2.

Would the Genocide Convention alter the balance of authority between the states and the federal government by making

genocide an international and federal crime?

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No. As we have seen, Congress already has clear authority to legislate under Article I Section 8 of the Constitution with respect to crimes against the law of nations. Thus, the Convention will not in fact provide Congress and the federal government any authority it does not already possess. Moreover, genocide is already an international crime and as such Congress will be exercising an important responsibility in clarifying that crime pursuant to the Convention text and the suggested United States understandings.

After considering various drafts of what ultimately became Clause 10, our constitutional framers decided that it would be virtually impossible to clearly define in the Constitution itself "offenses against the law of nations" so the language of Clause 10 was amended to explicitly give Congress the authority to "define" the various punishment of such crimes.

In one respect this question confuses the current debate by inferring that congress, by its act of giving advice and consent to ratification of this treaty, "would make" genocide an international crime. Under generally accepted concepts of customary international law genocide is today an international crime and it certainly has been for Convention parties since the Convention entered into force on January 12, 1951. Consequently, United States citizens who are alleged to have committed the crime of genocide could theoretically be prosecuted now in the courts of a foreign country for the crime of genocide. And if the United States government is alleged to have committed genocide, even within the borders of the United States, our government now could theoretically be brought before the International Court of Justice.

In terms of the authority of the several states to either

within that state, or the authority of that state to arrest and prosecute individuals for alleged commission of the crime of genocide pursuant to a federal criminal law which would flow from ratification of this Convention, the Genocide Convention would have no destabilizing affect. Such questions, in fact, do not even rise to the level of appropriate debate concerning the Convention itself, since they all are the subject of the specific provisions of implementing legislation which would be required to be enacted before the Convention is ratified by the United States. Such draft legislation in the past has provided, and one expects the ultimate legislation to provide, nonexclusive federal jurisdiction over the crime of genocide. State authority would not be preempted, except in so far as a state passed a law endeavoring to permit the commission of genocide within the state. Obviously, in this instance, such an hypothetical (and absurd) state law would be in conflict with a federal law under the supremacy clause and would as such, be invalid.

Finally, and simply stated, the Genocide Convention would not transfer jurisdiction over such crimes as homocide to the federal government from the authority of the several state governments anymore than it would transfer to the federal government exclusively the obligation to arrest and prosecute individuals alleged to have violated the federal law against murder, attempted murder or conspiracy to murder the President of the United States.

3. Does the Convention violate specific amendments to the

Constitution?

No. As has been previously pointed out the Convention was drafted specifically to conform with the United States Constitution. The only provision of the Convention on which any constitutional doubts were raised in earlier drafts related to the "incitement to commit genocide" provision in Article III in relation to the First Amendment guarantee of freedom of

clause is constitutional.

An early draft of Article III prohibited all forms of public propaganda encouraging genocide. At American insistence, this was revised into the present language specifically to accommodate the free speech protections of the United States Constitution. The First Amendment of the Constitution does not, of course, protect incitement to commit a crime. As Justice Brandeis warned in Whitney v. California, 274 U.S. 357, 375-376 (1927), "the wide divergence between advocacy and incitement...must be borne in mind." Advocacy is protected even if it expresses prejudice and hate; incitement to a crime is not. In Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), the Supreme Court reaffirmed this rule when it held that the constitutional guarantee of free speech covers "advocacy...of law violation," but does not protect "advocacy [which] is directed to inciting...lawless action."

It should also be remembered that the obligation under Article V of the Convention to enact domestic legislation that would make "incitement to commit genocide" a crime under national law is specifically qualified by the phrase "in accordance with their respective Constitutions." Moreover, under the doctrine of Reid v. Covert, as we have seen any treaty provision inconsistent with the Constitution would be invalid under national law.

Testifying in 1970 for the Department of Justice, then Assistant Attorney General William F. Rehnquist reported that freedom of speech as protected by the Constitution "could not be and ... would not be" affected in any way by the terms of the Genocide Convention. That conclusion is absolutely correct.

4.

Does ratification of the Convention limit our national

sovereignty?

All treaties create obligations binding on the United States under international law and as such to some extent limit our

the Genocide Convention, however, this question conveys little

meaning.

First, it is generally accepted American constitutional law that a later act of Congress clearly inconsistent with our treaty obligations will prevail under national law. Thus, if Congress subsequently were to seek to alter domestic implementing legislation in ways inconsistent with the treaty such alterations would be valid for purposes of domestic law. There is thus no loss of sovereignty to adopt national policies or laws binding domestically within the United States.

Second, because of the declaration to accompany ratification this Committee and Congress must first legislate domestic implementing legislation before the treaty can enter into force for the United States. That is hardly a renunciation of national sovereignty.

Third, the purpose of the Convention is to encourage nations not to commit genocide. The United States certainly has no intention ever to commit genocide. The real problem is controlling the behavior of totalitarian states that do have a propensity to genocide, as we have seen in the cases of Nazi Germany and the Khmer Rouge in Cambodia, among other examples. It is simply grotesque to seriously worry about the United States reserving the right to do what the Convention prohibits. The real concern is to effectively prevent totalitarian states from engaging in genocide by continuing to raise the costs of such behavior and clearly focusing on the insult to all humanity of

such acts.

Fourth, genocide is already a crime under customary international law and Article 56 of the United Nations Charter and as such is binding on the United States in as realistic a sense as is the Genocide Convention. Thus, there is no new international obligation undertaken by the United States pursuant

by accepting the treaty and promulgating important understandings as suggested by the Reagan Administration.

Finally, Article XIV of the Convention

contains a

denunciation clause by which parties may terminate any legal obligations arising under the Convention within at least a five year period.

5.

Does the Convention mandate changes in the independence of the American legal system?

No.

The third understanding supported by the Reagan Administration makes clear 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." This makes clear that American nationals may be tried in American courts and that there is no obligation to extradite an American national to a third country when trial is undertaken within the United States. That is, our own judicial system has priority for trial of American nationals.

There is no international criminal tribunal for trial of individuals accused of genocide and no reasonable prospect at this time that any such international tribunal will be created. The International Court of Justice has no jurisdiction to try individuals for criminal violations of the Genocide Convention.

Extradition in any case is subject to the due process guarantees written into American extradition treaties as a condition for extradition. Moreover, with the exception of only

a handful of existing extradition treaties applying to future offenses, any legal authority to extradite for genocide would need to be provided after subsequent Senate or Congressional consideration of the individual extradition treaty in question.

6.

What amendments, reservations, declarations or understandings should be attached to the Genocide Convention?

The Senate should give advice and consent to the Genocide