I would suggest that U.S. ratification of this Convention, as has been the case with Israel, would have little effect on irresponsible political charges. Those charges have been brought and will continue to be brought by our adversaries in these basically political organs of the world community.

On the other hand, as Professor Moore suggested, U.S. ratification of the Genocide Convention might help us to respond to those charges and perhaps would enhance our ability to go on the counterattack in these political forums.

So, I do not see any dangers in terms of U.S. foreign policy, in ratifying the Genocide Convention. I see some benefits for example, more precision given to the definition of genocide. It could be utilized either in the world court or the political organs of the U.N. Let me turn very briefly to this question of what might the United States gain from ratification. Some of these points have already been covered. I would like to address the question of ratification being a PR exercise or a symbolic act. I would suggest that ratification would not be a public relations exercise, but an important step toward reaffirming general principles of law that we first supported in the London Charter that set up the Nuremberg trials. We should remember that leading Nazi officials were tried and convicted of crimes against humanity which were the forerunner of the genocide concept. Is important for the United States to reaffirm its commitment to combat that type of act, so the symbolic importance of ratification would be significant.

There is a distressing tendency for treaties to be ratified and then for no further action to be taken. One sees this in the area of antiterrorist treaties. These treaties have to be utilized if they are to be effective tools for combating international crime. This should be done in the case of genocide and in the case of our antiterrorism effort.

In the time remaining, Mr. Chairman, I would like to turn to what was going to be the first part of my statement and try to address another major concern that has been expressed in this constitutional area, and that is the question of the propriety of making genocide an international crime under U.S. law. It is important to recognize that in a sense calling genocide an international crime is a misnomer. It is true that at Nuremberg it was called a crime against humanity and identified as an international crime, by an international tribunal set up on a temporary ad hoc basis. But since that time no permanent international crime court has been established. Under the Genocide Convention states are required to define genocide under natoinal law and through implementing legislation to punish those acts of genocide that occur within their territory or to extradite to the territory of the place where the acts occurred in the event they apprehend an alleged perpetrator of genocide in their territory.

So the Genocide Convention sets up a framework for possible international cooperation in dealing with individuals who commit genocidal acts. It has not been utilized, as has been recognized here. Perhaps it should be.

Basically, the question addressed by the Genocide Convention can be broadly described as a problem of apprehending, prosecuting

genocidal act is committed in the territory of the country that apprehends the individual, that person would be tried under domestic law which, in accordance with the treaty, would include the crime of genocide; but the same act might also qualify as murder, assault and battery, or other domestic crimes.

As to the problem of extradition, the Convention could be a bit more precise than it is. It seems to require in article VII that extradition be back to the territory where the crime was committed or to an international criminal tribunal which has not been established. Literally read, article VII provides no option for the country which apprehends an alleged perpetrator of genocide to try him unless the crime was committed in its territory. It has been suggested that the United States should include an understanding in its instrument of ratification that would allow the United States to try its own nationals for the crime of genocide. I would support such an understanding.

Upon reflection, I think we ought to give some thought to the possibility of an understanding that there is nothing in article VII which would preclude the United States from trying any individual regardless of nationality, for genocide under its law. This would be in keeping with the idea that genocide is a crime against the world community, the same as piracy.

The antiterrorist conventions, such as the conventions against aircraft highjackings or sabatoge, provide for the extradite or prosecute approach to these crimes. That is, the state where the individual has been apprehended has its choice. It can either extradite that person back to where the crime was committed, or it can assert jurisdiction over that person on the ground the crime is subject to the jurisdiction of any state that apprehends the alleged offender. It would make sense to apply this approach to genocide, despite the literal language of article VII which might be interpreted to the contrary.

I see my time is up, Senator. I will finish on this point.

At this late date, there is nothing particularly revolutionary about the Genocide Convention. In the antiterrorism area, there are a number of laws on the books which provide for the prosecution and punishment of individuals who take hostages, individuals who attack diplomats, individuals who hijack airplanes. This prosecution is carried out in accordance with the terms of U.S. legislation. So, in a sense, the question of whether the Genocide Convention is or is not self-executing is beside the point. It would be executed by the passage of Federal legislation.

It is clear that the United States would not become a party to the Genocide Convention until such time as implementing legislation to provide the basis for the prosecution is in place. This is an important point. There is no question that Congress can constitutionally enact such legislation under its authority to define crimes against the law of nations.

[The prepared statement of Mr. Murphy and responses to written

PREPARED STATEMENT OF JOHN F. MURPHY

Mr. Chairman and members of the Subcommittee, I appreciate the opportunity to appear before you today to address some of the constitutional issues that have arisen with respect to the question whether the Senate should give its advice and consent to United States ratification of the Convention on the Prevention and Punishment of the Crime of Genocide ("Genocide Convention"). Since you have asked for my reactions to six specific questions, I will limit my testimony this morning to these questions. I would be pleased, however, to respond to any other questions you might have regarding either the constitutional or international law dimensions of the Genocide Convention.

Before I turn to the six specific questions you have asked,

As

I would like to say that I agree with the many eminent commentators who have stated that there are no constitutional impediments to United States ratification of the Convention. you know, the debate over the constitutionality of United States ratification has been waging since at least 1949, when President Truman submitted the Genocide Convention to the Senate for its advice and consent. In my opinion, and with all due respect to my colleagues who hold a contrary opinion, any possible doubt regarding the constitutionality of United States ratification should have been dispelled by now.

Let me turn now to the six questions.

Question 1. Should the treaty making power be used as the basis for the enactment of domestic legislation in the United

States?

Answer. The treaty making power is not being used as the basis for the enactment of domestic legislation in the United States. Rather, the enactment of domestic legislation is often necessary for the United States to fulfull its obligations under a treaty. Also, if a treaty is non-self-executing, the enactment

supreme law of the land under Article VI of the U.S.

Constitution.

Moreover, the Supreme Court has held that a treaty cannot itself enact domestic criminal law and that only Congress can enforce treaty obligations by penal sanctions.

United States v.

Hudson and Goodwin, 7 Cranch 32 (U.S. 1812);

United States v.

Coolidge, 1 Wheat 415 (U.S. 816); L. Henkin, Foreign Affairs and the Constitution 159 (1972). Article V of the Genocide Convention expressly requires the parties "to enact, in

accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention A similar obligation is found in other conventions establishing international crimes that the United States has ratified. Recent examples include the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (Article 3) and the International Convention Against the Taking of Hostages (Article 5).

Question 2. Would the Genocide Convention alter the balance of authority between states and the federal government by making genocide an international and federal crime?

Answer. No. It is generally agreed, as reflected in draft implementing legislation, that the states and the federal government would have concurrent jurisdiction over the crime of genocide. Also, Article I, section 8, clause 10, of the Constitution expressly authorizes Congress to define and punish offenses against the law of nations. As noted above, Congress has recently exercised this authority in passing implementing legislation for the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents and The International Convention Against the Taking of Hostages.

Question 3. Would the Genocide Convention violate specific

Answer. No.

The Convention itself recognizes, in Article

V, that states parties' obligation to enact implementing

legislation shall be carried out only "in accordance with their respective Constitutions." Moreover, the Supreme Court has ruled

that the Constitution is supreme over a treaty in any case of Reid v. Covert, 354 U.S. 1, 17, (1957).

conflict.

In any event the Convention nowhere violates specific amendments to the Constitution. Some have claimed that the Convention's ban in Article II on "causing serious

mental

harm" to a people, or its criminalizing in Article III of "incitement to commit genocide," violates the Constitution's First Amendment guarantee of freedom of expression. These contentions are not well founded. The drafting history of the Convention clearly shows, and it is generally agreed among states parties, that "mental harm" is to be construed to cover only physical injury to the brain, particularly through the forced use of mind-altering drugs, with the intention of destroying an ethnic, national, racial, or religious group. To lend a further measure of support to this interpretation, the Senate Foreign Relations Committee has proposed that the following understanding be attached to the United States instrument of ratification: "the United States government understands and construes the words 'mental harm' appearing in Article II (b) of this Convention to mean permanent impairment of mental faculties."

As to the "incitement" clause, the drafting history of the Convention indicates that this language was inserted at the insistence of the American delegation. An early draft of Article III would have prohibited all forms of public propaganda encouraging genocide a provision that would clearly violate the First Amendment to the Constitution. The present language avoids such problems. Although advocacy is constitutionally protected, no matter how reprehensible, incitement to a crime is not. In Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), the Supreme Court