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sion in Reid v. Covert in 1957. The quotation one sometimes hears from John Foster Dulles in the famous Louisville, KY speech that the treaty will override the Constitution, those are simply no longer plausible views. It is absolutely not the constitutional law of the United States. I think that kind of thing gave rise to some concern, but has not been definitively resolved.
There was also a concern about the power of certain treaties to give greater authority in the Federal Government particularly in the human rights area, at a time when that was far more sensitive in our history in terms of the civil rights debate than it is today. Now we take for granted a strong network of civil rights laws-the strongest in the world-in the United States.
One thing we do know in that debate about this Convention is that it is completely not self-executing. It will have no effect whatever in the courts without the implementing legislation that you as a member of this committee and the Congress as a whole will be able to shape. So I think that really is not as serious an issue as many felt it was at the time that issue was initially raised.
With respect to the political crimes exception on extradition, that comes from article VII of the Convention. It simply says that genocide and other acts enumerated in article III shall not be considered political crimes for purposes of extradition. What that means is one is obligated to try in their own domestic courts if it happens to be one of their own nationals, or to extradite and that the extradition will not be held up by your making a claim that this is political. That is something the United States has always strongly favored. There has never been any discussion of a possible reservation of that. It would be grotesque to assume that somehow we would not extradite persons guilty of the crime of genocide, let's say, that took place in another country by a foreign national, that country requests them back for trial and the United States says no, we won't extradite because it is political.
I might say under every single one of our extradition treaties, the United States will not routinely extradite until it decides itself this is not a frivolous political charge. Not that you have a defense for genocide because you claim the act was political, but we will look to see whether the charge that is brought is politically motivated and if it is politically motivated and frivolous, there will be no extradition under U.S. extradition treaties, so I think there is very important protection under that clause.
Mr. DE SEIFE. Senator Grassley, in response to your question, the definition of the Genocide Convention which provides that certain people who belong to certain groups, namely, ethnic, religious and a couple of others, excludes political groups and, in my opinion, should also have included economic groups because of the words “as such" at the end of the Genocide Convention, what this means is that you cannot persecute a Jew because he is a Jew, or a Jew “as such," a member of the Jewish race “as such,” but it is fine to kill a Jew who is a member of X, Y, Z freedom party because he is an enemy of the regime.
Senator Hatch. Or enemy of the state.
Mr. DE SEIFE. Or enemy of the state. This is very important. If you talk about leadership, that is what the United States should have done-stuck by its gun-because a political group is very im
portant. It is not just political crime. Insofar as political crime is concerned, I would like to point out that in American criminal law there is no such thing as political murder. Murder is murder. Political as a motivation of murder is not a defense. Therefore, if another country comes to us under our current extradition treaties and asks us to extradite a person for murder, no matter whether it is political or not, if it is murder within our understanding, we extradite.
I testified in a case, a couple of years ago, in Virginia on the extradition treaty with France. There is no doubt that if one is guilty of murder under our law in France-a country which permits the defense of political crime-if the French came to us and asked us to extradite someone guilty of political murder, as far as we are concerned, we would extradite. So much for the extradition issue.
Again, since we do it any way, who needs the treaty? The treaty, Senator Grassley, is meaningless. It is worthless. It does not add one thing to the situation we have today.
I would like to point out one more thing, if I may, in response to Professor Moore about things being clear as to the law. We, as lawyers, know that nothing is clear as to the law, and there is no such thing as saying that the
Genocide Convention is clearly non-selfexecuting or executory. The Supreme Court years ago had problems finding one treaty self-executing then executory. The California Supreme Court found article 55, I believe, of the United National Charter, to be not self-executing after the lower court found that it was self-executing. There are legitimate debates about it. There is nothing clear. I wish it were.
Senator HATCH. Professor Murphy and Professor Friedlander, we would like to hear from you, too.
Mr. MURPHY. I would like to address Senator Grassley's primary concern. Your concern is that the United States might be subject to certain charges or that there might be discrimination under this convention against the United States. I think it is clear that the obligations on the United States and the obligations on the Soviet Union would be precisely the same, except for article IX regarding the International Court of Justice, because the Soviet Union has made a reservation to the courts' jurisdiction. As Professor Moore pointed out, this reservation brings into question their good-faith ratification of the Convention.
While it is unfortunate that the Genocide Convention does not cover genocide based on the political views of a target group, it is important to recognize that it does cover genocide which has been historically and is today important, that is, genocide against national, ethnic, racial, or religious groups, I think it would be unfortunate not to ratify the Convention, because, if we had our druthers, we would have a better Convention.
Thank you, Mr. Chairman.
Mr. FRIEDLANDER. Senator Grassley, my concern under article VII is that political opponents of an incumbent regime may or could under the Genocide Convention be accused of acts of genocide. I would suggest a reservation that political opponents of an incumbent regime be exempted from the charge of genocide in that kind of situation. I think the definitions and descriptions of genocide and the related activities are so vague and overbroad, they
cover almost any kind of crime in almost any kind of political dissent. That is how I understood your question, and that is part of my concern.
Senator GRASSLEY. My last point, I assume, and understand that I am not a lawyer, but I assume, in the case of the 90 nations who have signed this, that as far as those nations are concerned, it is part of their legal system and they are bound by it. To that extent, has there ever been any action brought against any individual or any country under the Genocide Convention in the 30 years that it has existed?
Mr. MURPHY. Not that I know of.
Senator GRASSLEY. If it is the great document it ought to be and maybe I should be asking you this, if it is the great document that it is, what difference does it make if the United States ratifies it or not? We have agreed to it, but we have not ratified it.
If in 30 years 90 nations have signed it and it has not been used at all, there are just as many nations that are signatories to it that abide by the rule of law as we do, why wouldn't a lot of western nations generally use it?
Professor MOORE. Senator, I think the answer to that question is that we are not able, as we in this room would like to be, to completely control genocide and eliminate it from the face of the Earth. I have no doubt that all of us in this hearing room would do that if it were within our power. The United States can only take those actions that are within its power to seek to achieve that goal. One of those actions that is in our power—that creates no constitutional or legal problems for the United States and that is extremely important morally and important to end a series of disinformation campaigns against our country's record in human rights-is to go forward with ratification of this convention.
I have no illusion in making that recommendation that the U.S. ratification will end genocide. I do believe very strongly as an American who takes great pride in my country and the human rights record of my country that this is an action that is in the right direction and will make at the margin a difference. We must continue to increase the pressure on grotesque totalitarian regimes.
I also think frankly that we should look carefully at the past record of not bringing actions under this convention. I personally would recommend that the United States, if it accedes to this convention, bring an action against the Sandinista leadership in the International Court of Justice for genocide against the Miskito Indians, and I believe the facts support that.
Senator HATCH. Let me interrupt a moment. You mentioned Kampuchea. Why have not any of these 90 countries come out against the atrocities that occurred there?
Professor MOORE. That is a very good point, and I would argue I think there should have been a case filed in the International Court of Justice against the Khmer Rouge.
Senator HATCH. Professor de Seife you indicated that the convention is going to be used solely against us. It will not
make any difference to the Soviet Union, the Khmer Rouge, the East bloc countries, or to any number of other atrocity-commiting nations. They will just ignore it. Obviously, what I am worried about more than anything else is having to fight battles such as I did in 1983 against an Arab resolution brought up before the International Labor Organization for the sole purpose of embarrassing Israel. I am concerned that Israel will be constantly attacked and nothing will be done about atrocities committed by other Communist nations.
Professor MOORE. Israel was one of the first nations to ratify the Genocide Convention. I am not aware that any case of genocide has ever been brought against Israel.
Senator Hatch. I understand they are very concerned today. I see it being a constant propaganda tool against Israel, against the United States, against everybody who believes in civil rights, human rights, and everybody who is against genocide while the others get away scot-free.
Professor MOORE. I happen to agree with you on the disinformation and the campaign against democracies. I agree with that.
Senator HATCH. Some people feel Israel had every right to go into Lebanon, but I suspect the minute Israel again protects its peripheral borders, it will have this Convention raised against it in the world court. Syria on the other hand, can do anything it wants to do, Iraq can do anything it wants to do because they don't care what happens in the world.
Professor MOORE. One thing I would point out, quite apart from our speculations or judgments as to what might happen in the future
Senator HATCH. I guarantee that the next time Israel moves into Lebanon or tries to protect itself, it will be maligned in the world court.
Professor MOORE. As I noted, Mr. Chairman I am not aware that a single case charging genocide against Israel ever has been brought before the world court. One thing that has been happening with some regularity is that the Soviet Union and those leading this disinformation campaign against the democracies have been using the U.S. nonratification of this treaty to deflect our criticism of their human rights.
Senator HATCH. Your point is well-taken that if we don't ratify, we have a very difficult time utilizing this Convention. On the other hand, if we do ratify then everybody can utilize it against us, our allies, and Israel. I forsee the Convention being used to constantly berate Israel and ourselves.
Professor MOORE. I tend to agree with Ambassador Kirkpatrick's approach that the answer is for the democracies to honestly take on the Soviet disinformation schemes and those of the other totalitarian regimes and tell the truth about their behavior.
Senator HATCH. I agree, but we are the only ones that get slapped around.
Professor MOORE. I don't think it is true, Mr. Chairman. If that were the case, I would be very concerned about it.
Senator HATCH. You are saying if that would be the case, you would probably be against ratification of this treaty yourself, but you don't believe that is the case.
Professor MOORE. Frankly, Mr. Chairman, I think it is just the totalitarian states that have the fear of the Genocide Convention. The democracies do not commit genocide and are not going to commit genocide. We do not need to fear the Genocide Convention. Senator HATCH. Would Hitler have abided by the treaty? The Russians don't care. The PLO does not seem to care. What do they care if you go and make some propaganda points in the world court? It does not mean anything to them. It won't stop them.
Professor MOORE. I think the question is how we continue to add on additional policies to try to stop the behavior, Mr. Chairman. I think this is an important additional policy to try to get at that genocidal behavior. The United States does not have any constitutional or legal problems in doing this. I see no problem in doing this. Why should we, as you pointed out in terms for 30 years, not do everything in our power to fight the totalitarian countries engaged in this type of activity? Why not go after them more seriously. That is what I think our country should do.
Senator HATCH. Let me turn to Dr. Murphy.
John F. Murphy is currently a professor of law at Villanova Law School. Prior to going into teaching, he spent a year on a fellowship in India, practiced law in New York City and Washington, DC, and served as an attorney in the legal advisor's office, Department of State. He is the author of "The United Nations and the Control of International Violence" (1983) and coeditor-with Alona E. Evans-and contributor to "Legal Aspects of International Terrorism" (1978).
Professor Murphy, let's take your testimony at this time, and then we will turn to Professor Friedlander.
STATEMENT OF JOHN F. MURPHY, PROFESSOR OF LAW,
VILLANOVA UNIVERSITY Mr. MURPHY. I did not mean to cut off the interesting discussion you were having with Professor Moore and Professor de Seife. In fact, I would like to return to it if I might.
You have my written statement that responds to the six questions you have raised.
Senator HATCH. Your full statement will also be placed in the record.
Mr. MURPHY. I would like to address this question of possible dangers for the United States in ratifying this Convention. Would it put us at a disadvantage in dealing with irresponsible charges of genocide? Some persons have expressed the concern that ratification of this convention would put the United States at a disadvantage in international forums, subject it to irresponsible charges of genocide because of its ratification of the Genocide Convention.
I think this is simply incorrect. It is important to keep in mind when addressing this issue the possible forums in which charges against the United States might be raised. It is highly unlikely that such charges would be brought against the United States before the International Court of Justice, because the Court would interpret and apply this Convention in a responsible way.
Conversely, as Professor Moore has indicated, we might want to consider bringing charges against Nicaragua and Kampuchea, countries that may well be violating the Genocide Convention.
There is also the fact of irresponsible charges in the United Nations itself and in a specialized agency such as the International Labor Organization.