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do, the case "shall be trica by n competent tribunal of Ilir stale in lolin (.crrilory of which the activas commiliral," or loy an international Tribunal.

It doesn't snynnything about trial in the jurisdiction of which the person linppens to be n iintionnl is he was anakhil

. in re fenocielid 1001 in a sorcign country. Thint foreign coutry has completa jurisdiction, I think cxclusive jurisdiction, over a citizen of the United States illic coinmits nn offense there and hic will loc trical there without the protection nccorried to him by the Constitution of the United States.

CONVENTION OES NOT PREVEN'T GENO:100; In my judgmenl., gentlemen, and I hope you will seriously consider it, wo nre all strongly opposed to genocide, I think genocide which is ono os moss destruction of people, if you want. In use that clelinition, or of parts of groups of people, is a very licinous crime. Neverthcless, this convention docsn't prevenil. il. 11. permits, and we have cross cxamples of it in recent years, of the clcliberale destruction of the political opposition, and thint is not genocide. Nobody here has filerin complnini with the United Nations that Russin commillel genocide which it killed Ilungnrinns, when it killed Czechoslovakians, and when it killed Poles. They were killed as political opponents, and lint right. Tras rcscrved.

Asn mailer of incl., l.bcrc has been much discussion in this committee nbout Vict.nnm. There has been much written and speculated in U.S. troops were withdrawn immecliairly from Vietnam there would be mass assassination of South Vietnamese by the North Vietnamese when l'hey lake jurisdiction of the country, if they have power in doil. Yel that will not be genocide, because they woull merely be destroying the political opposition.

So I suggest, gentlemen, t.lint you have before you a convention chat clocs not provant genocide in the instances that are lagrantly in public notice nnd, sccondly, it makes n lot of problems for llor Hitri Slntes.

Nobody lins clorgel l.lic. Sovicis wille genocide. llers is a book which charged the United States with prenoriile against the Nero people, and they take it scrinusly, if you take this opportunity in rool Inis book. They clnim linen llorine Things that thor United Sintes lins dono lo libc. Negro prople in one form or nnollier non gonoride within tho mcnning of this convention, and it is on file in the Unitral Notions.

Now what the United Nalions will slo no111. il. I Ilona'l linow. Il.lons recently been aclivnice, but blint is one of the things we forc. Il'c aurin going in low chorged with all kinds of genociile bout this Communist countrics nrcnot. I sulmil. to you gentlemen that the trendy ns presentril onglil

. niol. 10 lvo rntifier log iho U.S. Sennir logo wny of giving its neviem and conseil to the President's transmission.

(Genocide Convention, hearings, Subcommittee, Committee

on Foreign Relations, U.S. Senate, 92-1, March 10, 1971, pp. 54-57.)

UNCONSTITUTIONAL USE OF TREATY-MAKING POWER

By Senator Jesse Helms of North Carolina

Ratification of the Genocide Convention would mark & ratershed in the histors of law in tbe United States. If approved bs cbe Senate. It would bring about pro1onad cbanges in the independence of our legal system and the objecants of our system of Justice. Ratibcation of this Coorention rould amount to an unmo. • stitutional use of tbe meats-making porer of the loited States. It would

violate basic principles of our Constitution and fundamentai teněts

öt internacional 1971. While the notion or a treats to prevent genocide has emotional appear in the abstract. the dificult i translation sucb probibitions into cordeble lat mithout doing violence to our sostem of justice bas prored in he insurmountable.

The scope of the treats:makin power of tbe lnited States is ceined and limited or both the Constitution and hasic principles gorerding tbe la ni of na. tous. Justice Sutherland made clear the relationsbip berteec constitutional lar and international la or in derermidin: U.S. tre:its porrer in the amous case of ibe [nited States r. (urtier-Trinht Frport Corp.. :-99 T.S.304 (1936).

Tbe poorer of the Onited States to make treaties resseci in the national soceronet, dot as one of the porers granted to it lif the States through the Constitttion, but as a natural and necessary part of its sorereistir. “As a member of tbe famils of nations," Justice Sutberland onserred. "ibe right and power of the tnited States in that field are equal to the right and power of

the aber members of the international family. Olbe.Tiise, ibe Unired States is not coupiletels sorereign."

However, the States did relate the exercise of thai shorter in the Constituie tion. The most oliTious regulation of the treats-baking panier is Article II. section 2 o ibe Constitution which prorides tbai trea:ies shall lie made "obs and will we ndrice and consent the Senate" and ttai' a Tc-ibirds Toie of the Senaie is decessars for ratibcation of a treats. Ouier limitations hare lwen derelored over time b: tbe rers process of operating & urement under the Constitution. This traċition. liepinnide vith the drailers o ibe Constitution. bas limited tbe trearr-making power to those areas of concert wbich are of international Characte. Toomas Temerson Fiotë in bis madvai of parliamentary practice Tbarmowe general roer to make treaties, the Consituciod musi hare intended to comprebenc odls thinse objects Thich

are usually regulated or treats, ang cannorle ofberntre regulated.

TI tre appie Vi. Tezerrovstest for tbe constitutionalls germissible use of the treats voter to the Genocide coprention, re fod the Coorention deficient Genocide is a matter thich falls outside the constitutional

score of the treats. makine joke. TÄNEM 6075 COUDie First. Fenocide is a natier which in tbe exception of the present coprention, bas dever been requiated up treats or customary international lam. Although tbe word "genociüeiiseli basibe of Yairls Tecept origin, the acts which li describes bare been occurrid; long before this century.

Historicalls. acts of genocide bare not been considered to be mithin the domain ni international lar sigce ther (nostitute criminal acts alreads regulated us tbe domestic

lat of all cirilized Darious. The acts defined his te Genocide CODFed. Ton continue to HE SC probibited IT the domestic lan's of almosi erers coupirs of the world. Hence, J: Jefferson's second test also is nnc pet lis tbe CoDreption ; songiels, iba ibe amarec which cannot orberirise be rezulated.

Voting cenocide. as such, a crime againsi the United States or of a particular $1:11€ can love done mji!)out the assistance of a treats. The legislatire con el ni

wustess anu Saldeslatures is sufficient to proteci americus from these acis Uirough our rarious criminal codes

If genocide is of concern to the people of the lipited States. mould dot tbe mise nurse of action be to enact domestic legislatiov? 11 a sjkcióc legal probili. tion of genocide is necessars, as a sign to the world that Americans orpore genocide, tuen obs hare tbe supporters of the Coorention noi lirought forward legislation to amend tbe present federal criminal code in prodiluit genocide! The Inct that bredchári másliten otroduced durin; the treats-sered fears in bich ratióca tion of ibe Cobreption bas been considered redeces dot onls on the uopriers of enaciin such lairs, but also upon the necessits of doing. 80,

The classic statement on the imited score of the Tabina Logo Tas made lis Min Charles Frans Busues. just before be beca de CuieJustice of the United Siates and after be bad been Secretary of State. As President of the American Sociers of Iciernational Law. Chief Justice Engbes said tbat the treats Lower"is to deal with foreieu nations frith regard to maiters of inierpational concern. It is not a power intended to be exercised ... tritb respect to masters that bare vo relation to international concerns ... There (is) a limitatiow upon the treat-making poster thai is intended for the purpose of Daring treaties made relating to foreign affairs and pot pake lav fo: the people of tbe United States in its internal concerns."

The noted international legal scholar, Charles Cbenes Esde, acreed mith Chiei Justice Huebes add maintained that: "bs tbe adorood or cbe Coosaturion tbe Republic as a Sizce relinquisbed the capacity to concluue treaties gesiened or calculaied to restric: the American Jople in tbeir surels internal concerns."

Tbe Genocide Copreation also violates this test of constitutionalits. It is the essence oi tbe Genocide coprention to regulate tbe "American people in their purels internal copce.s." Article II of tbe Codreption desnes fire categories of offenses which consecute the crime oi genocide. These categories include aces bich cause death. bodils injury, mental barm or kidnappir. o: members of a national, racial. elbpical or religious group. Toe Codreption provides that fedcncide. conspiracs to commit fepicide. public incitemes: in conci: genocide. ni. tempt to commit genocide and complicits id genocide shall also he punisballe. Thirre crimes, As defoed big ube Coorention, are aprilicalile ir Americans actins Tiihin tbe jurisdictio: o: tbe t'njred Sutes. l'oder 4:ucie l'In the Ceresitii. tinn. tbe Gedakcide Correntioc. un ratification.. till !werde iba curieme lar! The land and will decessarils i enforced just as ans recriod of the Consiitnsion or las ng Congres. I: mili bare immediale domestic eplicaiion Es criminal law.

The most important duis of ari nation under internatinaa! la is to por: its esternal independence and iis internalisisdictica The Gencide coprencon Fiolates both thesë essential aspeces of national sorereignty. lis basic goal is to internationalize che domestic cricipal laws of the nations whicb are parties io it. As such, Töited Suites ratification of tbe Cooreption rould rialase the es. : teroal independence and idrerbal jurisdiction of the American legal system.

Criniral law is rrithin ibe "reserred domain" otbe domestic jarisdicion of a dadon. It is a general principle of international larr thai a Slate bas jais. diction rith respect to aos crime committed in bole or in part within its tertitors. In tbe famous international law case kdoto as The Over The Dep. a laited States court beld that tbe domestic criminal lair of this cocotrs is not

ibe proper subject of a treats. The court stated: { "iiis pot7bë function of treaties to enact the ... criminal lart of a pation ..

Vor is ibere ans doubt that the creats masing power has its limitations . Certaintis tbat no part of the criminallar of this coudiry baserer been enacted by treats." (5 F.2d 525L

Set, this is indeed ibat ratification of the Genocide Coorention would accomplisb.

The regulation of international activits of the conduct of one dation to an. other-is tbe essence of the constitutioon test of tbe treats.making porter. The treatt power my only be esercised with

respect to matters thich directiesecr dations in thei: relationship Tith each other. Ir short, treates, in the words of former Secretars of Siate John Foster Duries, become "codiraces te wees da. tions as to borr tbes sbould act." But, by omitting zorernments from those_re? sponsible under its provisions for acts of genocide: the Genocide Coorentio is not a contract between Dations as to how thes sbould act, but a contract bertrees a nation and its citizens. as to borr thes should act.

The America. Law Insutute, In its Restatement of tbe Foreira Relations Las of tbe Toited States, summarizes the constitutional limits of the treaty.meking power as folloirs :

"40 international agreement of tbe United States must relate to external concerns of the nation as distinguished from matters of pure!s, internal_painre. As the effect of international agreements is the creation or modiñcarinn rire. lationships under international law, it rould be inconsistentlo ntilize inen for the regulation of matters bearing no relation to intercational airs.

As in the effect of tbe Conreption concerning the actions of nations in their relationships with eacb oiber is so minimal that it can bardly be said to meet this basic test.

Doring nearls two bopdred years. tbe constitutional pornose of the treats. mabicg porrer of the United States bas dot changed. Wberber measured he Mr. Jeffersoo's test or tbat of Chief Justice Hughes or tbe American LAN Insri. tote. it is simplr to promote the international interests of the Caired Sta:es his securing the action of foreigo gore.nments. I do not beliere that treaties should. of lawfulls can be used as &_derice to circumrent the constirurilon cedures relating to matters of domestic concern. Il ratised. thë Genocide con. Fention in take effect iä the

United States as domestic criminal lair. Tbe constitutional propriety of ratifcation of tbe Genocide copréation must ultimatels be judged bs the end sought to be achiered or the Conrentica. The : sobstsotial endel the corrention is not to regulate the actions of one gorern. mentin ndotber. Rather. it is an acteeredt entered into 15 & Dumber states: to alter the criminal law within their respective de estic jurisdicinc. A cousti. rctionally proper treat must be more than a mere subter ugelior tbe enaci. ment of domestic legislation. The Genocide Cooreation is not.

(Genocide Convention, hearings, Subcommittee, Committee

on Foreign Relations, U.S. Senate, 95-1, May 24, 16, 1977, pp. 104-106.)

THE GENOCIDE CONVENTION--TODAY AND TOMORROW

By Senator Jesse Helms of North Carolina

The United Nations Convention of Genocide responds to a deeply felt human need. The horror of genocide developed after World War Jl from a gradually expanding awardness of the Jewish Holocaust. This international perception grew backwards in time, as the understanding of genocide gave a name to the crimes against the Armenian people and the Ukrainians. Yet even though the Convention has been in essect since 19951 for those nations which have ratified it, and today 96 countries have ratified it, the Convention remains a dead letter in the face of unspeakable crimes against the Tibetans, the Cambodians, the Sikhs, the Afghans and a score of ethnic groups in Africa.

Why has the Convention been a dead letter?
Why has not a single case been brought under the Convention?

Some allege that the reason is because the United States, the most powerful nation on earth, has signed the Convention, but not ratisied it. Yet there is nothing to prevent Great Britain, France, or Japan from going on the offensive against the perpetrators of genocide today. Nevertheless they do not.

Would the United States do so if the Senate ratifies the Convention? To bring charges of genocide against a nation would result in an almost irreparable break in relations. When this nation is reluctant to arraign the Soviet Union for a crime such as the shooting down of KAL 007 (and at the very least a breach of the multilatcral civil aviation treaties), or for scores of plain violations of the strategic arms control treaties, is it conceivable that we would act against breaches of the Genocide Convention?

Moreover, there are serious conceptual flaws in the present construction of the mechanisms which are supposed to make the trcal.y work. Indeed, the desiciencies are so serious from a practical point of view that there is scrious doubt that the Convention could work at all. Ambiguities of drafting, irreconcilable differences between political systems, political compromises, and a modicum of wishful thinking all combine to make the Convention a virtually unworkable arrangement. Even with ratification by the United States, the Convention can not and will not work to prevent or punish the crime of genocide.

Yrt there is a humano wish to memorialize thosc who died in the llolocaust of World War II. The Convention is indeed a rhetorical statement, an expression of an international consensus against the crime thot scroks to exterminate pot just men and wonien, but a whole ethnic and religious group. The world dwes a debt of grati. tude to the victims of the Holocaust for raising the sensitivity of all nations to these crimes against humanity.

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