passed by Congress with a constitutional basis?" Again the answer has already been given. Article 2(7) is in no way undercut by the Genocide Convention. Domestic matters are as out of bounds for the United Nations as ever. The only effect of the Genocide Convention is to say that the issues specified in Articles II and III cover not merely one country, but all countries. If the United States wants (1) to take a complete handsoff attitude if genocide should occur somewhere in the world; or (2) to foster, shield, or protect the commission of genocide within the nation's borders, then it should certainly not join the Convention. If neither of these attitudes is real, then the argument has no appeal whatever.

Third, the opposition, focusing on certain enigmatic language of Justice Holmes in Missouri v. Holland, considered that the Genocide Convention might be the opening wedge in a drive to exceed the legislative powers of the Congress vis-a-vis the states through use of the treaty power. Whatever theoretical merit there might have been with respect to this point, discussed for nearly ten years in the context of the proposed Bricker Amendment,40 it has no relevance to the Genocide Convention. No one could have any doubt about the right of the Congress to prohibit genocide. Quite apart from the treaty power, the Constitution expressly grants to the Congress the power "to define and punish Piracies and Felonies committed on the high seas and Offences against the Law of Nations." 41 And if anyone suspected that the Genocide Convention might be used to justify federal legislation in the field of civil rights, the events since 1949 have shown that the United States Constitution as currently understood is quite adequate to sustain any civi! rights legislation likely to be proposed and passed, and certainly far more ample to coverage than any authority possibly derived from the Genocide Convention.

39. 252 U.S. 416, 433-434 (1920).

40. There were several versions of the Amendment. For the principal one, see S.J. Res. 1 as amended and reported favorably by the Senate Judiciary Comm. S. Rep. No. 412, 83d Cong., 1st Sess. (1953).

41. U.S. Constitution Art. I, sec. 8, cl. 10.

It is conceivable that a claim could have been made that depriving a racial group-say Negroes or American Indians-of the right to vote or the right to enjoy public accommodations is comprehended within Article II (b) of the Genocide Convention related to "mental harm". But this thought is hardly more than conceivable: as we have seen, the whole thrust of the convention and its origin suggest quite different goals; moreover, Article II (b) like all of the definitions of the crime of genocide, is governed by the phrase "with intent to destroy", which would not seem to apply to even the most extreme segregationist measures which may be tolerated by statute law in the United States. 12 At all events the barring of school segregation, which was accomplished without any statute," the passage of the Civil Rights Acts of 1957 and 1964 45 and the Voting Rights Act of 1965 46 all sustained by the Supreme Court, show that blocking the Genocide Convention has given and will give no comfort to opponents of federal enforcement of rights of minorities, while ratification of the Convention will add no powers to those the Federal Government already possesses.

Unconnected to the state-federal relation in the United States, the objection was also made in 1949-50 that the Convention undertakes to define a crime for which there would be punishment under federal law, without concurrence by the House of Representatives. This is simply a misunderstanding, resulting from a confusion about what is and what is not a "self-executing" treaty. In fact, ratification of the Convention would obligate the United States internationally to pass the

42. There have been, of course, deliberate lynchings or murders with racist aims. But such acts have always been unlawful.

43. Brown v. Board of Education, 347 U.S. 483 (1954). See also Cooper v. Aaron, 358 U.S. 1 (1958), Griffin v. Prince Edward School Board, 377 U.S. 218 (1964).

44. 71 Stat. 637 (1957), 42 U.S.C. 1971 (1964), sustained in United States v. Mississippi, 380 U.S. 128 (1965).

45. 78 Stat. 243 (1964), 42 U.S.C. § 2000a-h, sustained in Heart Of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), and Katzenbach v. McClung, 379 U.S. 294 (1964).

46. 79 Stat. 437 (1965), 42 U.S.C. § 1973 (Supp. 1965), sustained in South Carolina v. Katzenbach, 383 U.S. 301 (1966).

necessary implementing legislation, making the crimes specified punishable under United States law. Failure by the Congress to enact the implementing legislation would leave the United States in breach of an international obligation, but in such eventuality no one could be tried in the United States for a crime not specified in the Criminal Code. It is certain that no one can be accused of or tried for the crime of genocide in the United States until legislation making genocide a crime has been adopted in accordance with our domestic procedure for passage of a law.

To give an idea of what implementing legislation for the Genocide Convention might look like, a draft has been prepared and appears at Appendix C." It may be noted that the draft follows the Convention closely, but not verbatim. Thus, for example, the words "aiding and abetting" have been substituted for the Convention's "complicity in", and a number of comparable small changes have been made. Needless to say, no international convention can adopt a form of words in every respect suitable for eighty or a hundred different legal systems. One of the objects of implementing legislation is to tailor a universal agreement to various local conditions. The draft in Appendix C, or some variation on that draft, could fully serve the twin purposes of adapting a general treaty to United States conditions and of preserving the principle that no one shall be punished by the United States for a crime, but upon conviction of an act prohibited by a law duly enacted by the Congress.“ Any prosecution in the United States would be subject to all the safeguards provided in the Constitution, including the substantive guarantees in the First Amendment and the procedural

47. While the Departments of State and Justice informally discussed implementing legislation for the Genocide Convention, no government draft has been published. The draft has been prepared for this Report, for illustration only, and has no official standing.

48. It seems no longer necessary to address the possible overlap between the new federal crime and a state crime, such as homicide. Such overlap is by now accepted without question, in areas as disparate as civil rights legislation, kidnapping, bank robbery, possession of narcotics, and as many more. For an early and authoritative statement on this point, see United States v. Arjona, 120 U.S. 479 (1887).

guarantees in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments.

B. The Specific Objections Raised to the Genocide
Convention Are Not Meritorious

In addition to the general objections to the Genocide Convention discussed above, a number of particular criticisms relating to the text of the Convention were made by opponents in 1949-50. These are not of a dimension sufficient, singly or together, to warrant non-ratification.

"As such"

Why, it was asked, did' Article II refer to the destruction of a national, ethnical, racial, or religious group as such? Does this not create an ambiguity? The answer is perhaps it does, but so would the phrase without these words. Conceivably, an edict to kill all restaurant owners might be a subterfuge to kill, say, all Chinese within a country. In such an event, the words "as such" would give a possible technical defense to the authors of the deed. But that possibility seems very remote. In the past, genocide has not usually been disguised. It has been part of a deliberate, public, and political or religious campaign. Rome set out to destroy the Carthaginians; Islam set out to destroy Christians; Hitler set out to destroy the Jews, as such. "In whole or in part”

What did the addition of the words "in whole or in part" signify for the crime of genocide? Did it mean, in the words of one opponent, "driving five Chinamen out of town"? 50 The answer, again, is quite simple, and indeed, appears in the drafting history of the Convention itself. The object of adding 49. See Senate Hearings (1950) 154-221.

50. See Senate Hearings (1950) 154, 199, 201, 203.

51. The amendment containing these words was proposed by Norway in the debates of the Sixth (Legal) Committee of the General Assembly in its debates on the draft prepared by the Economic and Social Council. U.N. Doc. E/794 (May 24, 1948). The debates appear at 3 U.N. GAOR 6th Comm. 61, 92-97, Oct. 7, Oct. 13, 1948.

the words "in part" was to preclude an argument that international destruction, say, of half or two thirds of the Jews of Rumania was not comprehended in the crime of genocide.

In the context of this Convention, there can be no doubt about the distinction between intent to destroy a national, ethnical or racial or religious group and intent to destroy some individuals belonging to that group. Nothing in the history of the United States since the early Indian wars quite adds up to genocide within the meaning of this convention. If any race riot, lynching, or comparable event ever grew to the scale approaching genocide as defined in the Convention, the international obligation would surely add nothing to the determination of our own state and federal authorities to bring the perpetrators to full justice.

"Mental harm"

The thrust of the objection to this phrase, apparently, was that the critics did not understand it. As more facts of tortures both in Asia and in Eastern Europe during World War II have come out, as we have come to know about brain-washing in North Korea of our own soldiers, and in Eastern Europe of various political and religious leaders including for instance Cardinal Mindszenty, the objection to including mental harm along with bodily harm would seem to disappear.

"The place of trial"

One criticism of the Convention arose out of the possibility that, under Article VI, a person accused of genocide could be tried by an international penal tribunal, possibly without trial by jury and other safeguards to which a United States citizen is entitled under the Constitution. Again, the answer is simple. No such tribunal has been established.52 If one were established, parties to the Genocide Convention would have the option whether to accept its jurisdiction or not. For the United

52. The last time the proposal was seriously discussed appears to have been in the Sixth (Legal) Committee of the General Assembly in 1957. 12 U.N. GAOR 6th Comm. 155 (Dec. 5, 1957).