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The Intent to Destroy Groups in the Genocide Convention: The Proposed U.S. Understanding

Published online by Cambridge University Press:  27 February 2017

Lawrence J. LeBlanc
Lawrence J. LeBlanc*
Affiliation:
Marquette University
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Extract

The United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) in December 1948. A representative of the United States signed the Convention, and President Truman later transmitted it to the Senate with a request that it give its advice and consent to ratification. The Senate Foreign Relations Committee held hearings on the Convention in 1950. It has since held hearings on four occasions (1970, 1971, 1977 and 1981), and favorably reported the Convention to the Senate four times (1970, 1971, 1973 and 1976). However, the Senate has failed to act; a resolution of ratification was debated on the floor in 1973-1974, but it fell victim to a filibuster and the Convention remains in committee.

Type
Research Article
Information
American Journal of International Law , Volume 78 , Issue 2 , April 1984 , pp. 369 - 385
Copyright
Copyright © American Society of International Law 1984

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References

1 Article V of the Genocide Convention, 78 UNTS 277, states: “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.”

Article III states: “The following acts 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 genocide.”

2 S. Exec. Rep. No. 23, 94th Cong., 2d Sess. 6, 18 (1976).

3 Bryant, , Comment, Part I: Substantive Scope of the Convention, 16 Harv. Int’l L.J. 686, 692 (1975)Google Scholar.

4 Robinson, The Genocide Convention—Its Origins and Interpretation, reprinted in Hearings on the Genocide Convention Before a Subcomm. of the Senate Comm. on Foreign Relations, 81st Cong., 2d Sess. 487, 498 (1950) (emphasis added) [hereinafter cited as 1950 Senate Hearings].

5 3 UN GAOR C.6 (73d mtg.) at 97 (1948).

6 Id. at 92–97.

7 Id. at 96.

8 Id. at 97.

9 Id. at 96.

10 Id. at 97.

11 Article IX of the Genocide Convention states:

Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

12 1950 Senate Hearings, supra note 4, at 12. See also Perlman, , The Genocide Convention, 30 Neb. L. Rev. 7 (1951)Google Scholar.

13 1950 Senate Hearings, supra note 4, at 4.

14 Id. at 201–02.

15 Id. at 204–05.

16 See Van Dyke, V., Human Rights, the United States and World Community 131–38 (1970)Google Scholar.

17 The ABA House of Delegates voted to oppose ratification of the Convention in September 1949. In February 1970, an attempt to reverse the 1949 decision failed by the close margin of 126 to 130. By 1972 every section of the ABA that had specialized competence on the matter had come out in favor of ratification, and at a meeting in February 1976, the House of Delegates endorsed ratification with the “understandings” and the “declaration” proposed by the Senate Committee on Foreign Relations. See Phillips, , The Genocide Convention: Its Effect on our Legal System, 35 A.B.A.J. 623 (1949)Google Scholar; Phillips, & Deutsch, , Pitfalls of the Genocide Convention, 56 A.B.AJ. 641 (1970)Google Scholar; Bitker, , Genocide Revisited, 56 A.B.AJ. 71 (1970)Google Scholar; Goldberg, & Gardner, , Time to Act on the Genocide Convention, 58 A.B.A.J. 141 (1972)Google Scholar; and Resolution, 62 A.B.A.J. 475–76 (1976).

18 Other groups, especially Liberty Lobby, have replaced the ABA as critics of the Convention. At the 1981 Senate hearings, the representatives of Liberty Lobby were the most outspoken critics. In fact, they attacked the ABA for reversing its position on ratification. See Hearing on the Genocide Convention Before the Senate Comm. on Foreign Relations, 97th Cong., 1st Sess. 78–99 (1981).

19 Three different drafts of an executive report were prepared in 1950, but none was ever released because the Foreign Relations Committee decided not to report the Convention to the Senate. The drafts were published in 1976 in 2 Executive Sessions of the Senate Foreign Relations Committee, Historical Series 781–805 (1976). The understanding proposed then stated:

That the United States Government understands and construes the crime of genocide, which it undertakes to punish in accordance with this convention, to mean the commission of any of the acts enumerated in article II of the convention, with the intent to destroy an entire national, ethnical, racial, or religious group within the territory of the United States, in such manner as to affect a substantial portion of the group concerned.

20 S. Exec. Rep. No . 23, supra note 2, at 6 (emphasis of “entire” added). Some commentators on the Convention have misunderstood the committee’s reasoning. They have concentrated their attention on the reference to a “substantial part” of a group in the proposed understanding. However, as the statement quoted here makes clear, the understanding is directed at the word “intent.” See Bryant, supra note 3, at 692–93. See also Schiller, , Life in a Symbolic Universe: Comments on the Genocide Convention and International Law, 9 Sw. U. L. Rev. 47, 65–67 (1977)Google Scholar.

21 S. Exec Rep. No. 23, supra note 2, at 6–7.

22 Id. at 15–16.

23 Id. at 16.

24 Id. at 33–38 (emphasis added). Reference here is to §1092 of the Bill, at 35. Bryant and Schiller, supra note 20, also fail to take into account this contradiction in their analyses of the understanding.

25 S. Exec. Rep. No. 23, supra note 2, at 19.

26 Executive Sessions of the Senate Foreign Relations Committee, supra note 19, at 361–400, 643–54, 781–805.

27 Id. at 645.

28 Id.

29 Id.

30 Id. at 645–46.

31 Id. at 370.

32 Id.

33 Id.

34 Id.

35 120 Cong. Rec. 2202–04 (1974).

36 Hearings on the Genocide Convention Before the Senate Comm. on Foreign Relations, 95th Cong., 1st Sess. 13–17 (1977) [hereinafter cited as 1977 Senate Hearings].

37 Korey, , Human Rights Treaties: Why is the U.S. Stalling1!, 45 Foreign Aff. 414 (1967)CrossRefGoogle Scholar.

38 Hearings on the Genocide Convention Before a Subcomm. of the Senate Comm. on Foreign Relations, 92d Cong., 1st Sess. 55 (1971).

39 Id.

40 Id.

41 Id. at 56.

42 Id.

43 The Senate Foreign Relations Committee favorably reported the Convention to the Senate on four occasions during the 1970s (1970, 1971, 1973 and 1976). The resolutions of ratification can be found in executive reports for each of those years: S. Exec. Rep. No. 95, 91st Cong., 2d Sess. (1970); S. Exec. Rep. No. 6, 92d Cong., 1st Sess. (1971); S. Exec. Rep. No. 5, 93d Cong., 1st Sess. (1973); S. Exec. Rep. No. 23, 94th Cong., 2d Sess. (1976).

44 Genocide Act 1969, ch. 12, 40 Halsbury’s Statutes of England 387–90 (3d ed.).

45 Can . Rev. Stat., 1st Supp. 171–81 (1970).

46 S. Exec. Rep. No. 23, supra note 2, at 34–35.

47 Genocide in Paraguay (R. Arens ed. 1976).

48 Id. at 8–16, 141.

49 For a partial record of the proceedings, see Against the Crime of Silence: Proceedings of t he International War Crimes Tribunal (J. Duffett ed. 1970).

50 Sartre, J.-P., On Genocide 57–58 (1968)Google Scholar.

51 Id. at 58.

52 Id. at 79.

53 Id. at 78–79.

54 Lewy, G., America in Vietnam 301–04 (1978)Google Scholar.

55 Bassiouni, , International Law and the Holocaust, 9 Cal. W. L. Rev. 274 (1979)Google Scholar.

56 Id. at 275.

57 Bedau, , Genocide in Vietnam?, in Philosophy, Morality and International Affairs 46 (Held, V. et al. eds. 1974)Google Scholar. See also Falk, , Six Legal Dimensions of the United States Involvement in the Vietnam War, in 2 The Vietnam War and International Law 216 (Falk, R. ed. 1969)Google Scholar.

58 See Bryant, note 3 supra and accompanying text.

59 S. Exec. Rep. NO. 23, supra note 2, at 6:

Harassment of minority groups and racial and religious intolerance generally, no matter how much to be deplored, are not outlawed per se by the Genocide Convention. Far from outlawing discrimination, article II is so written as to make it, in fact, difficult to prove the “intent” element necessary to sustain a charge of genocide against anyone.

See also 1977 Senate Hearings, supra note 36, at 31.

60 See Chaudhuri, K., Genocide in Bangladesh (1972)Google Scholar.

61 For the views of a former U.S. Ambassador to Burundi, see Melady, T., Burundi: The Tragic Years (1974)Google Scholar.

62 Genocide in Paraguay, supra note 47, at 38.

63 Id.

64 Davis, S., Victims of The Miracle: Development and The Indians of Brazil 167–68 (1977)Google Scholar.

65 See Münzel, Manhunt, in Genocide in Paraguay, supra note 47, at 19.