Answer. There could be at least some difficulties if a request were made to extradite such diplomats and dignitaries to a country claiming that they were guilty of genocide. One would have to look at the fact situation involved, namely if this is an indivdual who is accredited to the United States, does his immunity as a diplomat prevail? Does immunity of a foreign dignitary on a vists to this county prevail? All this is uncertain. It could be held that a visiting diplomat and dignitary it not immune to service of process. This question would have to be answered on a case by case basis. The point, of course, is that it could happen and would create, at the very least, an embarrassment to the United States.

RESPONSES BY RODOLPHE J.A. DE SEIFE 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. As drafted, the genocide convention does apparently permit the prosecution of an individual even if the act complained of consisted of a single act against a single individual. This has been elicited over the years by numerous statements of witnesses appearing before the Senate Foreign Relations Committee and is the reason behind the proposed reservation that the number involved must be "substantial" before the crime of genocide might be alleged.

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?

Answer. Yes. The fact that the definition of genocide does not include "political" group persecution does not permit a state to designate a group as "an enemy of the state" and therefore act outside the applicability of the convention. Incidentally, something ought to be said about the absence in the genocide definition of the word "economic group". Obviously a regime in power can arbitrarily kill or harm individuals belonging to a certain economic group which it views as an impediment to social change and then state, with a little bit of creativity, that these actions escape the application of the genocide convention. Whether or not the inclusion of these words in the definition of genocide is desirable, at this stage, is from my own viewpoint, something that should be explored more fully.

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. Yes. From the foregoing testimony it is obvious and has been obvious all along, that the Jews could have been persecuted by Hitler merely by being labeled as "enemies of the state". Therefore, even had the Genocide Convention been in existence (absent policy declarations which were openly made by the Nazi government as to why Jews were being persecuted) Hitlerites could easily have acted outside the jurisdiction of our Genocide Convention.

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?

Answer. Yes. As stated above, the answer will have to be in the affirmative. Question No. 5. Was it the east-block, or communists nations, that objected to the inclusion of "political" persecution in the Convention, as has been alleged?

Answer. Yes. In the early part of the discussions which eventually resulted in the adoption of the Genocide Convention, U.N. Document 20 which was published as document A/401, A/401/abd.1, 2 and 3 dated 27 September 1947 the United States took the position that "considerable question has been raised as to whether "political groups should be included in the definition. The United States is able to agree to the inclusion of political groups on the understanding that genocide as to such groups is confined to physical destruction."

History supports the contention that the communist nations, including East Block nations, objected to the inclusion "political" persecution in the convention as an attempt to limit the sovereignty of the state and bringing into the arena of international crime definition what is considered, in socialist nations, a legitimate way for the government to overcome opposition by organized groups.

Question No. 6. Why are 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? On the theory that a

Answer. The theory behind this exclusion of government liability from the definition of genocide was primarily a communist nations view that a state is a legal entity as much as a "corporation”, and such "entity” cannot be guilty of a crime. Question No. 7. Was it the Soviets that objected to the language "with the complicity of government" to the Genocide definition?

Answer. Yes. Yes the soviets were objecting to the "language with the complicity of government" to the Genocide convention and is largely due to their intractable position that the American delegation yielded and agreed to do away with this language so as to make it easier for the soviets to sign the convention.

Question No. 8. Would ratification of the treaty supersede all previous treaties and acts of Congress that are inconsistent with its terms, including bilateral extradition treaties with other nations?

Answer. Yes. If we take the view that it is the most recent law that prevails, then I would state that this could very well include bilateral extradition treaties but for the language in the convention which specifically states that the genocide convention would be consistent with the terms of existing extradition treaties which, presumably, might have to be amended in order to implement the states' responsibilities under the convention.

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?

Answer. Possibly. It would be possible for a person to be tried before an international tribunal even if they're tried by their own nation for the same act. This certainly was true in the United States where for the longest time people were prosecuted under a crime which was declared to be a federal crime and then were also tried in the state courts, e.g. the Smith Act and the so-called Little Smith Acts.

Question No. 10. If this is true, would that not offend the Constitution's provisions against "double jeopardy"?

Answer. Many countries do not have any protection against "double jeopardy." 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. Probably. If we are faced with a new definition of a crime which overrides local definitions of murder it would seem to me that this is the crime for which such a person would have to be tried.

Question No. 12. Would a person tried in United States courts for the act for genocide, be accorded the constitutional and legal protections that an accused defendant enjoys for other crimes under U.S. law?

Answer. Yes, there is no reason to believe otherwise. The problem is that it would, however, result in possibly different instructions to a jury which might to some extent, prove to be amendatory of existing criminal rights.

Question No. 13. Would a person accused of the crime of genocide before an international tribunal be accorded the protection 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. It is obvious that an international tribunal would have to hear a case under its own rules and these may or may not give such protections depends on how that tribunal is set up.

Question No. 14. Would a Congressionally passed statute expanding the rights of the accused, or an evidentiary rule of a judge that expands those rights, in a prosecution of an individual in U.S. courts for the act of genocide, subject to the legislators or judges to prosecution as well?

Answer. It is possible that by a broad interpretation of the convention that liability could be incurred by legislators or judges for acts which might be perceived as coming within the ambit of the Genocide Convention.

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"? Answer. Yes. At this time there is no distinction between civilians and military personnel.

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. By its terms the treaty is executory. It could however be argued that it is

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?

Answer. Ratification could subject a citizen of the United States to international jurisdiction. Unless a specific reservation is made, the United States might be precluded to object to the jurisdiction of such an international 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 Palastinian people?

Answer. Yes.

Question No. 19. If so, would Prime Minister Peres, or other Israeli official be subject to arrest while visiting the United States, and subsequent extradition, upon the complaint of the P.L.O.?

Answer. It is a possible scenario of a highly speculative nature. What could happen is that such charges could be brought for political propaganda purposes in order to embarrass our allies and us.

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?

Answer. Certainly the argument can be made by those who claim to defend or represent the rights of certain minority groups that to reduce entitlements could be equated to of "genocide" if such cuts affect one group more than another.

Question No. 21. Given that the Nuremberg Declarations found that the promotion 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. Yes. There is little doubt that this argument can and will be made. 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. As I stated earlier, I do not believe that Hitler would have been prevented from pursuing the elimination of the Jewish people and all others that were persecuted under his regime.

Question No. 23. Do you believe that Stalin would have been prevented from fostering the mass-starvation and executions of the Ukraine?

Answer. The same answer applies. Mass-starvation is not currently prevented in Ethiopia by a government that sees some of the tribes that are starving as being political enemies.

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. No.

Question No. 25. Why were not the mass executions of Kampuchea stopped by the Genocide Convention?

Answer. Aside from the fact that the Genocide Convention has no teeth and that is a symbol, as claimed by the proponents of ratification, from a legal viewpoint, by excluding government from the genocide definition, the International Court of Justice has no jurisdiction over individuals.

Question No. 26. Why is the persecution of the Mesquito Indians in Nicaragua not the subject of a genocide prosecution right now?

Answer. The same answer as above pertains.

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. Yes, it is possible if not probable.

Question No. 28. Does the treaty permit the United Nations or other international tribunal, to cite the United States or any individual or government official, for genocide, by failing to act to pass legislation implementing the treaty?

Answer. Yes, it could very well happen and the scenario is not difficult to imagine as a legal argument in order to embarass the establishment.

Question No. 29. What would constitute "causing mental harm" under the provisions of the treaty?

Answer. This is a question which from the American viewpoint is not easy to answer; it depends on the latest court decisions or statutes in this area. The fact that the Convention is written in five languages, each one constituting the official text of the convention, means that we may have slightly different interpretations.

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. It is possible that the President or the Secretary of State because of their failure to actually retrain the persecution of a people in another country might be cited for an act of genocide before an international tribunal. Certainly this can be done, if for no other reason, for political propaganda purposes.

I thank you for this opportunity to answer your questions. I believe that several of these questions have already been answered by me in more extensive form either in my written statement or in my previous answers to Senator Hatch: I trust that this will prove satisfactory.

RESPONSES BY RODOLPHE J.A. de Seife to a WRITTEN QUESTION FROM SENATOR

PATRICK LEAHY

Question. Professor, I am particularly interested in your discussion of the First Amendment, which I consider, more than any single provision, the basis for all of our other liberties.

You state on page 13 of your testimony that the "incitement" language of the Genocide Convention might lead a court to find some form of proper First Amendment expression to be an "incitement."

Since the ratification of the Convention would not amount to an amendment of the Constitution, why isn't it a complete answer to your hypothetical case that any legal action seeking to narrow First Amendment freedoms, whether based on a novel theory or some action by Congress, is subject to the supervening authority of the Constitution?

Couldn't your fears on this account, as will as fears with respect to other constitutional provisions, be dealt with by a careful legislative history?

Answer. I do not believe that these fears can be adequately dealt with by a careful legislative history, as you suggest, Senator Leahy.

It is because I share your deep concern and your conviction that the first amendment is the cornerstone of our freedoms under the constitution that I raised the "incitement" issue, in page 13 of my prepared statement.

The American concept of freedom of speech is not shared by most countries. Even in the United States there is division among people as to the proper boundaries of free speech: the Supreme Court opinions have constantly evolved over the years (see the Fox and Feiner cases cited in the footnote on page 13 of my prepared statement). Arguably, with the convention having assumed the status of "supreme law of the land" it is the ICJ's opinion as to what constitutes "incitement" under the convention which might be controlling. Supreme Court opinions interpreting the Constitution do not occupy the exalted position of the written constitution and the treaty. Our Supreme Court may find an ICJ interpretation of the convention binding, thereby nullifying whatever legislative history we are building here.

In sum, legislative history is merely a tool to help our courts to ferret out the legislative intent when a statute is couched in terms which may be subject to different interpretations depending on the context, e.g. "may" and "shall." Under the plain meaning rule, legislative history is not binding on the Court. If we agree to the supremacy of the ICJ's determinations then our courts are bound by such rulings on "international law."

The ICJ owes no difference to any legislative history or pronouncements of the United States Senate nor is it bound by any ruling of the United States Supreme Court, let alone any other American court in matters which are exclusively within its jurisdiction such as the interpretation of the Genocide Convention since, according to the proponents of ratification who are testifying here, genocide is an "international crime" the interpretation of which can only be given authoritively by the International Court of Justice, the place where the genocide "buck" stops, to paraphase the late President Truman.

It is because of the very serious impact which the convention will have on our domestic legal system, a problem unique to the United States because of its constitution, that I conclude that the Senate should not ratify this "symbol" because there is no room within our legal and constitutional framework for "symbolic" treaties: the United States has no option under its constitution but to take every treaty it ratifies very seriously and national honor mandates our compliance.

Senator HATCH. I would like to interrupt for a moment so Sena

Senator GRASSLEY. Thank you, Mr. Chairman, and I appreciate the indulgence of the committee in granting me this opportunity. I guess I would like to express a view that this treaty has been before the Senate for a long period of time. In my 10 years in the Congress, this is the first time it has gotten the attention it is getting because of an effort to get it ratified. I think it was 10 years ago that the last effort was made to get it ratified. So we tend to concentrate on those things that are just before us. This issue is coming up again, and we are really going to focus on it.

I have been impressed in all my years in the House or Senate as I have toured my district or State holding town meetings, if I had to think of issues that have consistently come up over a 10-year period of time there would always be a person attending who would be against it, but the people who were really for it would not be around, so you can't make a judgment based on that. We have to make a studied judgment. But I guess I have been impressed that there is literature that has raised questions that I am not sure have been answered, but they have been raised. As a representative of my people, I want to know whether that point of view is right or wrong.

One of the issues is something I think you just referred to and I would like to have you and one of the other people who is for the treaty comment on this recent issue that has been brought to my attention, and that is the exemption for political crimes, if that is the right term, the exemption for political crimes in that somehow the East bloc would be exempt from a lot of things that maybe the United States could be accused of, because we don't seek an exemption.

I think maybe what you just mentioned about the murder of so many people in Kampuchea is an example of something that would be considered a political crime and would not be considered under the treaty, the same as what Hitler did to 6 million Jews, for example. I would like to have that issue addressed for both the people who would agree with that point of view, and those who would disagree with that point of view, that political crimes are or are not exempt and the extent to which that is beneficial to the Eastern bloc and excludes them from the treaty and, yet, because of the way we under our rule of law move forward, we would be guilty of a lot of things that maybe other nations would not be.

I don't care who answers first, but I would like to have one pro and one con. I should not say pro and con. I should have an answer on both sides of that issue.

Professor MOORE. Mr. Chairman, since I speak for the Convention, let me try to answer your question.

First, I think that there have been over the years a number of questions that have been raised by people who have sincerely been concerned about the Genocide Convention. I think those issues have been definitively answered in terms of any significant, serious question under the U.S. Constitution or other legal issues.

For example, when this issue initially came up at the time of the Bricker amendment debate back in the 1950's, at that point, there had been no definitive Supreme Court decision saying the Constitution of the United States prevailed over any treaty obligation in