Question 6. What amendments, reservations, declarations, or understandings should be attached to the U.S. instrument

ratifying the Genocide Convention?

Answer. After a lengthy and extensive review, the Reagan Administration has decided not to recommend any changes in the three understandings and the one declaration proposed by the Senate Foreign Relations Committee in 1976. In its report of September 24, 1984, the Senate Foreign Relations Committee has agreed. The three understandings and the declaration are:

(1) That the United States Government understands and
construes the words "intent to destroy, in whole or in
part, a national, ethnical, racial, or religious group
as such" appearing in Article II, to mean the intent to
destroy a national, ethnical, racial, or religious group
by the acts specified in Article II in such manner
affect a substantial part of the group concerned.

as to

(2) That 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.

(3) That the United States Government understands and
construes Article VI of the Convention in accordance
with the agreed language of the Report of the Legal
Committee of the United Nations General Assembly that
nothing in Article VI shall affect the right of any
State to bring to trial before its own tribunals any of
its nationals for acts committed outside the State.

(4) That the United States Government declares that it
will not deposit its instrument of ratification until
after the implementing legislation referred to in
Article V has been enacted.

In my view these understandings and declaration should be more than sufficient to resolve any possible problems concerning ambiguities contained in the Genocide Convention. For domestic criminal law purposes the implementing legislation should be drafted with a view towards insuring full protection of the rights of an accused while fulfilling the obligation of the United States under the Convention to take steps to prevent and punish the crime of genocide.

In closing, Mr. Chairman, I would like to express my hope that U.S. ratification of the Convention will be only the first

genocidal acts. As others have pointed out, the Convention's value, up to this point, has been purely symbolic. It has not been used as a basis for the prosecution of persons accused of genocide. Nor has it stimulated suits before the International Court of Justice or charges before the political organs of the United Nations that a particular state party--and there are several possible candidates--bears international responsibility for genocide. The time has come to go beyond merely symbolic acts and to take effective steps against genocide. Only when this stage has been reached will the promise that the United States and its allies made at Nuremberg to combat crimes against humanity be fulfilled.

RESPONSES BY JOHN F. MURPHY TO WRITTEN QUESTIONS FROM SENATOR ORRIN G. HATCH

Question No. 1. Can a Treaty Affect on Nullify the Provisions of the States Constitution?

Answer. Under Article VI of the U.S. Constitution, the so-called supremacy clause, a treaty that has come into effect in the United States clearly prevails over any conflicting state law, including state constitutions. This is clear from the terms of the first paragraph of Article VI, which provide; "This Constitution, and the Law of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Question No. 2. Can a Treaty Affect or Nullify a State Statute?

Answer. The answer to this question is the same as that given to question No. 1. Question No. 3. Can a Treaty Affect or Nullify a Prior Judicial Decision of a State Supreme Court?

Answer. The answer to this question is the same as that given to question No. 2. Question No. 4. Can a Treaty Affect or Nullify Existing Federal Legislation on the Same Subject?

Answer. The United States Supreme Court has explicitly held, for example, in Whitney v. Robertson, 124 U.S. 190 (1888), that, under Article VI of the U.S. Constitution, treaties and federal legislation have the same status, and thus, in case of conflict, the so-called last-in-time rule prevails. That is, whichever has come into force the latest in time prevails in case of conflict. Accordingly, if a treaty is ratified and comes into force under United States law at a time subsequent to enactment of federal legislation, then in case of conflict, the treaty would prevail. Conversely, if federal legislation is adopted subsequent to the time of a treaty coming into force, then in case of conflict, the federal legislation would prevail. It should be noted, however, that this should not be a problem with respect to the Genocide Convention because it is generally agreed that the Convention would not be ratified by the United States until such time as implementing legislation has been adopted. Under these circumstances, there would be no possible conflict between the Convention and federal legislation.

Question No. 5. Can a Treaty Increase the Powers of the Federal Government at the Expense of the States?

Answer. No. Ratification of a treaty does not increase the powers of the Federal Government. The powers of the Federal Government regarding ratification of treaties are clearly spelled out in the United States Constitution. Ratification of a treaty is merely an exercise of these powers; it in no way increases Federal powers.

Question No. 6. Is a Treaty or Other International Agreement Which Conflicts

Answer. Yes. The United States Supreme Court has explicitly so held in Reid v. Covert, 354 U.S. 1, 17 (1957). Moreover, as indicated in the hearings before the Senate Judiciary Subcommittee on the Constitution, there is no respectable opinion holding otherwise.

Question No. 7. Is the Power to Make International Agreements Limited to Particular Subjects?

Answer. In Geofrey v. Riggs, 133 U.S. 258, 267 (1890), the Supreme Court held that, "the treaty power of the United States extends to all proper subjects of negotiation between the government and the governments of other nations. . ." It has generally been understood that there are some subjects that would not be appropriate for negotiation between the United States and other nations, although there has never been any agreement as to what these subjects might be.

In any event, genocide clearly is a proper subject for a treaty negotiation. At the Nuremberg trials, the United States and the allied powers, in accordance with international agreement, prosecuted and punished leading Nazi officials for the crime against humanity-the forerunner of the crime of genocide. Moreover, it is generally understood that genocide is a heinous crime against the vital interests of the entire world community. There can be no reasonable doubt that international cooperation is vitally needed to combat this scourge of humanity.

Question No. 8. The Genocide Convention makes any Official or Individual Punishable for "Direct and Public Incitment to Commit Genocide." Does this mean that if a member of Congress justifies the action of Jews killing Arabs in the Middle East that he can be prosecuted for genocide? What about the constitutional guarantee of freedom of speech? What about freedom of the press?

Answer. As discussed at substantial length during the hearings, the language, "direct and public incitment to commit genocide," is taken from the language of the Supreme Court's decision in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), and was inserted in the Genocide Convention at the insistence of the United States delegation in order to avoid any problems of freedom of speech or freedom of the press. The distinction that this language makes is between advocacy of genocide, which would not be covered by the Convention and would be protected by the First Amendment's guarantees of freedom of speech and of the press, and direct incitment to the imminent crime of genocide. The court in Brandenburg indicated that direct incitment to crime would not have constitutional protection, and there would seem to be no policy reason for such protection. A member of Congress justifying the action of Jews killing Arabs in the Middle East would not constitute even the advocacy of genocide. Even if it could be construed as advocacy of genocide, it would not fall within the coverage of the Genocide Convention.

Question No. 9. Could the Genocide Convention Lead to the Creation of an International Penal Court for Trials of American Citizens for Genocide Without the Constitutional Safeguards and Legal Rights Accorded Persons Charged with Domestic Crime?

Answer. The Genocide Convention does envisage, in Article VI, the possible creation of an international penal court for the trial of persons accused of genocide. However, no such international penal tribunal has been established; nor is there any significant support among nation states at this time for creation of such a tribunal. In the unlikely event that such a tribunal were to be established, no American citizen could be submitted to it for trial unless the United States expressiy agreed to the court's jurisdiction. Whether the United States should agree to the jurisdiction of such a court is a complex issue which would be taken up if such a tribunal were to be established.

Question No. 10. Would an American Charged with Commission of Genocide in the United States, be sent out of the Country for Trial before an International Penal Tribunal, if such a Court were Established, and its Jurisdiction accepted by the United States Under the Genocide Convention, in light of the Sixth Amendment to the U.S. Constitutional which Gives to Every Person Accused the Right to a Speedy and Public Trial by an Impartial Jury of the State and District wherein the Crime Shall have been Committed?

Answer. In large part my answer to question No. 9 will serve as an answer to this question as well. In addition, I should emphasize that United States acceptance of the jurisdiction of an international penal tribunal would not take place under the Genocide Convention; rather, it is an issue separate and distinct from United States' ratification of the Genocide Convention. Ratification of the Genocide Convention would not commit the United States to acceptance of the jurisdiction of an international penal tribunal were one to be created.

Question No. 11. Article IX of the Genocide Convention Provides that Disputes Between Parties to the Convention Relating to the "Interpretation, Application, or

Fulfillment" of the Convention "Shall be Submitted to the International Court of Justice at the Request of any of the Parties to the Dispute."

Does Article IX of the Genocide Convention make the International Court of Justice, instead of the Supreme Court, the Court of Final Appeal?

Answer. No. There is nothing revolutionary about Article IX of the Genocide Convention. Similar clauses are found in at least 40 multilateral conventions to which the United States is already a party. Under these clauses, the international court of justice does not serve as an appeal tribunal from a decision of the United States Supreme Court. Rather, the World Court is simply a dispute mechanism for the settlement of disputes between states parties to the Convention relating to the interpretation, application, or fulfillment of the Genocide Convention, a function entirely appropriate for it.

Question No. 12. Does Article IX Override Article III, Section 1, of the U.S. Constitution Which States, "The Judicial Power of the United States Shall be Vested in One Supreme Court, and in Such Inferior Courts as the Congress may from Time to Time Ordain and Establish"; and Article III Section 2, which States, "The Judicial Power Shall Extend to all Cases, in Law and Equity, Arising Under the Constitution, the Laws of the United States, and Treaties made, or which shall be under their Authority * * *"?

Answer. No. Although, under these provisions, the U.S. Judiciary has the authority to consider disputes relating to the interpretation or application of treaties to which the U.S. is a party, this does not preclude such disputes coming before the International Court of Justice, in situations where the dispute is between the United States Government and another state party to the treaty. This has been understood ever since the creation of the International Court of Justice and is the basis for U.S. acceptance of the compulsory jurisdiction of the International Court of Justice as well as the U.S. acceptance of compromissory clauses in 40 multilateral treaties mentioned earlier.

Question No. 13. What will the United States gain by Signing the Convention? Answer. The United States will gain substantially by becoming a party to the Genocide Convention. First, by ratification, it will reaffirm its stance taken at the Nuremberg trials that genocide is a crime against humanity that the world community needs to combat and suppress. Nonratification by the United States has proven to be an embarrassment to the conduct of U.S. foreign policy, which the Soviet Union, among other adversaries of the United States, has used to good effect. Second, by ratification of the Genocide Convention, the United States will be able to utilize its terms to challenge those states parties that commit genocide or permit genocide to be committed within their territory. In addition, it would be especially embarrassing to the conduct of United States foreign policy for the Genocide Convention to be rejected now when the Reagan Administration has strongly supported its ratification and our friends and allies expect the United States to become a part to the Convention.

Question 14. What will the United States Lose by not Signing the Convention? Answer. By not ratifying the Genocide Convention, the United States would lose the benefits, described in my answer to question 14, it could gain by ratification. Also, nonratification would continue as an embarrassment and hinderance to U.S. foreign policy.

Question 15. Why is it Undesirable to Federalize Criminal Law?

Answer. Ratification of the Genocide Convention and the adoption of implementing legislation would not federalize criminal law. Genocide is not currently defined as a crime under either federal or state law. Ratification of the Convention and the passage of implementing legislation would, to be sure, make the commission of genocide a federal crime. However, as discussed during the hearings, the implementing legislation would not preempt any state law that would establish the crime of genocide. Rather, there would be concurrent federal and state jurisdiction over the crime. This is the approach that has already been taken with respect to international terrorism. For example, implementing legislation for the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, and for the International Convention Against the Taking of Hostages, specifically disavows any intention to preempt state jurisdiction over these crimes.

Question 16. What Exactly is the Legal Status of the State Department's Three Understandings and One Declaration?

Answer. The State Department's proposed three understandings and one declaration have no legal status until such time as they are incorporated as part of the Untied States instrument of ratification. At that time the three understandings would constitute the United States interpretation of specific provisions of the Geno

cide Convention. If another state party disagreed with these interpretations, there would be a dispute between the United States and such a state party that could be settled either through negotiations or perhaps referral of the dispute to the International Court of Justice. However, no objection to these understandings is expected. As for the declaration, this would serve as notice to other states parties to the Genocide Convention that the United States would not become a party to the Convention until such time as implementing legislation has been adopted by Congress. Question 17. What is the Significance of the ICJ Rulings on Reservations? Answer. The Advisory Opinion of the International Court of Justice on Reservations to the Convention on Genocide, [1951] I.C.J. 15, states that, in the absence of an express reservation clause in multilateral treaty, reservations are permissible unless they are contrary to the object and purpose of the treaty. The three understanding posed by the State Department would, of course, pose no such problem. However, if the United States were to ratify the Convention with the kind of reservations proposed by Professor Friedlander during his testimony before the Subcommittee, the International Court of Justice would likely find that such reservations were incompatible with the object and purpose of the Convention and, in effect, constituted a nullification of the United States ratification.

Question 18. What is the Significance of the ICJ's View of the Universal Application of the Convention?

Answer. In its Advisory Opinion on Reservations to the Convention on Genocide, [1951] I.C.J. 15, the International Court of Justice commented on "The clearly universal character of the United Nations under whose auspices the Convention was concluded, and the very wide degree of participation envisaged by Article XI of the Convention." The significance of this statement is that it supports the proposition, supported also by the Restatement of the Foreign Relations Law of the United States (American Law Institute, 1982) and eminent jurists, that it is a violation of customary international law if a state practices or encourages genocide of fails to make genocide a crime or to punish persons guilty of it. This means that the United States is already bound under customary international law by the substantive obligations contained in the Genocide Convention. However, ratification of the Genocide Convention would enable the United States to take more effective effort to combat and suppress the crime of genocide.

Question 19. Could an International Genocide Tribunal be Created by Executive Agreement?

Answer. The issue of the dividing line between those subjects that can be covered by an international agreement entered into by the President under his sole constitutional authority and those subjects that can only be covered by a treaty has been a subject of hot dispute. See, for example, Murphy, "Treaties and International Agreements Other Than Treaties: Constitutional Allocation of Power and Responsibility Among the President, the House of Representatives and the Senate," Kansas Law Review, vol. 23, pp. 221-48 (1975), reprinted in Appendix L. Commission on the Organization of the Government for the Conduct of Foreign Policy, vol. 5 pp. 99-115 (1975). The London Charter, which established the Nuremberg Tribunal, was an executive agreement. However, regardless of whether it might be constitutionally permissible to establish an international genocide tribunal or an international penal tribunal by executive agreement, today the executive branch and Congress concur that such a tribunal should be established, if at all, only by a treaty.

I hope that these responses to the questions will prove helpful. If you have any questions regarding my answers, please feel free to call on me. Thank you for your consideration.

RESPONSES BY JOHN F. MURPHY TO WRITTEN QUESTIONS FROM Senator CHARLES E. GRASSLEY

Question No. 1. Could an individual be prosecuted for the crime of genocide under the Treaty, before an international tribunal, when his crime consisted of a single act against a single individual?

Answer. No.

Question No. 2. Does the absence of "political" group persecutions in the genocide definition, mean that designation of an individual or ethnic group as an "enemy of the state," and subsequent persecutions of that group, would escape international prosecution for the crime of genocide under the Treaty?