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gap that, rightly or wrongly,16 was found at Nürnberg. Nevertheless, the Genocide Convention was designed to be more than a merc statement, and it makes two provisions for enforcement. First, it provides (in Article V) that all contracting parties must undertake to enact the legislation necessary to punish persons guilty of the crimes enumerated in the first three articles. Second, it provides (in Article VIII) that any contracting party can call upon the competent organs of the United Nations-including the General Assembly and the Security Council-to take such action as they consider appropriate for the prevention or suppression of genocide or the criines associated with it. Thus, the Convention contemplates both that states shall prevent or punish in their own territory acts by individuals prohibited by the Convention and that the international legal system-within its various limitations-shall prevent or punish acts by (or in complicity with) states, wherever they may be committed. In addition, the Convention contains in Article IX an agreement by all Contracting States to submit disputes about the Convention to the International Court of Justice.16
15. Considering the other innovations made at Nürnberg, including the basic step of formulating the crime after the fact, a link of the extcrmination policies pre-1939 to the aggressive war that was the major grievance of the charge might well have been sustained. Sec, e.g., Wright, The Law of the Nürnberg Trial, 41 Am. J. Int'l. L. 33, 61-62 (1947). For an explanation of thc rcason for the Tribunal's hcsilancy and the scquel, see Lemkin, Genocide as a Crime Under International Law, 41 Am. J. Int'l. L. 145, 148 (1947).
16. The remaining Articles, X-XIX, are so-called "final clauses", relating to language, clicctive date, ratification and accession, duration, and denunciation.
1. The Convention on the Prevention and Punishment of the Crime of Genocide is an international commitment to decency and morality consistent with the American tradition. It does not, of course, stand alone. Like other efforts throughout history, from the Ten Commandments through the Magna Carta, the English Bill of Rights, the French Declaration of the Rights of Man and the Citizen, the United States Bill of Rights, the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution, and the United Nations Charter, the Convention is a statement which advances individual rights and human dignity. The United States, which was founded on the basis of protest against governmental excesses, and which grew great in substantial measure because it was a liaven and the hope for oppressed persons everywhere, should be in the lead in joining in the declaration of revulsion at the organized effort to eliminate a whole people during World War II, and of determination that such an effort shall not be undertaken ever again.
2. The great documents of human rights have taken vari. ous forms. From the laws of Moses to the pact between King and nobles at Runnymede, to the charters of the English, American and French Revolutions, to the constitutional amendments of nineteenth century America, the essential clement was a statement of the rights of free men, coupled with punishinent or threat of punishment to those who would abridge these rights. This pattern, too, was followed in the documents growing out of the rebirth after World War II, among them the Convention against Genocide.
Until 1945, the efforts to legislate internationally were very limited. The idea that the practices of states themselves could be illegal or could be made illegal dates from the twenticth century, and with one or two exceptions, from the end of the. Second World War. The Genocide Convention is designed to raise to the level of an international crime certain horrible acts, such as the esfort of Nazi Germany to exterminate all the Jews within its domain, or atteinpts by other countries to exterminate other racial, religious, or ethnic groups within a given country
The desinition of genocide as of international concern refiects also the recognition that genocide is typically associated with threats or breaches of the peace. The most flagrant cases of genocide have occurred in major and “total” wars. Even lessor instances have tended to provoke retaliation, intervention by third parties, and a spread of war and devastation. Thus, steps to curb genocide are steps in the direction of preservation or restoration of peace.
3. The Genocide Convention recognizes that both states and individuals must be deterred in order to minimize the risk of genocide. Accordingly, states are made to answer in international organs-for example, the United Nations Security Council or the United Nations General Assembly, for actions taken by their governments that might constitute genocide, or actions taken in their territory-even without official government sanction such as by guerrillas, commandos, or the like. In other words, a state is given-properly—the affirmative obligation to prevent and punish genocide within the area it controls.
In addition, individuals arc told directly and cxplicitly that they cannot hide bchind actions of governments in which they participatc. Whcthcr in anticipation of a war crimes trial such as those after World War II, or in anticipation of a change in government internally, all those who support or execute a policy of genocide are warned that the world will not tolerate or excuse their behavior.
Thus, while no one can be certain of the effectiveness of any given documents, the Genocide Convention goes far to make genocide unattractive even for those who would not shrink from it on moral grounds.
4. Earlier opposition to the Genocide Convention seems to have stemmed largely from a fear of expanded use of trcatics gencrally. That fear is no longer relevant, as treatics by the thousands have been entered into by the United States and others in the past twenty years. One particular aspect of this fear, that by the treaty process the United States government would seek to enact civil rights legislation otherwise not constitutional or not possible of passage, has also been overtaken by events, as the major federal civil rights bills and scores of judicial decisions have removed whatever doubt there might have been in 1949 about the powers of the federal governinent in this area. Neither the Genocide Treaty nor the treaty power generally has played any part in these developments.
In addition to the general objections to the Genocide Convention, a number of specific provisions of the text of the Convention were criticised, some as providing "loopholes", others as extending coverage of the Convention too far or raising conflicts with the United States Constitution. None of these objections stands up to careful analysis.
5. The Genocide Convention is now twenty years old, but it is a living and important document. Our friends are confused, our enemies delighted, at continued United States hesitation about the Convention. Adhering to the Convention now would be a real step in the advancement of America's national interest.
1. THE GENOCIDE CONVENTION IS A DOCUMENT OF IIUMAN LIBERTY CONSISTENT WITH AND IN THE FURTHIERANCE OF THE AMERICAN
The direct moving cause of the Genocide Convention, as alrcady noted, was the systematic attempt by Nazi Germany to cxterminate the Jews of Europe. The word genocide was coined in connection with a description of the policies of Hitler and his henchmen." But the essential element of the crime goes back long hefore the technical perfection of brutality achieved in the twentieth century.
The Romans not only conqucrcd, but destroyed the people of Carthage; the Romans atteinpted to root out and destroy the carly Christians; Mohamed boasted that he eradicated a Jewish tribe; during the Middle Ages, Crusaders attempted in various instances to eliminate men, women and children of the other faiths; Cortes in Mexico, Pizarro in Peru, and various North Americans as well, systematically climinated nations, races or tribes of Indians. It is not necessary to present a complcte list here.' The point is that on numerous occasions in the pastrecent as well as remotc-statcs, lcaders, and peoples with whom we scela cultural kinship resorted to policies today decmed wholly unacceptable. This change in attitude finds its expression in the Genocide Convention, just as other changes in atti.
17. The author of the word was Professor Raphael Lemkin, sce R. Lemkin, Axis Rule in Occupied Europe, 79.95 (1914). The word comes from the Greek genos (Latin genus) = race, tribc, or nation, and cacocre = 10 kill. For a brich history. scc 1.cmkin. Genocide as a Crime Under International Law, 41 Am. J. Int'l L. 145 (1947).
18. Scc, e.g., Lcinkin, Genocide as a Crime Under International Law, 1 U.N. Bull. 72 (1948): N. Robinson, The Genocide Convention (1960).