56. Cf., id; National Indian Youth Council v. Bruce, 306 F. Supp. 313, 317 (1973). 59. 60. Reid v. Covert, 354 U.S. 1, 16-18. The Library of Congress legal analysts agreed-upon standard for determining what the limitations are." CON- J. WILLIAMS, CONSTITUTIONAL ANALYSIS IN A NUTSHELL 177 (1979). 61. Cf., L. TRIBE, AMERICAN CONSTITUTIONAL LAW 169 (1978); NOWAK, ROTUNDA, & 62. D. ENGHAHL, CONSTITUTIONAL POWER: FEDERAL AND STATE IN A NUTSHELL 227 and 69. L. HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 19-26 (1975). 72. 73. 74. 75. 76. 77. 76. 315 U.S. 203, 223, 230-234. 354 U.S. 1, 16-18. On the development and operation of executive agreements, see E.S. CORWIN, THE CONSTITUTION AND WHAT IT MEANS TODAY 134-139 (rev. by H. Chase & C. Ducat, 13th ed. 1975). 354 U.S. 1, 18. Justice Powell's recent pre Id., at 44 (Frankfurter, J., concurring). Quoted by Tananbaum, The Bricker Amendment Controversy: Its Origins and Id., at 81 fn. Reid v. Covert, 354 U.S. 1, 50 (Frankfurter, J., concurring). 81. Letter to James Madison, Dec. 20, 1767, in THE PORTABLE THOMAS JEFFERSON 429 (M.D. Peterson ed. 1977). 89. 175 U.S. 677, 700. Bilder, Integrating International Human Rights Law into Domestic Law-- 90. Paust, Litigation Human Rights in U.S. Courts, id., at 139. 91. Wright, The Law of the Nuremberg Trial, 41 AM. J. INT'L L. 38, 57 (1947). 92. The Eichmann Court on this issue was in agreement with the 1.C.J. See 93. The Over the Top, 5 F. 2d 838, 842 (D. Conn. 1925). A further pronouncement, though undeniably dicta, adds: "It is not the function of treaties to enact the fiscal or criminal law of a nation. For this purpose, no treaty is self-executing." Id., at 845. But the U.S. Supreme Court has 95. See, especially, Symposium-Federal Jurisdiction, Human Rights, and the Law of Nations: Essays on Figlartia v. Pena-Irala, 11 GA. J. INT'L & COMP. 98. 99. The Supreme Court is now considering whether or not to take cert in this case. 53 U.S. L.W. 3235 (Oct. 1984). 726 F. 2d 774, 812-813. 101. 102. 2 C. ANTIEAU, MODERN CONSTITUTIONAL LAW: THE STATES AND FEDERAL GOVERN- Oliver, Problems of Cognition and Interpretation in Applying Nerms of 103. Recent proponents of the Convention appear to emphasize the symbolic importance of American approval and its supposed usefulness for the Helsinski follow-up conferences. See 7 ABA, Standing Committee on Law and National Security: Intelligence Report, 1 (Jan. 1985); Murphy, Human Rights in United States Foreign Policy, 4 HOU. J. INT'L L. 133, 136 (1981); Feinrider, First Duty for the U.S. Senate: Pass the Genocide Convention, Miami Herald, Dec. 31, 1984, at 9 A, col. 3. Symbolism, however, can build false hopes and be a cruel deceiver. The value of the Helsinki follow-up meetings, and the U.N.sponsored human rights conferences, with respect to actions of the Soviet Bloc and the majority of the U.N. membership, has proved to be a will-o-thewisp. The United States will be the target of the genocide provisions, and not the beneficiary, if the past is also prologue. Analysis of the Genocide Convention by Robert A. Friedlander Ohio Northern University Preamble The Genocide Convention is wrong in focus, misleading in content, and unpredictable as to future application. States or governments--not individuals-commit genocide [A.L. I. Restatement of the Foreign Relations Law of the U.S. (Rev.) $702 (Tentative Draft No. 3, Mar. 15, 1982)] if genocide is to be viewed as mass murder of a particular nationality or specific group. The definitions offered by Senator Pell ("the killing of an entire people") and Senator Percy ("the attempted wholesale extermination of an entire ethnic group") are better than those put forward by the Convention itself. [130 CONG. REC. S14041, S 14056, Oct. 10, 1984] Despite the claim of the Convention's preamble, U.N. General Assembly Resolution 96 (I) (Dec. 1946) did not make genocide a crime under international law nor did the Nuremburg Judgment. The Nuremburg Principles (1950) drafted by the International Law Commission, were never approved by the U.N. General Assembly. The International Court of Justice has indicated that the Genocide Convention had attained the status of a universal norm [Reservations decision, 1951], but there is no validity in either custom or state practice for this assertion. If this was so, the supposed necessity for approving the Convention would be irrelevant. Genocide has not been "condemned by the civilized world" since 1948, and there is abundant evidence to indicate that many states have engaged in one form of genocidal activity or another. The problem with the Convention's definition and listing of related crimes (undefined), is that they are so all-embracing as to become meaningless in any legal or def Article I No distinction is made between "time of peace" or "time of war," nor is there any indication that war crimes have been fully spelled out by the Geneva Conventions of 1949, the Nuremburg Judgment, the Tokyo Judgment, the trials of the lesser German war criminals, and by In re Yamashita [327 U.S. 1 (1946)]. Mass murder of civilians or prisoners of war, in time of war, are covered by these precedents. The effect of this badly worded article is to attach liability to any U.S. military conflict where the enemy is of a different race, creed, or color. In fact, by the terms of Article II, conflict with another nationality of whatever race may be enough to raise the charge of genocide. The so-called Stockholm War Crimes Tribunal initiated by philosophers Bertrand Russell and Jean-Paul Sartre in 1966-67 was unanimous in its verdict that the United States was guilty of genocide in Vietnam. The racism of U.S. soldiers, plus the killing, was enough to convict the United States. One noted American legalist agreed (Richard Falk), and another (Hugo Bedau) concluded: "Not proven, not quite." [Le Blanc, 78 AM. J. INT'L L. 369, 381-382). Article II The definitions put forward by this Article are violative of substantive due process in American law, being vague and overbroad, arbitrary and capricious, and requiring an ordinary person of common intelligence to have to guess at its meaning. No mention is made of justification or excuse, an integral part of Anglo-American criminal law. No allowance is granted for legitimate self-defense. Under these provisions, with the victim groups being all-inclusive, any actor committing some form of violence, justifiable or not, against almost any type of victim, can be charged with the crime of genocide. The words "as such" in the first clause are a catch-all phrase which generalizes the victim category rather than particularizing it. The words "in part" are equally vague, leading some commentators and some signatories to make the claim (not effectively disputed) that a single victim would suffice for the crime of genocide. [Genocide Study, Report to the Comm. on Human Rights, U.N. Doc. E/Ch.4/Sub.2/416, ECOSOC, 31st Sess., July 4, 1978). The so-called State Department Understanding on the phrase "intent to destroy" does not clarify anything, for like the original wording, it deals with motive and not with intent. The actual intent element required in common law murder, or by the Model Penal Code approach utilized in a large number of states, is missing from this definition. Motive helps to establish first degree murder, but it is not an element of the crime of homicide. And the distinction between homicide and genocide is blurred at best in this Article. At the very least, homicide becomes a subset of genocide. Category (a) does not distinguish between lawful and unlawful killing. Category (b) is confusing with respect to the "crime" of mental harm. The State Department Understanding on mental harm, requiring "permanent impairment of mental faculties," does nothing to explain the substantive nature of the crime. A cause of action for the intentional infliction of emotional distress in U.S. tort law contains the element of extreme and outrageous conduct [Melorich Builders, Inc. v. Superior Court of San Bernadino, 160 Cal. App. 3d 931, 936 (1984)). Government prosecution of conscientious objectors who refuse to participate in the draft may incur liability for genocide under the fuzzy phrasing of this proscribed activity. Category (c) is likewise obscure. Under this ambiguous proscription, the United States Government would have been liable to charges of genocide by the American Indian Movement and the Oglala Sioux Civil Rights Organization in the Wounded Knee Controversy in 1979. [See statement of Facts, The Innocent Victims of the Occupation of Wounded Knee v. the United States, U.S. Court of Claims, Dec. 3, 1979. Cong. Ref. No. 4-76] Category (d) can well include government-sponsored birth control programs among minority groups, let alone the establishment of government-funded abortion clinics in minority areas. Whatever the merits or demerits of the abortion dispute, abortion is not genocide. Category (e) may be invoked in the event of a court ordering dependent children of a particular minority group to foster homes. One incidental transfer may suffice. In sum, this Article contains no identifiable standards relating to American law, is unconstitutionally vague and unreasonable on its face because it mandates arbitrary enforcement, and fails to describe with particularity the elements of the alleged crimes. Moreover, in combination with Articles III and IV, Article II may impose strict liability, a violation of common law and contemporary criminal code provisions which dictate that felonies include both |