Suppose President Carter sent a message to the Senate saying something like this. As part of the “human rights” policy of my Administration, I urge the Senate to ratify a treaty under which American citizens, under some circumstances, can be tried in an international or foreign court. In order to demonstrate our commitment to the United Nations and to cooperation with the Soviet Union, I feel that our citizens should be willing to give up, under some circumstances, their unique American constitutional guarantees such as the right not to be charged for a capital crime except after a grand jury indictment, the right to a speedy and public trial by an impartial jury in the state and district wherein the crime is alleged to have been committed, the privilege against self-incrimination, the protection against unreasonable searches and seizures, the writ of habeas corpus, and the right not to be denied life or liberty without due process of law.
President Carter didn’t say those things, of course. But he did send a message urging the Senate to ratify the UN Genocide Convention which would have that effect. This treaty would make American citizens subject to trial by an international court for the alleged crime of causing physical or even mental harm to a single member of any specified national, ethnic, racial, or religious group.
The terms of the Genocide Convention were drawn so as not to apply to the genocide regularly practiced by Communist regimes. The definition of genocide is limited to actions against “national, ethnical, racial, or religious groups.”
As originally written, the Genocide Convention also included actions against groups or members of a group on “political” grounds. But when the UN General Assembly adopted the Genocide Convention in 1948, the word “political” was stricken out to appease the Communists who insisted on preserving their right to liquidate their political opponents.
Since all Communist acts of genocide can be called “political,” they are thus exempt from the sanctions imposed by the Genocide Convention. As the late distinguished lawyer Alfred J. Schweppe once said: “The United States delegation consistently caved in on important matters of principle and, in order to get some kind of an agreement — any kind — abjectly acquiesced in a draft that is so faulty and confused that it does not prevent genocide where it regularly goes on (Czechoslovakia, Hungary, Poland, Africa, Asia), but in a welter of confusion, creates new international crimes that will make endless trouble for the United States.”
Mr. Schweppe charged that, when the crime of “mental harm” was put into the treaty, this opens the way “for a Pandora’s box of claims.”
In 1974 when the Genocide Convention was last debated, Senator Sam J. Ervin, Jr., said that it would, among other bad effects, nullify the Connally Reservation under which we reserved our right NOT to submit domestic issues, “as decided by the United States,” to the World Court.
The Genocide Convention would bind us to submit cases arising under it to the World Court “at the request of any of the parties to the dispute.”
The dangerous business of treaty ratification was best described by former Secretary of State John Foster Dulles. “Under our Constitution,” he said, “treaties become the supreme law of the land. They are indeed more Supreme than ordinary laws, for Congressional laws are invalid if they do not conform to the Constitution, whereas treaty laws can override the Constitution. Treaties … can cut across the rights given the people by the constitutional Bill of Rights.”
The Genocide Convention would not give any human rights to anyone, but it would take away constitutional rights from American citizens.
