73. 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). 74. 75. 354 U.S. 1, 18. Justice Powell's recent pre Id., at 44 (Frankfurter, J., concurring). 76. Quoted by Tananbaum, The Bricker Amendment Controversy: Its Origins and 77. 78. Reid v. Covert, 354 U.S. 1, 50 (Frankfurter, J., concurring). 81. Letter to James Madison, Dec. 20, 1787, in THE PORTABLE THOMAS JEFFERSON 429 (M.D. Peterson ed. 1977). 89. 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 I.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 Norms of 103. Recent proponents of the Convention appear to emphasize the symbolic 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. 4-761 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 Article III Article III definitely imposes strict liability with respect to its enumerated acts. Once again genocide is specified in category (a) as a punishable act, without listing its substantive elements. Category (b) likewise does not contain a legal definition of conspiracy, nor does it indicate whether conspiracy or the other inchoate and complicitous crimes are to be considered lesser included offenses or independent criminality in their own right. Category (c) is in direct conflict with the First Amendment and the holding in Brandenburg v. Ohio (1969), wherein the U.S. Supreme Court distinguished between mere advocacy (as clearly proscribed in the Convention) and the "incitement to imminent lawless action. [395 U.S. 447, 449] Under this category, the controversial rulings of the federal trial and appellate courts in the Skokie Nazi Party case [Colin v. Smith, 578 F. 2d 1197 (7th Cir. 1978)] would have been rendered null and void. The Nazis would have been liable for "[d]irect and public incitement", and the federal judges themselves would have been subject to a charge of complicity (see discussion infra). Clever lawyers could immobilize the judiciary under various provisions of the Genocide Convention. Category (d) does not indicate when an incompleted act becomes attempt, nor does it acknowledge the defense of impossibility. Category (e) does not state the constitutive elements of complicity. In fact, it makes no distinction between complicity and the completed crime. All of the crimes mentioned in association with genocide carry the same degree of culpability and apparently require the same kind of punishment, which is violative of the basic principles of Anglo-American criminal law. [See R.M. PERKINS & R.N. BOYCE, CRIMINAL LAW 1-20 (3rd ed. 1982)] Article IV The basic assumption of this Article is that individuals commit genocide, when, actually, only states or governments can perpetrate that odious barbarism. All government officials are stripped of immunity from liability when a genocide complaint is filed in a domestic forum. There is to be no legislative, executive, or judicial immunity from charges involving genocidal acts and related crimes. Thus, the Congress, the Executive Branch, and the Courts are subject to process and punishment. No court will therefore be judgment proof from the effect of its own decisions, and no legislator speaking on the floor of any legislative house will be immune from prosecution. The call for punishment in all cases eliminates constitutional protections such as the presumption of innocence, the reasonable doubt standard, freedom from self-incrimination, the right to confront one's accusers, the right to a public trial, and the right to an attorney, among others. Article V Proponents of the Genocide Convention argue that this particular provision means that the document is not self-executing, but their view is undercut by the mandatory language of this Article, and the preceding one, on penalties and punishment. There is no explanation of what "effective penalties" might be, nor is there any distinction made once again between the act of genocide and the inchoate criminality plus complicity attached thereto. Here, as in the preceding Articles, there is a definite failure to recognize the dual nature of sovereignty as it has historically and juridically existed between the states and the federal. government in the American constitutional system. The principle of concurrent criminal jurisdiction is severely disrupted, wherein "each state, with certain limitations, has the powers of a nation." [PERKINS & BOYCE, at 42). Article VI A combination of this Article, along with the content of Article IV, may compel the United States to subject visiting heads of state, government officials, even accredited diplomats to arrest and extradition for alleged crimes of genocide as charged by other states parties. Especially vulnerable would be South African, Israeli, and British dignitaries and diplomatic personnel. The provision for an international penal tribunal to try crimes of genocide is a ticking bomb waiting to go off. This makes U.S. officials subject to charges and process outside of the United States for alleged genocidal acts. (Nicaraguan President Daniel Ortega accused the United States of the crime of genocide in a speech before the U.N. General Assembly). There is no guarantee of due process in connection with this potential international tribunal. In fact, "international law does not prescribe general rules for such proceedings concerning burden of proof, right to be confronted with evidence, public hearing, or judicial |