was adopted by the United Nations General Assembly on December 9, 1948, follow:

Perhaps most fundamentally, it has been argued that genocide is not a proper subject for treatymaking and is essentially a subject within the domestic jurisdiction of states. But I believe it is generally accepted that genocide is a proper subject for the treaty power. As this committee pointed out in its most recent report on the convention, some 83 nations are now parties to this convention, and clearly these nations believe genocide is properly a subject of international concern. In addition, the United States is a party to other human rights treaties, including those on slavery and refugees. Most recently the Senate approved by 88-0 two treaties on the political rights of women. The day is past when it could be seriously contended that human rights are not appropriately the subject of international agreements. As President Carter said in his speech to the United Nations two months ago:

All the signatories of the United Nations Charter have pledged themselves to observe and to respect basic human rights. Thus, no member of the United Nations can claim that mistreatment of its citizens is solely its own business.*

It has also been charged that certain of the key terms of the convention are vague. But the understandings which are attached by the committee to the resolution of ratification that this committee has previously proposed, and also the draft implementing legislation, are both designed to define more precisely the meaning of such terms as "mental harm” and the phrase "intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such."

It has been said that the proscription in article III of the convention against direct and public incitement to commit genocide is a restriction on free speech. But direct and public incitement to crime is not protected by the constitutional guarantee of free speech. As this committee heard in 1970 from William Rehnquist, now Associate Justice of the Supreme Court and at that time an Assistant Attorney General, the constitutional guarantee of free speech would not be and could not be adversely affected in any way by the terms of the convention. In 1969, in the case of Brandenburg v. Ohio, 395 U.S. 444 [1968], the Supreme Court reaffirmed that even advocacy of force is protected unless it is directed to inciting lawless action and is likely to produce it.

It has also been asked whether state law will be overridden by the terms of the convention. However, nothing in the convention overrides state law. The proposed implementing legislation, if enacted, would expressly clarify that Congress does not intend to occupy the field and would confirm that state laws not inconsistent with the legislation are not invalidated.

Question has been raised as to whether the convention will enlarge the powers of the Congress. Once again neither the convention nor

*For the complete text of President Carter's address to the United Nations on March 17, see Bulletin of April 11, 1977, p. 329.

the implementing legislation contain any provisions which could have such an effect. Certainly the Congress can legislate the crime of genocide even without the convention. Under article I, section 8, clause 10 of the Constitution, the Congress is empowered "to define and punish . . . offenses against the law of nations." Approval of the convention will require the Congress to exercise powers it already possesses but does not enlarge those powers.

It has been suggested that if the United States adheres to the convention, we will be confronted with spurious charges of genocide arising out of racial and religious discrimination. It also has been asked whether wartime combat might result in charges of genocide made by our opponents. Loose charges of genocide are not valid under the terms of the convention, which requires the intent to destroy an entire group. This is a critical and essential element. The requirement of intent to destroy a group as such distinguishes killing or wounding in combat from genocide.

There has also been some discussion about possible use of international tribunals to punish defendants. It has been said that the International Court of Justice, referred to in article IX of the convention, would become a forum for trial. But of course neither the International Court nor any other international tribunal has criminal jurisdiction and no such trial is possible.

As for the international penal tribunal referred to in article VI of the convention, the United States has no obligation to become a party to the statute of any such tribunal should it ever be established. For the United States to accept the jurisdiction of an international penal tribunal, an exercise of the treaty power would be required, and the advice and consent of the Senate by a two-thirds vote would be necessary.

I want to address the question of extradition, in view of some complexities involved and in order to allay any misunderstandings. Article VII of the convention provides that the parties pledge to grant extradition of persons charged with genocide "in accordance with their laws and treaties in force" and provides that there is no defense to extradition on the ground that genocide may be a "political" crime.

Concern has been expressed that American citizens could be extradited for trial in foreign countries where the legal system does not provide for the kinds of guarantees to criminal defendants available in the United States. There are several points to be made in response.

First, U.S. law provides for extradition only where there is an extradition treaty in force which covers the crime in question, but the genocide convention is not an extradition treaty. The convention simply contemplates that the crime of genocide will be added to the list of crimes for which Americans will be extraditable under any new extradition treaties we might conclude, or in any existing extradition treaties we may revise. At the present time, genocide is not listed as an extraditable offense in any of our extradition treaties. Second, the United States does not negotiate extradition treaties with nations which do not permit defendants a fair trial. The possibility of a fair trial, even though the standards cannot be expected

to match ours in every detail, is always a factor taken into account in deciding whether to negotiate an extradition treaty.

In addition, since these treaties may remain in force for many years, during which time the judicial system of the foreign country may change, certain procedural safeguards are built into our extradition treaties. Such treaties require that the state requesting extradition must produce evidence of the crime sufficient to persuade a U.S. court and the executive branch that the person whose extradition is requested would also be held for trial in the United States had the alleged crime been committed in this country.

Further, our extradition treaties provide that extradition will not be granted if the person sought has already had a trial or is undergoing a trial in the United States for the same act.

Article VI of the convention provides that persons charged with genocide are to be tried by a competent tribunal of the state in the territory in which the act was committed. But the negotiating history of the convention makes it abundantly clear that trial may also occur in the country of which the defendant is a national. The third understanding attached by the committee to the proposed resolution of ratification makes this point as well, and it is further spelled out in the implementing legislation.

Moreover, section 3 of the draft implementing legislation sets forth the sense of the Congress that the Secretary of State, in negotiating extradition treaties, is to reserve for the United States the right to refuse extradition of a U.S. national to a foreign country to stand trial on a charge of genocide if the United States intends to exercise jurisdiction in the case or the defendant has been or is being prosecuted for the offense in the United States. In brief, the United States may always elect to try a U.S. national and thus refuse extradition, no matter where the alleged crime had been committed.

There is one very positive legal aspect of this matter that I believe has not received the attention it deserves and that is the place of the genocide convention in the development of an emerging concept of international crimes, a concept that serves the interests of the United States and the world community. As you know, we are a party to a number of criminal law treaties, including the laws of war conventions, the treaties on aircraft hijacking and sabotage, the convention on the protection of diplomats, and treaties on narcotics trade, oil pollution, and others. Piracy has long been prohibited by international criminal law. We have also introduced at the United Nations a treaty on terrorism. And, of course, these criminal law treaties to which we are a party, like the genocide convention and piracy charges, rely on our own court system for their enforcement.

In brief, we are a party to and we are in the process of developing a body of international criminal law that is important to the United States and to a peaceful world order. The genocide convention is one of the missing pieces in U.S. adherence to such a pattern of international criminal standards, and it is my hope that this situation will be corrected. As this committee stated in its 1976 report on the genocide convention, what is really at issue is an attempt of a civilized society to curb the excesses of mankind and to set a higher standard of international morality.

76 Dept. of State Bulletin 678-679 (1977).

The Inter-American Convention on the Granting of Political Rights to Women was done on May 2, 1948 (TIAS 8365; entered into force for the United States on May 24, 1976).

The Convention on the Political Rights of Women was done on Mar. 31, 1953 (TIAS 8289; 193 UNTS 135; entered into force for the United States on July 7, 1976).

The Geneva Convention Relative to the Treatment of Prisoners of War was done on Aug. 12, 1949 (TIAS 3364; 6 UST 3316; 75 UNTS 135; entered into force for the United States on Feb. 2, 1956, subject to a statement).

The Convention Relative to the Protection of Civilian Persons in Time of War is dated Aug. 12, 1949 (TIAS 3365; 6 UST 3516; 75 UNTS 287; entered into force for the United States on Feb. 2, 1956, subject to a reservation and a statement).

The Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, is dated Aug. 12, 1949 (TIAS 3362; 6 UST 3114; 75 UNTS 31; entered into force for the United States on Feb. 2, 1956, subject to a reservation and statement).

The Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea is dated Aug. 12, 1949 (TIAS 3363; 6 UST 3217; 75 UNTS 85; entered into force for the United States on Feb. 2, 1956, subject to a statement).

The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Sabotage) was done at Montreal on Sept. 23, 1971 (TIAS 7570; 24 UST 564; entered into force for the United States on Jan. 26, 1973).

The Convention for the Suppression of Unlawful Seizure of Aircraft (Hijacking) was done at The Hague on Dec. 16, 1970 (TIAS 7192; 22 UST 1641; entered into force for the United States on Oct. 14, 1971).

The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, was adopted by the U.N. General Assembly on Dec. 14, 1973 (TIAS 8532; entered into force for the United States on Feb. 20, 1977).

The Single Convention on Narcotic Drugs was done on Mar. 30, 1961 (TIAS 6298; 18 UST 1407; 520 UNTS 204; entered into force for the United States on June 24, 1967).

The International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties was done on Nov. 29, 1969 (TIAS 8068; 26 UST 765; entered into force on May 6, 1975).

International Terrorism

On January 26, 1977, the U.S. Senate passed by a vote of 93 in favor and none opposed Senate Resolution 48, entitled "A resolution with respect to the release of Abu Daoud," which reads as follows:

Resolved, That it is the sense of the Senate that the release of Abu Daoud, a known terrorist who is accused of planning the murder of Olympic athletes in Munich in 1972, is harmful to the efforts of the community of nations to stamp out international terrorism.

SEC. 2. It is further the sense of the Senate that United States should consult promptly with France and other friendly nations to seek ways to prevent a recurrence of a situation in which a terrorist

leader is released from detention without facing pending criminal charges in a court of law.

SEC. 3. The Secretary of the Senate is directed to provide a copy of this resolution to the Secretary of State for transmission to the Government of France.

123 Cong. Rec. S 1535 (daily ed. Jan. 26, 1977).

During the debate on January 26, 1977, concerning Senate Resolution 48, Senator Abraham A. Ribicoff inserted into the Record of the Senate an article printed in the January 15, 1977, edition of the London Economist:

Six days ahead of his scheduled hearing, he was summoned by the Paris appeals court on Tuesday morning [January 11, 1977] for an inquiry into his detention. First, the court disposed of an international arrest warrant which had been sent by the West German authorities as an initial ground for holding the prisoner. Since this had not been validated by extradition papers sent through formal diplomatic channels, the court suggested, it had no standing. It then quashed the Israeli case. France, the court said, could not handle a request involving a non-Israeli citizen suspected of committing a crime in West Germany in 1972. It was only in 1975 that France acquired a law permitting it to pursue such crimes. Almost without argument, Abu Daoud was set free to board a plane for Algiers.

123 Cong. Rec. S 1535 (daily ed. Jan. 26, 1977).

On January 11, the day of the release of Abu Daoud, John H. Trattner, Deputy Director of the Office of Press Relations, Department of State, when asked during the daily news briefing about the reported decision of the French court, stated:

[O]ur reaction . . . is one of dismay-dismay that through an apparent legal technicality neither West German nor Israeli courts will be given the opportunity to interrogate... this man about the brutal and revolting murder of athletes in Munich. Our dismay reflects our abhorrence . . . over the brutal and mindless murders at Munich . . . and our strong conviction that terrorists should be dealt with sternly and firmly by the legal authorities of all countries.

Dept. of State News Briefing, DPC 250, Jan. 11, 1977.

On the following day, January 12, Robert L. Funseth, Special Assistant to the Secretary of State for Press Relations and Spokesman of the Department of State, confirmed that Secretary Kissinger had described the action of the French Government as "outrageous."

Dept. of State News Briefing, DPC 251, Jan. 12, 1977.

On May 9, 1977, Senator Jacob K. Javits introduced into the Congressional Record an exchange of letters he had initiated with the De