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associated with threats to or breaches of international peace and security. The chief instance, of course, which gave rise to the Convention is associated with-indeed was an integral part of the greatest holocaust that man has yet scen. Just a glance at more recent disputes, such as between India and Pakistan, between Nigeria and Biafra, Grecks and Turks on Cyprus, between Black and White in Rhodesia and South Africa, between Arab and Jew in the Middle East, shows how closely ethnic hatreds, national combat, and world peace are tied together. Whatever restraint an international document or treaty can have on the eruption or conduct of such disputes, on the behavior of victors or the revenge of vanquished is repaid a hundredsold in the overall prevention of world war. No one, of course, expects any treaty or indeed any law to be one hundred percent effective as a restraint on conduct of aroused peoples. But the relevance to the international community, in technical terms the subject of international concern-cannot be doubted. Seen in terms of a threat to international peace and security, the occurrence of genocide anywhere in the world is as much a matter of international concern as, for example, the spread of nuclear weapons. 20
26. Compare the Treaty on the Non-Proliferation of Nuclear Weapons, signed at Washington, July 1, 1968, S. Exec. H. 90th Cong. 2d Scss. (1968).
III. THE GENOCIDE CONVENTION PROPERLY FOCUSES BOTH ON STATES AND ON
A. States Are Made Answerable Both for Commission
and Tolerance of Genocide
The crimes which gave rise to the Genocide Conventionmass murder of Jews (also Poles and Slavs) by the Nazis was, of course, done with the encouragement and indeed at the direction of the government of Germany. Article VIII of the Genocide Convention makes it clear that were such an act to occur today, any other contracting party coula bring the matter to the attention of the appropriate organ of the United Nations. Even if the complaint involved alleged prohibited action by one country against an ethnic group within its own country, for example, by Cyprus against its Turkish population or by Turkey against Armenians within its territory-the claim that the United Nations could not consider the matter because it concerned the domestic jurisdiction of one state within the meaning of Article 2(7) of the United Nations Charter 27 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, including fact finding, investigating, and, if the complaint showed a threat to international peace and security, sanctions under Articles 41 or 42 of the United Nations Charter.
Apart from the defense of domestic jurisdiction, a state accused before the world of genocide might contend that it was not the author of the acts complained of. Recent assertion by the governments of several countries in the Middle East concerning the activities of the "Fcdayecn"-whether true or false
27. "Nothing in the present Charter shall authorize the United Nations to intervene in matters which are csscnlailly within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter. . .
-suggest that the possibility of a state's seeking to disclaim responsibility for terroristic activities within its territory, are not as remote as once thought.28 Such a defense, however, would also be unavailing. By Article V, thc Convention places on all contracting parties the obligation of punishing persons guilty of genocide (or of the accessory crimes listed in Article III) on their territory. Nor could the absence of domncstic legislation be a defense against states accused of harboring perpetrators (or accessorics) of the crime of genocide. As soon as a state joins the Convention, it undertakes to enact, in accordance with its constitution, the necessary implementing legislation.29 Thus while a state cannot be forced to enact legislation, and of course a court (or jury) cannot be forced to convict an accused person or persons, the Convention denies to any state the right to “wash its hands” of a charge of genocide alleged to have taken place in its territory, or to have been planned in or carried out from its territory.
B. Individuals Are Made Directly Responsible for
Participation in Genocide Perhaps the grcatcst lesson of World War II was that a small determined Icadership at the seat of power can move an otherwise civilized and decent people to commit the most horriblc barbaritics. Everyone who has traveled since World War II to Japan returns with amazement that the friendly people he (ncountered were the same who, for example, raped and mur. dered their way through the Philippines. Everyone who has traveled in Germany is astonished that the decent and hardworking people he has met tolerated-and staffed-right in their
28. CI. Noic: Genocide, A Coinıncntary on the Convention, 58 Yalc L.J. 1142, 1147 at n. 40 (1949).
29. On June 6, 1969, the Economic and Social Council called for reports by all Contracting Parties to the Genocide Convention of their implcnienting or otherwise applicablc lcgislation. U.N. Doc. E/Rcs./ 1120/XLVI (June 17, 1969). As of September 1969, 16 states have replied. Sce U.N. Doc. E/CN.4/Sub.2/303 and Add. 1-6. For a possible form such implementing legislation might take in the United States, see Appendix C.
midst the most horrible instruments of torture and destruction.80 The answer given uniformly at all levels, from private conversation to formal interrogation to the major War Crimes Trials, is that the decision was not the individual's, but that he was obliged to follow orders. At the highest levels, as for Göring and Hess,81 or for the most egregious offenders, like Adolf Eichmann,82 the defense of supcrior orders was siinply not accepted. At lower levels, the defense was often accepted, at least de facto.
The Genocide Convention makes clcar, in Artcile IV, that in respect of the crimes specified, no one, not governmental officials, not private individuals, can escape responsibility for his actions through this defense.33 To the extent an official-in a legislature, in a cabinet, an Army Coinmand, or whereverlooks ahead, whether in a situation of war or of peace or in between, he must now know that if he gives his support to a proposed act of genocide, he will be personally liable.
In addition, where genocide is carried out, the perpetrators must know that (1) the state where they act is obligated to punish them; (2) any state to which they might escape is obli. gated to return them to the state where the acts were committed; 84 (3) and no state will consider genocide a political crime for the purpose of evading extradition.
Thus, the Convention approaches the issue of genocide from all directions. Officials cannot hide behind the act of state",95 states cannot escape responsibiliiy by pointing at pri. vatc individuals, and individuals cannot hide in their own or other states.
30. For instance, the concentration and cxtcmination canıp at Dachau was only 17 kilometers-about 10 miles-from. Munich.
31. See Nazi Conspiracy and Agression, Opinion and Judgment 55-56 (Office of U.S. Chich of Counsel for Prosecution of Axis Criminality 1947).
32. For a concise summary in English, sce Lord Russell of Liverpool, The Record, The Trial of Adolf Eichmann for his Crimes Against the Jeu'ish People and against Humanity, 304-305. For a discussion of the background of the defense of superior orders, see id. 346-351 (1963).
33. For a view that the Nürnberg defense is not entirely climinated, sce statement of Nehemiah Robinson in Senate Hearings (1950) 487, 501.
34. Subject, of course, to local laws and treatics regarding extradition, 35. Cf. Underhill v. Hernandez, 168 U.S. 250 (1897).
IV. THE GENOCIDE CONVENTION IS IN ALL RE
SPECTS CONSISTENT WITH THE CONSTI.
OF THE UNITED STATES
A. The General Objections to the Genocide Convention
Made in 1949-50 Are Wholly Obsolete Today The opposition to the Genocide treaty at the Senate hearings twenty years ago centered around three main points. 36 First, a general opposition to the "new concept" of government action by treaties. During the next two decades, the United States has entered into some 4,000 international agreements, without any noticeable diminution of its sovereign independence, nor any noticeable debasement of its standards to an international average. That treaties are the modern means of developing international law, just as statutes are the modern means of developing state and federal law, has been noted earlier, and hardly requires demonstration. If some felt nervous or cautious in 1949 about stepping on the new ground of multilateral treaties, including treaties affecting individuals, that fear is no longer justificd. On thc contrary, the only concern a United States citizen should have is that his country not be left out as the documents and issues of the new international law are drafted, debated, interpreted and applied. 37
Second, the opposition expressed the fcar that by treaties in general, and by the Genocide Convention in particular, Article 2(7) of the United Nations Charter, dealing with matters “essentially within the domestic jurisdiction of states" was being undercut. In the words of the ABA Special Committee, 88 "Shall we be governed in internal affairs by treaty law or by laws
36. Sec Senate Hearings (1950) 151-230.
37. This point, in the context of the growth of international law in the post-war period, is developed by Bernard G. Segal, President of the ABA, in a recent address to the World Peace Through Law Conference, Bangkok, Thailand, September 1969.
38. 74 A.B.A. Rep. 320 (1949), Senate Hearings (1950) 160.