Adopted by the United Nations General Assembly in 1948 in response to the atrocities committed by the Nazis before and during World War II, the Genocide Convention was finally made law by the United States Senate in 1988 contingent upon a series of “conditions”—known as the “Lugar-Helms-Hatch Sovereignty Package”—which, LeBlanc suggests, markedly weakened the convention. Through careful analysis of the bitter debates over ratification, LeBlanc demonstrates that much of the opposition to the convention sprang from fears that it would be used domestically as a tool by groups such as blacks and Native Americans who might hold the U.S. accountable for genocide in matters of race relations.
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The United States and the Genocide Convention
By Lawrence J. LeBlanc
Duke University PressCopyright © 1991 Duke University Press
All rights reserved.
And, who opposes the Genocide Treaty? The John Birch Society, Phyllis Schlafly's Eagle Forum, the Liberty Lobby, and a few other far-out, extreme fringe groups. The groups that oppose the Genocide Treaty constitute a politician's dream of what each of us dearly wish we could identify with our opponent.... —Senator William Proxmire, Senate floor debate, February 1986
This book examines issues and problems related to the ratification of the Genocide Convention by the United States. The systematic annihilation of millions of Jews and members of other groups by the Nazis during World War II provided the impetus for the adoption of this convention. The word "genocide" was, in fact, coined to apply to situations in which individuals become the object of destruction not for any reason peculiar to them but simply because they are members of an identifiable group. The United Nations General Assembly discussed the subject in 1946 and decided to sponsor an international legal instrument concerning it. Work on the draft convention was completed about two years later, and it was adopted by the General Assembly on December 9, 1948, unanimously and without abstentions. Although the convention was adopted amid substantial skepticism regarding its potential effectiveness, enough countries ratified it to bring it into effect on January 12, 1951. It has since been ratified by many other countries, including the Western powers who are allies of the United States, bringing the total number of parties to 102.
In the United States, however, the question of whether or not the convention should be ratified became the subject of sporadic, acrimonious debate for almost forty years, extending from June 1949, when President Harry S Truman requested the Senate's advice and consent to ratification of the convention, to February 1986, when the Senate adopted a resolution of ratification. The Senate vote on the resolution was overwhelming: eighty-three in favor, eleven against, and six not voting — a margin well beyond the two-thirds present and voting required to approve a treaty. Even then the United States did not immediately become a party to the convention because the Senate resolution, otherwise known as the Lugar-Helms-Hatch Sovereignty Package, consented to ratification conditionally—subject to two "reservations," five "understandings," and a "declaration" that the United States would not deposit its instrument of ratification at the United Nations until Congress enacted domestic legislation to implement the convention. This legislation itself became controversial, though a bill, the Genocide Convention Implementation Act, was passed in October 1988. In November 1988 President Ronald Reagan deposited the U.S. instrument of ratification at the United Nations. The instrument included all of the conditions specified in the Sovereignty Package, except, of course, the declaration regarding the implementing legislation. According to Article XIII of the Genocide Convention, the convention became binding on the United States ninety days later, in February 1989.
Given the nature of the crime of genocide, why should proposals to ratify the Genocide Convention have engendered such protracted debate? The widespread ratification of the convention by other states does not, of course, necessarily lead to the conclusion that the United States, too, should have ratified it long ago, but it raises the question of why it did not. The extended, if sporadic, debate, the conditional nature of the resolution of ratification that was adopted in 1986, and the controversy over the passage of the implementing legislation in 1988 all suggest that proposals to ratify the Genocide Convention raised serious issues in the minds of opponents. But what were those issues? What arguments were advanced, and how cogent were they? What solutions were put forth to resolve the issues, and what are their possible or probable implications? These are among the questions dealt with in this book.
My concern with the controversy over ratification of the Genocide Convention should not be understood to mean that I attach undue importance to the act of ratification itself. In fact, there are reasons for pessimism about what the formality of ratification alone achieves. After all, broad acceptance of the convention has not resulted in the achievement of its two principal objectives—the prevention and punishment of the crime of genocide. Since World War II, genocide is alleged to have occurred in various regions of the world: in Africa, against tribal groups in various countries, including Burundi, Rwanda, and Uganda; in Latin America, against primitive Indian tribes in Paraguay and Brazil; in Asia, during the breakup of India in the late 1940s, the creation of Bangladesh in the early 1970s, the struggle for control of Cambodia (formerly Democratic Kampuchea) by the Khmer Rouge in the 1970s, and the suppression of Tamil separatists in Sri Lanka during the 1980s.
Case studies of these and other episodes provide persuasive evidence that the crime of genocide has occurred. In fact, the evidence suggests that some of the parties to the Genocide Convention have violated it with impunity, with no serious effort being made at the international level to hold them accountable. It is therefore not surprising that some scholars and human rights activists have expressed skepticism and even cynicism regarding the potential effects that ratification of the Genocide Convention would have. These skeptics, including some who have endorsed ratification, have emphasized the need to develop techniques and strategies that could be employed to prevent the occurrence of genocide, not just outlaw it. In this connection, some have called upon individuals and international nongovernmental organizations to exercise vigilance in combating genocide. Some have promoted the development of a genocide "early warning system" that could monitor, report, and predict the trends and factors leading to genocide and other basic human rights violations. Some have suggested the creation of a committee on genocide consisting of experts who would function like the committees established under other international human rights instruments.
Undoubtedly, the persistence of genocide calls for action by individuals and nongovernmental organizations. But this would not obviate the need for action by states, and agreeing to an internationally recognized and accepted rule on genocide, and insisting on compliance with it, are ways in which states can act. Despite the difficulties that might attend the enforcement of the Genocide Convention, we should not assume that it is pointless to endorse the rule on genocide affirmed in it simply because it may be difficult to enforce.
Moreover, practical benefits could accompany ratification of the convention. Genocide is a crime under customary international law. The International Court of Justice (ICJ) said as much in an advisory opinion it issued in 1951 in connection with reservations some states had made upon ratifying the convention; and the United States apparently agrees, as indicated in the authoritative Restatement of the Foreign Relations Law of the United States. Precisely what the content of that customary law is, and whether or not it differs in any meaningful way from the law established by the convention, remain unclear. Ratification of the convention could help to clarify this issue so far as the United States is concerned. It could also strengthen the hand of the United States in international forums in dealing with allegations of genocide. Many diplomats who have represented the United States at international conferences have testified that by not ratifying the Genocide Convention the United States effectively deprived itself of any basis for speaking out, even for demanding that an investigation be carried out, in instances of alleged genocide. Any attempt to raise the issue would, understandably, lead others to charge that the United States was being hypocritical: how could it profess to be concerned about genocide if it refused to ratify the one international legal instrument that pertains to it? Some have argued that the failure to ratify has undermined U.S. efforts on behalf of human rights generally.
The disagreements over the merits of ratifying the Genocide Convention are so profound and long-standing that they are likely to persist into the future, even though the United States has at last become a party. A study of the controversy over its ratification is important for two main reasons. In the first place, the question of whether or not the convention should be ratified was an issue in U.S. foreign policy for many years. Yet, apart from a few studies that have dealt with specific aspects of the controversy over its ratification, we know relatively little about the issues and problems that arose in the debate and how they were resolved. Nor do we know very much about the main participants in the debate and their strategies and tactics. Second, despite the adoption of a resolution of ratification in February 1986, the convention could remain an issue in foreign policy in years to come because of the conditional nature of the resolution.
Ratification as a Foreign Policy Issue
The question of whether or not any treaty should be ratified by the United States is fundamentally a matter of foreign policy. In other words, it is a political issue whose resolution can be characterized by conflict as much as by cooperation. In fact, in the realm of foreign policy, the U.S. Constitution invites both conflict and cooperation between the executive and legislative branches of the government. As we shall see, the U.S. experience in dealing with the Genocide Convention amply demonstrates this point in regard to the exercise of the treaty-making power.
The treaty-making power, broadly conceived, is a shared power. According to Article II, section 2, of the U.S. Constitution, presidents have the power, "by and with the Advice and Consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." Historically, problems have arisen in interpreting various aspects of this clause. How do presidents "make" treaties? What does it mean to say that the Senate gives "advice and consent" to treaties? Does the Senate have a role to play in the negotiation of treaties, or is its role limited to the approval of treaties? These questions have been answered in practice. Presidents or their designated representatives have dominated the negotiating process, so the making of treaties has come to be understood as an executive function. On some occasions presidents have included members of the legislative branch in the negotiation process, as occurred, for example, when the United Nations Charter was drafted, but by and large the Senate's role in the treaty-making process has been to give or withhold its approval. Should it give its approval, the president then proclaims (ratifies) the treaty.
The potential for conflict in the treaty-making process is therefore quite great. A president may or may not choose to seek the Senate's advice and consent to the ratification of a treaty, and his decision will probably depend at least in part on what he perceives the national interest of the United States to be. The Senate may or may not decide to give its consent, and its decision may reflect a different conception of the national interest. Most presidents since World War II have perceived ratification of the Genocide Convention as being in the interest of the United States. In fact, with the exception of President Dwight D. Eisenhower, for reasons discussed later, all presidents since Truman have endorsed ratification, though some, notably Richard Nixon, Jimmy Carter, and Ronald Reagan, pushed harder for ratification than others. But the presidents faced formidable opposition in the Senate.
It is ironic that the issue should ever have become so controversial. The U.S. delegation to the United Nations participated actively in the negotiations that led to the convention's adoption, and, whatever misgivings they might have had about any of its provisions, they shared in the broad consensus on the instrument as a whole. A representative of the United States signed the convention, indicating agreement in principle with what it provides. Therefore, President Truman might have believed that the Senate would treat his request for advice and consent to ratification of the convention in June 1949 as a routine matter. Instead, it was then that the long and bitter struggle over ratification began.
A subcommittee of the Senate Committee on Foreign Relations held hearings on the Genocide Convention in 1950. It recommended ratification, but in the face of vigorous opposition from some senators and from powerful and influential organizations such as the American Bar Association (ABA) the full committee failed to report the convention to the Senate. During the 1970s Presidents Nixon and Carter urged the Senate to reconsider the convention. Their efforts produced somewhat different results from those of President Truman, but not ratification. The Committee on Foreign Relations or subcommittees thereof held hearings on the convention in 1970, 1971, and 1977, and favorably reported it to the Senate in 1970, 1971, 1973, and 1976. Throughout all these years, however, the Senate actually debated the possibility of adopting a resolution of ratification only once, in 1973-74, and it fell victim to a filibuster. The committee held hearings again during the Reagan administration in 1981, 1984, and 1985. In 1984 another filibuster prevented the adoption of a resolution of ratification. Instead, the Senate adopted a nonbinding sense of the Senate resolution in which it endorsed the principles affirmed in the convention and pledged to act expeditiously on it when the new Congress convened in 1985. The Senate did not actually adopt a resolution of ratification, however, until February 1986.
Throughout these years the Genocide Convention was the subject of intensely emotional debate that stimulated extraordinary action. Senator William Proxmire (D., Wisconsin), for example, unquestionably the leading proponent of ratification, spoke in its favor every day the Senate was in session from 1967 until the resolution of ratification was adopted in 1986— over three thousand speeches. In recognition of his important contributions to the ratification effort, the Senate Committee on the Judiciary decided that the Genocide Convention Implementation Act of 1988 would also be known as the Proxmire Act. On the other side, the most outspoken opponents of ratification were Senators Sam Ervin, Jr. (D., North Carolina), and Jesse Helms (R., North Carolina). They either engaged in, or threatened to engage in, filibusters to prevent ratification. Prominent individuals and organizations of various kinds also became involved in the controversy that surrounded the ratification effort. The debate, as we shall see in this book, was oftentimes characterized by profound concern among the most outspoken critics of the convention that it could be applied to race relations within the United States; that is, the convention could become a tool in the civil rights struggle. There was concern that the United States could be held accountable for genocide against groups like blacks and Native Americans. Although the resolution of ratification that was eventually adopted was supported by an overwhelming margin that cut across party and ideological lines, all eleven senators who voted against it were extremely conservative Republicans: Jeremiah Denton (Alabama), John East (North Carolina), Jake Garn (Utah), Barry Goldwater (Arizona), Charles Grassley (Iowa), Jesse Helms (North Carolina), James McClure (Idaho), William Roth (Delaware), Steven Symms (Idaho), Strom Thurmond (South Carolina), and Malcolm Wallop (Wyoming).
By the time the Senate adopted the resolution of ratification in February 1986, the Genocide Convention had been pending Senate action longer than any other treaty. Nonetheless, apart from a few studies that have focused on specific aspects of the controversy, we know relatively little about the issues and problems that arose in the debate over ratification of the convention, or how they were resolved. A study that provides a comprehensive analysis of these issues and problems, as this book aims to do, could be of broader interest and significance than for the insight and knowledge it would contribute regarding the struggle over the ratification of the Genocide Convention alone. It may also throw light on what we might expect should the Senate ever turn its attention to other international instruments of a similar nature. The Genocide Convention is, technically, an international criminal law convention, though it is commonly perceived to belong to the larger category of human rights instruments that have been adopted by the United Nations and other international organizations since World War II. A number of such instruments await Senate action, including the International Covenant on Civil and Political Rights, the Covenant on Economic, Social, and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination, and the American Convention on Human Rights. President Carter signed these instruments when he visited the United Nations and the Organization of American States in 1977, and he then transmitted them to the Senate and requested its advice and consent to their ratification. If experience with the Genocide Convention provides any insight into the likely fate of these instruments, and it probably does, they will remain in committee for many years to come.
Excerpted from The United States and the Genocide Convention by Lawrence J. LeBlanc. Copyright © 1991 Duke University Press. Excerpted by permission of Duke University Press.
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Table of Contents
Chapter 1 Introduction,
Part I The Rule: What Is Genocide?,
Chapter 2 Development of the Rule on Genocide,
Chapter 3 The Intent to Destroy Groups,
Chapter 4 Protected Groups and Political Groups,
Chapter 5 Genocidal Acts and Techniques,
Part II Rule-Supervision: Measures of Implementation,
Chapter 6 Domestic Implementing Legislation,
Chapter 7 An International Criminal Court,
Chapter 8 Jurisdiction of Domestic Courts and Extradition,
Chapter 9 The International Court of Justice,
Chapter 10 Conclusion,
Appendix A Convention on the Prevention and Punishment of the Crime of Genocide,
Appendix B Resolution of Ratification Proposed 1970, 1971, 1973, 1976, and 1984,
Appendix C Resolution of Ratification (Lugar-Helms-Hatch Sovereignty Package),
Appendix D The Genocide Convention Implementation Act of 1988 (the Proxmire Act),