under article 94 of the "Each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party." The charter of the United Nations clearly contemplates that the United Nations will not interfere in the domestic affairs of any nation. The Genocide Convention goes a how shot beyond the charter of the United Nations. It undertakes to regulate certain domestic affairs of the parties to it by converting what have always been domestic crimes Into international crimes, and confers upon the International Court of Justice the vast powers set forth in article IX. Consequently, if the Seunte should ratify it, the Genoelde Convention would render the Connally reservation, which was designed to prevent the Interna tional Court of Justice from exercising Jurisdiction over any domestic affair of the United States, inapplicable to any of the matters covered by the convention, and would nullify the Yandenberg reservaflon to the jurisdiction of the International Court of Justice which glipulates that Amerleau acceptance of compulsory Jurisdiction of the Court shall not apply to "disputes arising under a multilateral treaty, unless all parties to the treaty affected by the decision are also parties to the cuse before the Court, or the United States specially agrees to Jurisdiction." What I have sald does not militate against the good Intentions of those who drafted the Genocide Convention, or those who favor its ratification. All of us are opposed to the systematie, planned annihilation of any national, ethnical, racial, or religious group. The existing laws of the United States and its several States are adequate to punish all of the physical acts of violence denounced by the Genoelde Convention. Hence, the Senate does not need to ratify the Genocide Convention in order to make these acts punishable as crimes if committed within the borders of our land. But the Senate should not permit itself to be persunded by the good intentions of the proponents of ratification to ratify a convention which would have such n tragic Impact upon the system of government which has always existed lu our land, and which for the first time in our history undertakes to make undefined psychological harms inflicted in some undefined manner Federal and international crimes. The American Bar Association has twice urged the Senate to reject the Genocide Convention—once În 1949 and ugnin iñ 1970. In losing. I urge every Senator to rend the booklet entitled "The Convention on the Prevention and Punishment of the Crime of Genocide" prepared by 30 of the most distinguished and patriotle Inwyers of America. (Statement made on May 22, 1970, quoted in Genocide Convention, hearings, Subcommittee, Committee on Foreign Relations, U.S. Senate, 92-1, March 10, 1971, pp. 1-8.) Pitfalls of the Genocide Convention by Orie L Phillips and Eberhard P. Deutsch ON SEPTEMBER 8, 1949, the American Bar Association, through its House of Delegates, expressed the sense of the Association "that the conscience of America like that of the civilized world revolts against Genocide... ; that such acts are contrary to the moral law and are abhorrent to all who have a proper and decent regard for the dignity of human beings, regardless of the national, ethnical, racial, religious or political groum to which they beling; [and] that Cenocide as thus understood should have the constant opposition of the government of the United States and of all of its people". The House nevertheless placed the Association of record as opposing ap proval by the Senate of the United States of the Convention on the Prevention and Punishment of the Crime of Genocide "as submitted" to the Senate for its advice and consent by Presi dent Truman less than three months earlier on June 16,2 At its Midyear Mooting in Atlanta on February 23 of this year, the House reaffirmed the position taken in 1949, voting down by a narrow margin a rocommomlation for reversal of that 1. The word "genocide" was cuined by the late Professur Raphael Lemkin (1900-1959) of the Yale Law School, whose parents were purged in Poland. 2 lu 1950 the Senate Foreign Relations Committee, headed by Senator Connally of Tezas, having before it the genocide treaty from President Truman for advice and consent, ordered hearings by a subcommittee. under the chairmanship of Senator McMahon of Connecticut Hearings were extensive, running over a number of days. Many persons appeared in support of ratification, Carl B. Rix of Milwaukee, a forinor President of the American Bar Association, the late George Finch of Washington, D, C, then and fur many years Editor-in-Chief of the American Journal of International Law and professor of international law at Gourgetown Univer sity, and Alfred J. Schweppe of Seattle, for. merly Dean of the University of Washington Law School and at the time Chairman of the position and for unreserved approval of the convention. The authors of this article are in complete accord with both the declaration of and the conclusion reached by the Association. This article is written as a record of the background of that position, which, in the last analysis, is simply that wholehearted concurrence in the lofty ideals that engender promotion of moral issues should not be permitted to substitute the ephemeral timue of thiume ideals for the enduring. fiber of constitutional limitations. The Genocide Convention originated in the Laited Nations. On December 11, 1946, the General Assembly adopted a declaration to the effect that genocide “is contrary to moral law and to the spirit and aims of the United Nations"; that "many instances... of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part"; and that genocide is a crime, whether it "is committed on religious, racial, political or any other ground." (emphasis supplied). The declaration invited "the Member States to exact the necessary legislation for the provention and punishment of this crine”. American Bar Association's Committee un Peace and Law Through United Nations, appeared and testified against ratification, pointing out the grave inadequacies and riska of the proposed convention. The Intimony taken at the hearings is part of the Senate recorda. After the 1950 bearings, the proposed convention became dormant for some twenty-one years, until revived by President Nixon in February, 1970. It appears significant that Dean Husk, win as Ausistant Secretary of State presented the State Department's position to the McMahon subcommitter in 1950, was Secretary of State for eight years under two revent Presidents, but did not revive the Genocide Convention even with a heavy Democratic majority in the Senate. Equally significant is the (mist that during the Einhower Administration John Fuster Dulles, the Secretary of State. announced that the administration would gui bring up the Genocide Convention. July, 1970 Volume 56 641 Gerocide Convention The United States joined in this declaration. Standing foremost as a world leader in the protection of individual rights, she could do no less. The au thors of this article are in complete and unequivocal accord with the fol lowing statement made by the Ameri can Bar Association's Section of Individual Rights and Responsibilities in its report on the Genocide Convention submitted to the House of Delegates in February of this year: ... The United States, which was founded on the basis of protest against government excesses, and which grew great in substantial measure because it was a haven and the hope for op pressed persons everywhere, should be in the lead in joining in the declara. tion of revulsion at the organized effort to eliminate a whole people during World War II, and of determination that such an effort should not be undertaken ever again. But the conviction of the authors is equally firm that having joined in such a declaration as to a matter which lies ultimately within the domestic sphere of each of the world's nations, the United States has gone far enough. She should not, in our opinion, join in a convention by which she would cominit herself in advance to protect the people of other nations against their own gov. ernments. Nor should she agree that such other countries may determine what is to be deemed to be genocide within the borders of the United States and invite them in advance, in the words of Article VIII of the Genocide Convention, to take through “the com petent organs of the United Nations, such action under the Charter of the United Nations as they consider appropriate" for the "suppression" thereof. The Section report itself makes this point abundantly clear. It is stated therein that under Article VIII of the Genocide Convention: Even if the complaint involved alleged prohibited action by one country against an ethnic group within its own country... the claim that the United Nations could not consider the matter because it concerned the domestic jurisdiction of one slate... would be foreclosed. The Security Council, or the General Assembly, or the Economic and Social Council would all be authorized to hear the complaint. In appropriate cases, where the complaint was borne out by the facts, the United Nations organs could recommend or decide on measures to be taken.... Treaties Should Not Be Used for Internal Government It is submitted that treaties with other nations are not the proper constitutional means for the government of the people of the United States in their internal affairs, which should continue to be regulated by our own federal, slate and local legislative bodies through enactments that have their foundation in our own constitutional processes. We subscribe wholeheartedly to the statement made by John Foster Dulles as Secretary of State, testifying before a subcommittee of the Senate Judiciary Committee on a proposed constitu. tional amendment to limit the effect of treaties us internal law within the United States: I do not believe that treaties should, or lawfully can, be used as a device to circumvent the constitutional procedures established in relation to what are essentially matters of domestic concern. The United States should] favor methods of persuasion, education and example rather than formal under. takings.... We do not ourselves look upon a treaty as the means which we would now select as the proper and most ef fective way to spread throughout the world the goals of human liberty to which this Nation has been dedicated since its inception. The authors of this article do not agree with the extravagant statement in the Section report that "in terms of a threat to international peace and security, the occurrence of genocide any. where in the work is as much a matter of international concern as, for exam ple, the spread of nuclear weapons"; or that "when some states-or, as in this case, 74 states consider a matter to be of sufficient concern to make a treaty about it, then realistically it is of international concern". This is the old bootstrap doctrine by which a domnestic issue, not subject an such to regulation by treaty, can be transmuted, by the very prohibited act of making it the subject of a treaty, into the arena of international affairs subject to regulation by treaty. It is the same doctrine that gave rise to the 1950 dictum by the Department of State that "there is no longer any dis tinction between 'domestic' and 'for eign' affairs"," If the limitations contained in the Constitution of the United States are subject to circumvention by this juris. prudential sorcery, the matter bevomes one of broad constitutional policy rather than of strict constitutional law. Our constitutional philosophy should not be so impaired by transplanting matters within our domestic jurimliction into the international forum, subject to legislation by treaty and adjudi. cation by international tribunals. Genocide by Government Is Not in the Convention There can really be no question, us stated in the Sextion report, that "the crimes which gave rise to the Genocide Convention-mass murder of Jews .. by the Nazis was, of course, done with the encouragement and indeed at the direction of the government of Germany". It is the position of the authors of this article that in order for genocide to be an international crime, and therefore a matter of international concern appropriately the subject of a treaty, it must, by definition, be.com. mitted with the complicity of the gov ernment concerned, not merely by indi viduals. When the convention was being for. mulated, the representatives of the United States, backed by those of other Western nations, sought as a sine qua non to have genocide defined as having been committed "with the complicity of government", because its "delegation felt in fact that genocide could not be an international crime unless a gov. ernment participated in its perpetra. tion". 3. State Department Publication 3972, Foreign Policy Series 20 (1950). 4. See recurd of the proceedings of the Ad Hoc Committee in 1948, and especially the statement made on April 15, 1948, by Mr. Makuum of the United States, chairman of the committee, as to the pumilions of the United States, and also the proceedings and roles in the Sixth (Legal) Committee (75th and 128th meetings), and the Official Records of the Third Session of the General Assembly. Part L "Legal Questions". This demand was rejected, and under Article IV of the convention states-parties are required merely to enact legislation providing punishment for "persons committing genocide" and requiring the trial of "persons charged with genocide", whether they are "public officials or private individ. uals". Instead of including government complicity as an element of the offense, Article VIII of the convention permits "the competent organs of the United Nations" to interfere in the domestic affairs of member nations by hearing complaints as to the conduct of their individual citizens, and to "take such action .. as they consider appropriate" against them. The type of problem with which the United States might be faced in this regard, if it became a party to the Genocide Convention, is illustrated graphi cally and startlingly by a recent news iten in Time of December 12, 1969, which reported that a "San Francisco lawyer who represents the [Black] Panthers... revealed plans to go be fore the United Nations and charge the United States with 'genocide against the Panthers". Vague Language Causes Problems Another constitutional question of some significance arises from the vagueness of certain provisions of the convention. It provides in Article II, for insaner, that genocide commisis of certain "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such" by "(b) causing serious... mental harm to members of the group". There would seem to be grave doubt as to whether so vague a provision as that of "mental harm" could be cured by implementing legislation such as, for example, that proposed by the Sec. tion of Individual Rights and Respon sibilities in an annex to its report on the convention, which refers to conduct "with the intent to destroy" and which "causes serious harm to the mind". Even the February 19, 1970, message of the President to the Senate, with its attached letter from the Secre Genocide Convention ABOUT THE AUTHORS: Orie L. Phillips retired in 1956 as Chief Judge of the United States Court of Appeals for the Tenth Circuit, and he has served since as a senior circuit judge. He was a longtime member of the Association's Committee on Peace and Law Through United Nations, and he recelved the American Bar Association Medal in 1950. Eberhard P. Deutsch, Law Through United Nations Committee and has been active in the Section who practices law in New Orleans, has been Chairman of the Peace and of International and Comparative Law. He now is Editor-in-Chief of The International Lawyer. tary of State, requesting advice and consent to ratification, recommends that this be done with an "understandconstrued as having a clarifying nar. ing" that the words "mental harm" be row meaning. Language so broad and vague, if not unconstitutional in legislation defining crime, could well have been held to characterize racial segregation prac tices prior to 1954 as genocide. In Brown v. Board of Education, 347 U. S. 483, the Supreme Court held ex pressly that separation of Negro children "from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone ... [and] has a tendency to [retard their] education and mental develop ment". "Political" Groups Removed from the Convention Just as the United States and her po litical allies were unable to ga “com plicity of government” into' the definition of genocide, they also acquiesced at the insistence of the Communist bloc in the omission of "political" from the categories of groups as to which genocide is to be prohibited. The original United Nations declara. tion denounced genocide whether "committed on religious, racial, political or any other grounds" (emphasis added). When this declaration was. being converted into the convention, the Communist nations insisted on omission of "political" from the listed cat. eguries, and the United States capitu. lated. None of the Communist nations, therefore, can be charged under the convention with committing genocide by inflicting intolerable "conditions of life" un a political group and socking to destroy its members. When this point was raised in the House of Delegates last February, Nicholas de B. Katzenbach, a former Under Secretary of State of the United States said, in effect, that omission of "political" from the convention was simply a "trade" in the course of compromise between the Communist and Western nations by which "we suc ceeded in getting 'ethnical' included among the groups in place of 'political". Considering that “ethnical” in-its ordinary moaning is defined as "pertaining to or designating races" and that "racial" already was in the draft of the convention, a compromise for the insertion of "ethnical" in return for the omission of "political" seems to have been a one-sided trade, with our side the loser. The elimination of "political" groups and "with the complicity of government" now permits genocide where it Koes on (Czochoslovakia, Hungary, Africa, Asia). Sir Hartley Shawcross, a former British Attorney General, said that the adoption of the convention will delude people into believing that a great step forward has been taken, whereas nothing has been accomplished. This "legislative history" as to the circumstances under which "political" was omitted on the insistence of the Soviet Union and other Communist nations, so that assassination of political groups is not prohibited by the convention, is explained and confirmed by the refusal of the Soviet Union to ratify the 1957 Convention on the Abolition of Forced Labor, because it prohibits the imposition of forced labor as a means of political coercion or as pun ishment for the expression of political views opposed to those of the govern |