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Where Can Gonocido
charged that members of the Armed instant decision of whether to risk Trials Be Hold?
Forcu ol the United Sula have been Couri nuniul lor relaxing lu fullow ur. Aside from the answerability or guv. guilty ul gunucide in "uic allegou anas
dern, ur puninunout fur konurile il a
I tribunals in the calm aftermath of a ernments for violation of the conven- sacre of civilians in South Viet.
wur could consider the result of fol. tion on charges filled with the United namese village". If the United Sistes lowing a particular order to bave been Nations, the treaty provides (Article were a party to the Genocide Conven- genocide? For the Treaty abolishes the VI) that "Persons charged with geno- tion, she would necessarily have agreed
delense of subordinates that they were cide ... shall be tried by a competent that these soldien are subject to trial
but following order of their superior
oboen. tribunal of the State in the territory of in Vietnam under the provisions of Ar. which the act was committed, or by Licle VI and, if the United States and
International Penal Tribunal such international penal tribunal us Vielnain should ever have an extradi- Standing in the Wings? may have jurisdiction with respect to lion treaty, would be subject to extra
Opponents of the Cenucille Couventthose Contracting Parties which shall dition for trial in Vienam, even if
Liou have insisted that if the convetr have accepled ils jurisdiction." doemod or found innocent in this coun
lion were ratified by the United States, In an article in the January, 1970, try.
Hiere would loc uic posibility of the issue of this Journal (page 71), Bruno Of course, no extradition would be trial of an American citizen accused of V. Birker inadvertently omitted the necessary as to our American prisonen genocide before an international penal words "in the territory of which the in North Vietnam. That country, it tribunal when, u and it such a court act was committed" when he quolod may be assumed, would cite the Geno should be cotablished and its jurisdicfrom Article VI. In a letter to the edi- cide Convention, if we were a party to tion accepted by the United States. The tor in the April insue (page 296), the it, as our consent to the trial of those trial would be without the constituornission was corrected by Mr. Bitker, prisoners on genocide charges in that. tional saleguards by which he would Inut his January article runnhund that a camuntry, with the Nuromlarg trials as In porulotel in a court of the United United States citizen charged with gen. u wuctiouing procedeul
Sulon ocide under no circumstances could be
To this tho proponents of the con tried elsewhere than in a court of the What Has Happened to the
vention said in the Section report that United States "Nuremberg Dolenso"?
"the answer is simple. No such tribu. And in the report of January, 1970,
This suggestion in turn raines an
mal has bocn cnlslinal." They addal: ullver interesting, serious and danger. on the genocide convention submitted by the Suanding Committee on World ous question for the United States. The
Il one were established, parties to the Order Under Law to the House of
universally Cenocide Convention would bere the Delegales, the same egregious non se
plauded in war crimes trials, is that the optiun whether to nocept its jurimilia Bocused was following orden he was
lion or not. For the United States, that quitur is drawn to the effect that since
option would have to be independently there is no such international tribunal required to obey. Article IV of the
exercised through the Treaty Power, as is conloplulod usuler this articles, Conocide Convention provides: "Per.
that is wily with the advice and run no "American citizen could be do www cuinwilling genocide . . . slull le
veut ol lle Sonale by u two-thirdo vulc. prived of his constitutional right to punished, whether they are constitu
Issue is taken, in the first place, with irial by jury, or be forced inio a trial tionally responsible rulers public in some forcign court under proce
ollicials or privule individuals." As Vie luul-quoled slateinen. This is just
stated in the report of the Section of the type of action that, like recognition dures not American".
Individual Rights and Responsibilities: of a new foreign government, might be It seems especially diffcult to under. "The Genocide Convention make accomplished by an executive agree. stand this fallacious syllogism in light clear, in Article IV, that in respect of
ment without the advice and consent of of the provisions of Anicle vil of the the crimca spocisiod, nu one, not guve
the Senal. The point is well illustrated convention that genocide is not to be ernmental oficials, not privale individ. by the real case of the laternational considered political crime and that uaks, can cacape responsibility for his Anti-Dumping Code, concluded by the parties to the convention "pledge action through this (Nuremberg) de
the United States with seventeen other themselves in such cases to grant extra- sense."
nations in Geneva on June 10, 1967. dition", presumably for trial in "the Suale in the territory of which the act
We join in asking the rhetorical. All those countrica treated the code as
a lorinal Incaly requiring parliamenwas committed" (Article VI), "in ac
question posed in his dissent by Ben R
lary approval and so ratified it The cordance with their laws and treaties
United States alone dealt with the doc. Section: in force".
ument as an executive agrueincnt, and These jurisdictional and "extradi.
Would not the miliury strength of because certain of its provisions were
this nation and bence the nation iwell Lional" provisions raise important
in direct consic with corresponding
be endangered if in following orders practical problems for the United
of 1 superior oficer in the heat of bet provisions of Congressional tarifi acis, Suala. The authorities in Hanoi bavo
de subordinates would be faced with the code was not submitted to the Sen.
644 American Bar Association Journal
Gonocido Convention ale for its advice and consent for lear science, in the face of this wealth of ration of adherence to the Interna. of adverse action by that lowly. lackground material to the contrary, tional Court of Justice, it is kipulala
Mere punilily wouhl le nu pornctival that Americais umy real smural tlınt that the United States in in tu lar sul way in which tu awer the invalidity ul ratification ul the Cenucile Cuiventium justel to the porutses of thout exuurt un an executive agreeinent aacepting, in by the United Sules at this ume will lo dispules which are curentiully within behalf of the United States, the juris not carry with it the ultimate couablish her own domestic jurisdiction "as de. diction of an international penal tribu. ment of an international penal tribunal termined by the United States of nal established for the trial of ofiend. for the trial of citizens of the United America". en under the Cenocide Convention, Slules charged with commission of of. To circumvent that reservational une that convention iwell had ben ra. lenie thereunder?
wulguurd, it was provided by Article lilied by the United Slul.com
An American citizen or any other
IX ul the Cenucide Cuniverition: Nor can it be said cavalierly that it person residing in the United States
Disputes between the Contracting is no contemplated by the United
who is tried by an international tribu. Perries relating to the interpretation, Stales that an international penal tri dal created for the trial of persons
application or fulfillment of the pres bunal is lu lubliniad. "The minutes
ent Couvrut iuit, including those relui charged with the ullonne ul renucide ul the 716400 unuting of the Sixtla
ing lu the roupronil.lity of State for woull be deprival of many of the
Keturide or any al lloc athaer med en (Legal) Commillee of the General As righus provided in our Constitution for meruled in anicle III, wall lee wulenil. sembly of the United Nations, held at
persone charged with offenses gainst ted to the International Court of Jus Paris in October, 1948, contain a sig. the laws of United States in our na.
tice at the request of any of the parties nificant statement to the effect that the tional courts. Among these are the
to the dispute United States delegation sated that it right to be charged for a capital or in This article clearly overrides the "intended, at a later slago, lo show the
famous crime only on a presentment or. Connully Amendenent and subjocis the nood for the establishment of an app indiclinent of u krund jury and the
Unilat Siules to the unroerveal juris propriale international tribunal" in right to a speedy and public trial by diction of the International Court of connection with Article VI of the Gen.
an impartial jury of the state and dis Justice a to all matter involving the ocide Convention.
trict wherein the crime is alleged to "interpretation, application or fulfillGeorge A. Finch, a former Deputy have been committed. The privilege Death of the convention. Thus, if our Under Secretary of State, professor of against sell-incrimination and the pra Supreme Court should hold that I care international law at Georgetown Uni lection against unreasonable searches under the convention is within this versity, Vice President of the Ameri and seizures also might diseppear, country's domestic jurisdiction and the can Society of International Law and
Another reason militating against
conduct prolocled by the Fint Amend. alilor-in-chiel of its journal, in an ad. ratification of the Cenocide Convention
ment, any party to the treaty could draw belure the annual meeting of the
Lake the maller before the Interna. urines froin the provision ul Article socialy at Washington un April 29, 14%, wiel: "He prummals... le pora Ill (c) making punishable "dirock and
tional Coun ul Justics which nocul nol
follow vur Court's decision. It mighet vem genocide ... have been fruined joullic incilcument w worninit gunucide"
hold that the case was not within our vis-a-vis the Fint Amendment's guar. so a lo luke American doincalic questi Lions vuí us the jurisdiction of Ameri- it to my biere thul Here is at least anlees ol free speech and preau. Susice
domestic jurisdiction, and the United
Swiss would be bound by that decision can courts and place them under some
grave doubt under recent decisions of despite the Connelly Amendment. form of international jurisdiction." che Supreme Court as to the effect to
This is a constitutional consummation In a book on international enforce. be given, even by that Court, to such a
devoutly to be avoided. nem ul human righeli, l'ruleamur laul
Irealy provision in the circununa Cormley of the University of Tulus of different caser certainly completely
How Effectivo Could the School of Law stales: "A privale in incomprehensible to judges of an inter:
Genocido Convention Bo? dividual must be able to prosecule an national tribunal to whom our concepts
In the final analysis, the prohibition uction before an international tribunal of freedom of thought and expression
ol genocide by treaty must become an -in his own name against an oflend. might be chimeric mysteries al besl
exercise in lutility. Adolf Hitler would ing governmenL, particularly his own."
hardly have restrained the frightful The Bangkok Conference on World Reservations on Adherence • acts of genocide that gave rise to the l'eace Through Low, held in Seplen. Would Be Ineffectivo ber, 1969, unanimously adopted a reso It is extremely doubtful that objec. See Public Lav 900m, 2 Sul 1847 lution cornmending its commillec en Lions lo tie ratification of the conver.
(Ortler 24, 1968), 19 U.S.CA. I 160 metr
(Suppl.l, wowding retain provimin e suged in u pruject entitled "Toward u lion by the United Smalo cun le ula
He aula, and ila kazislative liniary in US Feasible International Criminal Court" viated by reservations allached to our
Congressional and Administer News
(188), VuL 359 3. See ale Luet and giving it all possible support and adherence. It will be recalled that by United Slies Law and the Ansi-Dua ping assistance. The Commully Amendment to the reser.
Code, 3 INT'L LAWYE MA (IMA). How can it be wid in good convation of the United States to iu docle.
5. Ser Phillip The Cenocide Convension, US ABAJ. (21, 625 (1949).
July, 1970. Volume 56 645
Genocide Convention convention, even if it had been in ex. the hands of nations whose peoples when an individual commits a crime istence and Germany had been a party have never known the freedoms guar. within the domestic jurimliction of a lo it during the Naxi reign el lerrur. antou umler our Constitution uhc wale wuuki chuse far more friction Imu. The Soviet Union and her Comminunist- power to judge whether thone freedoms Iween peoples and governments thau bloc allies were not deterred from the are being protected properly within our does the evil it seeks to correct. It 1968 invasion of Czechoslovakia by the domestic bordern
would tend to promote war rather than nonaggression provisions of the Char. It is submitted that an international lo maintain international peace and so lor ul the Unitel Nations
COUVainion where provisions nay loc curity within uue kedler und spirit of Te Crowcile (inveroolivu places in invaskal in un international lurum Une Charler ul Hoe mitral Nationen
American Bar Association Journal, July 1970, Vol. 56, op. 641-646.
TREATIES SHOULD NOT BE USED TO ENACT
By Eberhard P. Deutsch* (Statement made in behalf of the American Bar Association)
On September 8, 1949, at its annual convention in St. Lou
is, the American Bar Association, through its llouse of Delegates,
expressed the "sense of the 199ociation that the conscience of
America, like that of the (entire) civilized world, revolts against
are abhorrent to all who have a proper and decent regnrd for the
dignity of human beings, regardless of thc notionnl, ethnicnl, ra
cial, religious or political groups to which they belong; (And)
that Genocide as thus understood should have the constant oppost
*Member of the New Orleans Bar
ilen or llie gnuemment of the United Sintc. and or all of its
The llouge round, however, "tlant the ouppresalon and pun
tooliment of Genocide under an international convention to which it
le proposed the United States shall be a party involves important
opposing approval, by the Senate of the United States, of the Con
vantion on the Prevention and Pun lohment ol the crime of Genocide
"ng asubmitted" to 10 for its advice and consent by President Tru
man Ices than three months earlier
on June 16.
At Its midwinter meeting in Atlonta on February 23, 1970,
the House, by the narrow margin of 130 to 126, re-affirmed the po
allinn which it hnd inken in 1949, by voling down a recommendation
for reversnl of that position and for unreserved approval of the
thin miniement in mul mitted in support of the pon Ition of
the American Bar Association og recited above, and to record the
Jonckground ol that position which, in the last analysis, to simply