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Question No. 3. If this is true, could Hitler have designated Jews as enemies of the state, and then systematically pursued their "extermination,” unfettered by any provision of the Genocide Convention, if it was then in effect?
Answer. No, see my answer to Question 2.
Question No. 4. Would the Raj of India, be permitted to execute all Sikhs as "enemies of the state” following the assassination of Indira Ghandi, rather than as an ethnic or religious group?
Question No. 5. Was it the east-block, or communist nations, that objected to the inclusion of political” persecution in the Convention, as has been alleged?
Question No. 6. Why are the Convention's terms aimed at individuals, rather than governments, when it is difficult to imagine genocide being conducted against a whole segment of a population without the cooperation of the state?
Answer. Because the political climate at the time the Convention was being drafted-and the same would be true today-precluded the thrust of the Convention being directed at governments.
Question No. 7. Was it the Soviets that objected to the language "with the complicity of government" to the genocide definition?
Question No. 8. Would ratification of the Treaty supercede all previous treaties and acts of Congress that are inconsistent with its terms, including bilateral extradition treaties with other nations?
Answer. As explained more fully in my testimony and in my letter, ratification of the Treaty would supercede any previous treaties or acts of Congress that would be in conflict with its terms. However, this is not a legitimate concern, because ratification of the Genocide Convention would be consistent with all current U.S. Treaties and Acts of Congress.
Question No. 9. Would any person charged with genocide be tried before an international tribunal, even if they are tried by their own nation for the same or an underlying act?
Question No. 10. If this is true, would that not offend the Constitution's provisions against "double jeopardy?”. Answer. See my answer to Question 9.
Question No. 11. Would a person who commits murder of a person or group of persons because of a racial or religious hatred, in one of our states, be tried for genocide in a federal court rather than murder or mass murder in the state in which the violence occurred?
Answer. If an individual committed an act that constituted genocide under federal law, he could be tried for genocide in a federal court; at the same time, he might be tried for murder or mass murder in the state in which the violence occurred. Federal and state courts, in such instance, would have concurrent jurisdiction over such an individual.
Question No. 12. Would a person tried in United States courts for the act of geno cide, be accorded the constitutional and legal protections that an accused defendant enjoys for other crimes under U.S. law?
Question No. 13. Would a person accused of the crime of genocide before an international tribunal be accorded the protections an accused person has in the United States, even if he is a U.S. citizen and the crime or crimes occurred within U.S. jurisdiction?
Answer. No such international criminal tribunal has been established; the procedural protections a United States citizen or others might enjoy before such a tribunal would have to be established. However, the possible creation of an international criminal court in the future which as explained more fully in my testimony and in my letter is an unlikely event-is simply irrelevant to the issue whether the Geno cide Convention should be ratified by the United States.
Question No. 14. Would a congressionally passed statute expanding the rights of the accused, or an evidenciary ruling of a judge that expands those rights, in a prosecution of an individual in U.S. courts for the act of genocide, subject the legislators or judges to prosecution as well?
Question No. 15. Would American military personnel, serving in time of war, be subject to punishment for the crime of genocide for acts that involve the taking of life of enemy troops, or the forced relocation of civilian populations in a "war zone?"
Question No. 16. Would the Treaty be self-executing, or would legislation be needed to enforce the Genocide Convention as it applies to the United States?
Answer. The Treaty would not be self-executing and legislation would be required to enforce it in the United States.
Question No. 17. Would ratification subject any citizen of the United States accused of this crime to international jurisdiction, without the possibility of the United States to object to the jurisdiction of the tribunal?
Question No. 18. Would the state of Israel, or any of its officials and citizens be subject to international prosecution under the Genocide Convention, upon the complaint of Yassir Arafat or the P.L.O., that its West Bank settlement policies constitute genocide against the Palestinian people?
Question No. 19. If so, would Prime Minister Peres, or other Israeli officials be subject to arrest while visiting the United States, and subsequent extradition, upon the complaint of the P.L.O.?
Answer. See my answer to Question 18.
Question No. 20. Could the actions of this government to reduce budgetary deficits by reducing entitlement or other social welfare programs that tend to disproportionately benefit ethnic or religious groups, constitute genocide?
Question No. 21. Given that the Nuremberg Declarations found that the promo tion of abortions among minority populations amounted to genocide, could not the location of abortion facilities in neighborhoods that are primarily made up of one race, constitute genocide?
Answer. No. The Nazi practices regarding abortions among minority populations, condemned at Nuremberg, are in no way similar to abortion facilities in U.S. neighborhoods.
Question No. 22. Do you believe that had this Treaty been in effect, and Germany a party to it in the 1930's, that Hitler would have been prevented from pursuing the elimination of the Jewish people, and the others that were persecuted?
Answer. Hitler violated a large number of international treaties during the 1930's. The problem was not the absence of international law, but the Western de mocracies' lack of will to stop Hitler at a time when he could have been stopped with a minimum of violence.
Question No. 23. Do you believe that Stalin would have been prevented from fostering the mass-starvation and executions of the Ukraine?
Answer. No, but the presence of a Genocide Convention-assuming the Soviet Union was a party to it-could have been used as one basis for focusing attention on Stalin's heinous crimes.
Question No. 24. Do you believe that the mass executions of the Cultural Revolution in the People's Republic of China could have been prevented by this Treaty?
Answer. The answer to this question is basically the same as my answer to Question 23.
Question No. 25. Why were not the mass executions of Kampuchea stopped by the Genocide Convention?
Answer. The Genocide Convention does not operate without states parties taking action. The problem did not lie in the terms of the Genocide Convention; rather the international community has simply lacked the will to stop the mass executions in Kampuchea.
Question No. 26. Why is the persecution of the Mesquito Indians in Nicaragua not the subject of a genocide prosecution right now?
Answer. No one has brought an action against Nicaragua to call it to account for its treatment of the Mesquito Indians. As pointed out on several occasions during the hearings, if the United States were a party to the Genocide Convention-without a disabling reservation to Article IX regarding the jurisdiction of the International Court of Justice-it would be in a position to bring such a claim against Nicaragua.
Question No. 27. Does the advocacy of religious or racial hatred, constitute an act of Genocide under the Treaty's “incitement” provision, and thereby violate the First Amendment's protection of "free speech” regardless of how offensive the speaker is?
Answer. No. This was pointed out on numerous occasions during the hearings, and it is also discussed in my letter of March 18, 1985.
Question No. 28. Does the Treaty permit the United States or other international tribunal, to cite the United States or any individual or government official, for geno cide, by failing to act to pass legislation implementing the Treaty?
Answer. No. Of course, if the United Nations were to fail to pass legislation imple menting the Treaty, it would have failed to carry out its obligations under the Treaty, but it would not by that failure have committed genocide. In any event, this cannot possibly pose any problem because it is agreed by all that the United States will not ratify the Genocide Convention until Congress has passed and the President has signed the necessary implementing legislation.
Question No. 29. What would constitute "causing mental harm" under the provisions of the Treaty?
Answer. As pointed out on several occasions during the hearings and on numerous other occasions, “causing mental harm” means “permanent impairment of mental faculties”--the kind of harm caused by the Nazis with their drug experiments on Jews during world War II.
Question No. 30. Would the failure of the United States to act to restrain the persecution of a people in another country, subject the President or the Secretary of State to prosecution for an act of genocide before an international tribunal? Answer. No. Senator HATCH. Thank you.
We will now turn to Dr. Friedlander, who is currently professor of law, Pettit College of Law, Ohio Northern University. He holds a B.A., 1955; M.A., 1957; and Ph.D. 1963, from Northwestern University, where he took all three degrees in the field of history. He received his juris doctorate degree from the De Paul University College of Law in Chicago, IL, where he specialized in criminal law, constitutional criminal procedure, and international law.
Dr. Friedlander is the author and editor of seven books and has authored over 80 articles. We are happy to have you with us. STATEMENT OF ROBERT A. FRIEDLANDER, PROFESSOR OF LAW,
PETTIT COLLEGE OF LAW, OHIO NORTHERN UNIVERSITY Mr. FRIEDLANDER. Thank you, Mr. Chairman. It is a privilege to be here with you. I have submitted for the record a prepared statement and Convention analysis. Therefore I will confine my summary remarks to the six questions we were supposed to discuss today.
By way of introduction, I submit that the Genocide Convention is wrong in its focus, confused in its substance, and unpredictable as to future application. Individuals cannot and do not commit geno cide. Only states or governments can perpetuate that barbaric activity when that activity is properly defined. The designation of genocide found in the Convention is vague and overbroad, arbitrary and capricious, and unreasonable in construction and composition. Genocide, as defined by the Convention, can apply to just about anyone, doing almost any act, posing almost any threat to virtually any type of victim. Article II provides the possibility that a single victim may suffice for a charge of genocide.
I will now attempt to answer, in short scope, each of the pertinent questions raised by you, Mr. Chairman, in your opening state ment.
Should the treaty-making power be used as the basis for the enactment of domestic legislation in the United States?
Definitely not. The framers of the American Constitution intended the supremacy clause, as it relates to the treaty-making power, to apply only in the context of foreign affairs and not as an alternative means of domestic legislation. The writings of commentators and publicists have sometimes created interpretations that do not exist and have expounded theories which cannot be derived from the language of the cases themselves. The use of dicta to bolster
further dicta, disguised as rules of law, is not new to constitutional jurisprudence, but nowhere is it more apparent that in case law relating to the treaty-making power and the supremacy clause of article VI. The barriers to the operation of the 10th amendment with respect to article VI have been built by dicta and shaped by implication, but they have not yet consigned that particular portion of the Bill of Rights to permanent oblivion. To quote Justice Hugo Black: "If the judges, in deciding whether laws are constitutional, are to be left only to the admonition of their own conscience, why was it that the Founders gave us a written Constitution at all?”
Would the Genocide Convention alter the balance of authority between the States and the Federal Government by making geno cide an international and Federal crime?
Yes, it would. The balance between Federal and State criminal law as it now exists, in the form of dual sovereignty, would be severely dislocated, and the traditional principle of concurrent jurisdiction would be seriously disrupted. The seeds of this approach can already be found in Judge Irving Kaufman's controversial opinion in the Figlartia v. Pena-Irala case of 1980. Kaufman's opinion has become a rallying point for those who would make the Universal Declaration of Human Rights, the Genocide Convention the two international covenants and the convention on the elimination of all forms of racial discrimination self-executing in American law. Figlartia creatively asserts that U.S. law is subject not only to the U.N. charter, but also to all relevant human rights instruments, including—of course—the Genocide Convention. At best, the Genocide Convention would exacerbate State-Federal jurisdictional conflict. At worst, it would definitely subordinate State criminal codes to Federal criminal law via articles II and III of the Convention.
Does the Convention violate specific amendments to the constitution?
Indeed. The Convention, in its present form, violates the first, fifth, and sixth amendments with respect to freedom of the press and of speech, due process, protection from self-incrimination, the right to confront one's accusers, the right to a public trial, the right to a trial by jury, and the right to an attorney, among others.
Article VI provides for the establishment of an international criminal tribunal on genocide with no presumption of innocence, reasonable doubt standard, or even a concern for fundamental fair
Does ratification of the Convention limit our national sovereignty?
Yes. The United States, by virtue of article VII, is forced to amend its historic position on political criminality, as contained in every U.S. bilateral extradition treaty. The United States may also be compelled by the Genocide Convention to subject visiting diplomats or dignitaries-for example, officials of Israel and Great Britain-to arrest and extradition for alleged crimes of genocide as claimed by other states parties and their political partisans. The International Court of Justice has already twice declared that the principles of the Genocide Convention are binding on all states, whether they have ratified the Convention or not. It should also be emphasized that the reservations made by the U.S. Government to
the International Court of Justice protocol at the time of accession in August 1946, including the Connally amendment, do not apply to article IX, under which one state can compel another to accept International Court of Justice jurisdiction. Both the State and Justice Departments have conceded that the 1946 reservations do not apply to the Genocide Convention.
Does the Convention mandate changes in the independence of the American legal system?
Without a doubt. The Congress, the executive branch, and the courts, including the Supreme Court, are not judgment proof and have no immunity under the wording of article IV. They all are subject to prosecution and punishment for acts and decisions made within the scope of their authority. Under article VIII punitive measures could be imposed against U.S. officials and American citi
by the U.N. General Assembly, where the United States has no veto and has been continually outvoted on most issues.
What amendments, reservations, declarations, or understandings should be attached to the Genocide Convention?
I strongly believe, for reasons already given, that the Genocide Convention does not merit Senate approval. If, however, ratification is inevitable, subject to certain limitations, then I do suggest a number of reservations. I say reservations, Mr. Chairman, rather than amendment, declaration, or understanding, because any amendment would require renegotiation of the Convention, while declarations and understandings have no legal consequences.
My own suggestions regarding reservations are as follows:
First, a reservation to article I in that the crimes of genocide as specified in the Convention do not apply to regular or irregular military conflicts as they are defined in customary international law.
Second, a reservation to articles II and III that the so-called criminality described therein must specifically relate to elements of Federal crimes proscribed by the U.S. Code.
Third, a reservation to articles IV, V, and VI that procedural safeguards contained in constitutional Bill of Rights guarantees, plus the presumption of innocence, are required in any U.S. trial and by any international genocide court as established by treaty or convention.
Fourth, a reservation to article IV specifically exempting judges from civil and criminal liability under the Convention when they are acting in their official capacity and within the scope of their judicial authority.
Fifth, a reservation to article VI that the establishment of any international penal tribunal requires a separate, non-self-executing treaty or convention.
Sixth, a reservation to article VII stipulating that extradition is not applicable when the acts described in article III represent political opposition to an incumbent regime.
Seventh, a reservation to article IX that the Connally amendment specifically applies to any matter involving the United States brought before the International Court of Justice at the request of another state party under the provisions of the Genocide Conven