Why the Genocide Treaty Trivializes the Horror of Genocide
(Archived document, may contain errors)
486 February 14, 1986 WHY THE GENOCIDE TREATY TRlVlALlZES THE
HORROR OF GENOCIDE INTRODUCTION A fierce fight is expected before
Majority Leader Robert Dol e (R-KS) brings The International
Convention on the Prevention and Punishment of the Crime of
Genocide to the Senate floor, soon after the current congressional
recess. the'lIGenocide Treaty" is a symbolic and overdue expression
of revulsion against this h einous crime and its practitioners to
its critics, the Genocide Treaty'is a seriously flawed document
which, if ratified, could undermine U.S. constitutional safeguards.
It also would not cover such contemporary atrocities as those
committed by the Khmer R ouge in Cambodia, the Soviet Union in
Afghanistan, and Mainland China in Tibet. Counsels columnist George
Will HOW, you ask, can anyone oppose a treaty opposing genocide?
Easily, if you start by reading it."1 To its American supporters
But Conservative cr i tics, led in the Senate by Steve Symms R-ID
Strom Thurmond (R-SC), and Orrin Hatch (R-UT maintain that the
document is a legal disaster and riddled with loopholes. Beyond
that, they fear that U.S. ratification would allow hostile nations
to use the Genoci d e Treaty against the U.S. f.or propaganda
purposes. Richard Lugar of Indiana and Jesse Helms of North
Carolina and attached to the treaty by the Senate Foreign Relacions
Committee in'May 1985 improved the treaty somewhat, but still
leaves the U.S. vulnera b le to unjustified and unwarranted
harassment A package of reservations crafted by Republican Senators
This in fact, is the painful lesson that the U.S. has learned from
its experience with the World Court. The U.S joined the Court in
1946, but only after t he Senate imposed 1 The Washington Post,
September 20, 1984, p. A19. 2 strict reservations regarding the
Court's jurisdiction over the U.S. Yet whenever the U.S. invokes
these reservations, as the Reagan Administration did in 1984
regarding Nicaragua's at t empt to drag the U.S. before the Court,
liberals accuse the U.S. of undermining the rule of law allegedly
symbolized by the World Court. Apparently forgotten is the fact
that the Senate allowed the U.S. to join the Court only if the
reservations were acce pted Instead, Washington immediately is
placed on the defensive when it does what it is entitled to
do-invoke the reservations.
The same thing is sure to happen with the Genocide Treaty.
While the Senate may feel that its reservations will protect the
U.S in reality the U.S. will pay a price every time it uses the
reservations to limit the Genocide Treaty's reach. Some experts
acknowledge that the treaty is seriously flawed but argue that it
is symbolically important for the U.S. to sign it. The contrary i s
true. If the U.S. signs the treaty, the U.S. will suffer repeated
symbolic damage every time it invokes the reservations punish those
who commit genocide document whose intrinsic impotence will make a
mockery of the civilized world's condemnatian of gen o cide. It
will be a document moreover, which will be used to harass and
assault those democratic nations which take seriously their
signatures on treaties and which must contend with unfettered
domestic public opinion It will be ignored by those nations wh i ch
scorn democracy and are in fact, those most likely to commit
genocide. To oppose the Genocide Treaty is not to support genocide.
To oppose the treaty is to reject a flawed document which
trivializes the horror of genocide The Genocide Treaty will not p
revent genocide nor will it Instead it will be an empty To truly
oppose genocide is to oppose the treaty.
SENATE RESERVATIONS The United Nations General Assembly adopted the
Genocide Treaty in 19
48. Since then, 96 nations have signed it. Because many Ame rican
experts have complained that the accord was too broad and clashed
with U.S. constitutional safeguards, the Senate Relations Committee
in 1976 recommended that a series of Ifunder These were designed to
tighten the language of some of the treaty's mo r e ambiguous
definitions and eliminate salient constitutional conflicts. The
Carter Administration embraced the treaty the following year. The
Senate Foreign Relations Committee held hearings on May 24 1977 but
took no further action C has refused, since 1 949, to ratify the
treaty. The Senate Foreign standingsii be attached to the treaty.
Former Secretary of State Alexander Haig, during his 1981
confirmation hearings, pledged to review the treaty. Late that
year, the Senate Foreign Relations Committee again held hearings.
On September 5, 1984, the Reagan Administration announced its
support of the Genocide Treaty. On October 10, 1984, Senator
Christopher Dodd, the Connecticut Democrat, introduced a resolution
urging Senate ratification It passed unanimously 3 Yet there were
serious reservations. Republican Senator Strom Thurmond of South
Carolina feared that the treaty would fuel an ongoing explosion in
international law that penalizes the U.S its citizens, and
Constitution. Warned Thurmond Able lawyers have expressed the fear
that Article VI [of the Genocide Treaty pertaining to Jurisdiction]
imposes upon the Congress an implied commitment to support the
creation of an international court for trials of American citizens
for genocide I find myself in complete harmony with their
opposition to subjecting our citizens and other persons within our
territorial jurisdiction to trial, conviction, and sentence for
acts of genocide committed in the United States by an international
penal tribunal where they might not b e surrounded by the
constitutional safeguards and legal rights accorded persons charged
with a domestic crime.It Added Senator Orrin Hatch, the Utah
Republican: "Many proponents of the United Nations have been
working increasingly to create a body of treat y law at the
international level which would require adherence of member states
and increase the power of the World Court to be diluted and
provisions of the U.S. Constitution were to be subordinated It In
the process, our national sovereignty was Statemen t s by Genocide
Treaty supporters fail to diminish these fears. Speaking for the
treaty before the Senate Foreign Relations Committee in 1981, John
Norton Moore, Vice Chairman of the American Bar Association's
Division of Public International Law, stated Th e essence of this
commitment is our devotion to an ordered existence governed by
universally accepted rules and procedures--the rule of law.It2
Senator Dodd was more explicit The simple fact is that the first
step to an international legal order has to be agreement on certain
fundamental, universal objectionstf3 Here Dodd makes no attempt to
hide the fact that he endorses elevating what he calls Itan
international legal ordertt above the U.S. Constitution.
Extremely troubling to the treaty's critics is the treaty's
definition of genocide. It defines genocide as Itthe intent to
destroy, in whole or in part, a national, ethnical, racial, or
religious group as such.It The United States originally had
insisted on including the term ttpolitical,tt but bowed in 1 947 to
Soviet bloc pressure and agreed on its exclusion. The Soviet Union
and other totalitarian regimes do not view the destruction of the
political opposition as genocide But it exempts political genocide.
Initially, the U.S. also wanted the term tfcompl icity of
tfComplicity of governmenttt attached to the definition of genocide
as in the case of Nazi Germany, government complicity provides the
means by which genocide is accomplished governmentlf also was
dropped after East bloc complaints Historically C ongressional
Digest, December 1984, p. 312.
Senate. Floor, October 10, 1984, Congressional Digest, p. 304 4
PROVISIONS OF THE GENOCIDE TREATY Article I The Contracting Parties
confirm that genocide, whether committed in time of peace or war,
is a crime und er international law which must be prevented or
Article I1 Genocide means any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical racial
or religious group A B C Killing members of the group Causing
serious bodily or mental harm to members of the group Deliberately
inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part D) Imposing
measures intended to prevent births within the group E) Forcib ly
transfering children of the group to another group.
Article I11 The following shall be punishable A) Genocide B)
Conspiracy to commit genocide C) Direct and public incitement to
commit genocide D) Attempt to commit genocide E) Complicity in
Article IV Persons commiting genocide or any of the other acts
enumerated in Article I11 shall be punished, whether they are
constitutionally responsible rulers, public officials or private
Article V The Contracting Parties undertake to enact , in
accordance with their respective Constitutions, legislation to give
effect 5 to the provisions of the present Convention and, in
particular to provide effective penalties for persons guilty of
genocide or of any of the other acts enumerated in Articl e 111
Article VI Persons charged with genocide or any of the other acts
enumerated in Article I11 shall be tried by a competent tribunal of
the State in the territory of which the act was committed, or by
such international penal tribunal as may have juris diction with
respect to those Contracting Parties which shall have accepted its
jurisdiction I Article VI1 Genocide and the other acts enumerated
in Article I11 shall not be considered as political crimes for the
purpose of extradi- tion.
The Contracting P arties pledge themselves in such cases to grant
extradition in accordance with their laws and treaties in force I
Article VI11 Any Contracting Party may call upon the competent
organs of the United Nations to take such action under the Charter
of the Unit e d Nations as they consider appropriate for the
prevention and suppression of acts of genocide or any of the other
acts enumerated in Article 111 Article IX Disputes between the
Contracting Parties relating to the interpretation, application or
fulfillment of the present conven tion, including those relating to
the responsibility of a State for genocide or for any of the other
acts enumerated in Article 111, shall be submitted to the
International Court of Justice at the request of any of the parties
to the di~pute Article X The present Convention, of which the
Chinese, English French, Russian and Spanish texts are equally
authentic, shall bear the date of 9 December 1946.
Article XI The present Convention shall be open until 31 December
1949 for signature o n behalf of any Member of the United Nations
and The Soviet Union and 15 other nations have exempted themselves
from Article IX comp1iance;jurisdiction by The International Court
of Justice. 6 of any non-member State to which an invitation to
sign has bee n addressed by the General Assembly.
The present Convention shall be ratified, and the instruments of
ratification shall be deposited with the Secretary-General of the
After 1 January 1950 the present Convention may be acceded to on
behalf of any Member of the United Nations and of any non-member
State which has received an invitation as aforesaid.
Instruments of accession shall be deposited with the*Secretary
General of the United Nations.
Article XI1 Any Contracting Party may at any tim e, by notification
addressed to the Secretary-General of the United Nations, extend
the application of the present Convention to all or any of the
territories for the conduct of whose foreign relations that
Contracting Party is responsible.
Article XI I I On the day when the first twenty instruments of
ratification or accession have been deposited, the
Secretary-General shall draw up a proces-verbal and transmit a copy
thereof to each Member of the United Nations and to each of the
non-member States conte mplated in Article XI.
The present Convention shall come into force on the ninetieth day
following the date of deposit of the twentieth instrument of
ratification or accession.
Any ratification or accession effected subsequent to the latter
date shall become effective on the ninetieth day following the
deposit of the instrument of ratification or accession.
Article XIV The present Convention shall remain in effect for ten
years It shall thereafter remain in force for successive periods
from the date of it s coming into force of five years for such
Contracting Parties as have not denounced it at least six months
before the expiration of the current period addressed to the
Secretary-General of the United Nations.
Denunciation shall be effected by a written n otification Article
XV If, as a result of denunciations, the number of Parties to the
present Convention should become less than sixteen, the 7
Convention shall cease to be in force as from the date on which the
last of these denunciations shall become ef fective.
Article XVI A request for the revision of the present Convention
may be made at any time by any Contracting Party by means of a
notifica tion in writing addressed to the Secretary-General.
The General Assembly shall decide upon the steps, if any, to
Article XVII be taken in respect of such request.
The Secretary-General ofthe United Nations shall notify all Members
of the United Nations and the non-member: states contem plated in
Article XI of the following: (A) Signatures, ratifica tions and
accessions received in accordance with Article XI B) Notifications
received in accordance with Article XII C) The date upon which the
present Convention comes into force in accord ance with Article XII
I D) The abrogation of the Convention in accordance with Article XV
E) Notifications received in accord ance with Article XVI.
Article XVIII The original of the present Convention shall be
deposited in the archives of the United Nations.
Article XIX The present Convention shall be registered by the
Secretary General of the United Nations on the date of its coming
LINGERING QUESTIONS On February 26, 1985, the Senate Judiciary
Committees Subcommittee on the Constitution held hearings to
examine potential impact of Genocide Treaty ratification on the
rights guaranteed by the U.S. Constitution. At those hearings,
Robert Friedlander professor of law at Pettit College at Ohio
Northern University, testified, the Genocide Convention is wrong in
its fo c us confused in its substance, and unpredictable as to
future applications. Individuals cannot and do not commit genocide.
Only states or governments can per petrate 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 compo sition.
Genocide, as defined by the convention, can 8 apply to just about
anyone, doing almost any act posing almost any threat to virtua lly
any type of victim. Article I1 provides the possibility that a
single victim may suffice for a charge of genocide.
Testifying before the Senate Foreign Relations Committee on March
5, 1985, Grover Rees, an adjunct scholar at the Center for Judicial
Stu dies, maintained treaty definitions were too broad and that
other provisions posed serious conflicts with U.S. law regarding
free speech, extradition, and liability. Rees told the committee
that because of the way the treaty is worded, the U.S could be ch a
rged with genocide for Ilpolicies deemed to have adverse effects on
the birth rates, death rates, or distinct racial identity of
indigenous minority groups; United States support for birth control
programs in the Third World; police I campaigns against th e Black
Panthers; the conduct by the United States in the war in Indochina;
and Israeli policies toward the Palestinians on the West Bank and
Rees and witnesses at the March 5th hearings voiced concern that
the World Court, "which would have f inal authority to define the
international obligation of the United States," would not
appreciate domestic differentations between If incitement" and
iladvocacylt with regard to free speech and mandate chaotic extradi
tion requirements allowing for the ar rest, detention, and. extradi
tion of foreign diplomats and dignitaries visiting the U.S.
Israel would be particularly susceptible, as "the most frequent
charges of genocide during the postwar period,have been those
Phyllis Schlafly, presi dent of Eagle Forum, told the Senate
committee on March 5, 1985, that the treaty could lead to such
bizarre situations as Israel is tried for carrying out a preemptive
raid against the Palestine Liberation Organization A U.S. Senator
or Congressman who pr aises Israel's self-defense action is accused
of Ilpublic incitement to commit genocide.
The Nestle Corporation is accused of Ifinflicting on the group
conditions of life calculated to bring about physical destructioni1
because of its sale of infant formula to Third World countries.
Union Carbide is accused of lfconspiracyl1 and llcomplicitylt to
commit genocide in India. I THE LUGAR-HEMS RESERVATIONS I On May
21, 1985, the Senate Foreign Relations Committee approved the
Genocide Treaty by a 10 to 0 vote, with the provisos offered by
Senators Lugar and Helms. I Major reservations included: 9 In cases
involving the U.S the U.S. must consent to juris diction of the
International Court of Justice before the case can be brought
before that body.
Enabling legislation and other action required by the U.S to comply
with the treaty must not conflict with the U.S Constitution.
Genocide means the destruction or intent to destroy a substan tial
part of a national, ethnical, racial, or religious group.
Mental harm (Article IIb) means permanent mental impairment through
drugs, torture, or similar techniques.
Extradition is limited to acts criminal under the laws of the
requesting and requested states. States retain the right to try
offenders in their own courts.
Acts committed in the course of armed conflicts absent of actual
intent to commit genocide are exempt.
The Lugar-Helms provisos passed by a thin 9 to 8 margin.
Then 10 of the 17 committee members voted to send the treaty to the
full Senate. Fiv e members voted I1presentt1 and two were absent.
Many Democrats seem determined to block the Lugar-Helms package.
Led by Dodd, they plan to attempt to have Lugar-Helms removed once
the treaty reaches the Senate floor treaty by the full Senate last
Decembe r 5. But Senator Dole responding to pressure from Senate
colleagues and the Reagan Administration, is expected to bring the
treaty to the Senate floor on or shortly after February 18, 1986
but only in the form of a unanimous consent agreement. The Lugar-He
l ms reservations may not survive pre-agreement jockeying Fearful
of this, Helms moved to prevent consideration of the Conservatives,
led by Senators Symms, McClure, and Denton also are dissatisfied
with the Lugar-Helms provisos complains that, even with Lu g
ar-Helms, the treaty exempts political genocide and llcomplicity of
government,I' allows extradition of U.S. citizens to foreign
tribunals, and may actually make it more difficult to try
international criminals Symms More worrisome is a legal
technicality . Several scholars have argued that U.S. reservations
to the treaty are subject to approval by all 96 signatory nations,
not just the U.S. Senate.
It was Helms who in March 1984 sounded perhaps the sternest warning
to his colleagues about hasty ratificatio n 1 say that we should
pass a Genocide Convention, but only if we can make it work. We
must make it work so that our domestic affairs are not subjected to
the supervision of international bodies, and that our security
interests, and those of our allies, a r e not jeopar dized. If we
do not find a way to do this, we will regret the ratification of
this Convention for generations to come.I'lo CONCLUSION Is the
Genocide Treaty in the best interests of the United States? Elliott
Abrams, when he was Assistant Sec r etary of State for Human Rights
and Humanitarian Affairs, testified that "The treaty] gives
concrete expression to our opposition to the horrors of genocide
and symbolizes that genocide is a crime against humanity which
merits international censure.Il5 is precisely what the treaty does
not do. The treaty provides no Ilconcrete expressionll but offers
only lip service. Such a limp reponse to the horrors of genocide
trivializes U.S. determination to oppose genocide Yet this In
truth, as a HeritAge Foundation study.noted in 1977 1) The treaty
will be used more for propaganda purposes than as an effective
deterrent 2 slaughter, such as in Cambodia, since the treaty's
enactment Actions have never been taken against those guilty of
mass 3) The treaty does not mes h with the U.S. legal system 4
international bodies makes it almost certain that the treaty would
be used by other countries against the United States for The drift
from democracy by the United Nations and other propaganda purposes.
Americans are opposed t o genocide No other nation has made greater
sacrifices in lives and resources to battle regimes primarily
because of their evil nature and because they engaged in genocide.
The U.S. need prove to no one its opposition to genocide; the
record on this is cl e ar. The Genocide Treaty in no way will
toughen'the U.S. stand against genocide. It may, in fact,
trivialize it. As important, the treaty, even with the Lugar-Helms
reservations, still raises troubling questions of conflict with the
U.S. Constitution. And s igning the treaty will not even prove of
symbolic benefit to the U.S It will shackle the U.S. with the
burden of invoking reservations to avoid the treaty. Each time the
U.S. does this, it will suffer symbolic injury As it has been since
1946, the Genocid e Treaty is seriously flawed.
As it has been since 1946, the Genocide Treaty does not merit
United States support To the contrary I Prepared for The Heritage
Foundation by Mark Huber a Washington consultant Senate Foreign
Relations Committee, September 12, 1984.
Jeffrey B. Gayner Genocide Treaty," Heritage Foundation Issue
Bulletin No. 7, May 16, 1977, pp 10-11.