dwkcommentaries

On December 11, 1946, the United Nations General Assembly in its first session unanimously adopted a resolution affirming that “genocide is a crime under international law which the civilized world condemns” and requesting the U.N. Economic and Social Council “to undertake the necessary studies, with a view to drawing up a draft convention [treaty] on the crime of genocide.”

Thereafter that Council established a U.N. Committee on Genocide to prepare a draft of such a treaty. The draft that subsequently was approved by that Committee and other U.N. agencies had been prepared at the U.S. Department of State by a U.S. diplomat, John Maktos, who also served as the Chair of the U.N. Committee.

On December 9, 1948, by unanimous action of the U.N. General Assembly that draft was adopted as the Genocide Convention. Two days later (December 11th) President Harry Truman signed the treaty on behalf of the United States.

Six months later (June 16, 1949) President Truman transmitted the treaty to the U.S. Senate and requested its advice and consent to ratification. In his transmittal message, President Truman said the General Assembly’s approval of the treaty was “one of the important achievements” of its first session and that the U.S. had played “a leading part” in that accomplishment. The Senate’s approval would demonstrate that the U.S. was “prepared to take effective action on its part to contribute to the establishment of principles of law and justice.”

Such Senate action, however, did not happen until early 1986, and it was not ratified by the U.S. until late 1988 or nearly 40 years after its adoption by the U.N. General Assembly and its signature by the U.S.[1]

Here are some of the highlights or lowlights of the Genocide Convention’s journey to U.S. ratification.

In January and February of 1950 a subcommittee of the Senate Foreign Relations Committee held hearings on the treaty and favorably reported it to the full Committee in May 1950. The full Committee, however, took no action on the treaty, and it did not reach the Senate floor. For the next 20 years the treaty apparently gathered dust in the files of the Foreign Relations Committee.

That changed on February 19, 1970, when President Richard Nixon reiterated a presidential request for Senate advice and consent to ratification. His message to the Senate stated that the U.S. had “played a leading role in the negotiation” of the treaty and that “ratification at this time . . . would be in the national interest” of the U.S. and would demonstrate “our country’s desire to participate in the building of international order based on law and justice.”

In response to President Nixon’s request, the Senate Foreign Relations Committee in 1970 held hearings on the treaty and favorably reported the treaty to the entire Senate. The latter, however, took no action.

The Foreign Relations Committee did the same in 1971, 1973, 1976 and 1978, but it was not until February 19, 1986, that the Senate voted, 83 to 11, to give its advice and consent to such ratification.[2]   It did so with two reservations that required specific U.S. consent for the submission of any dispute involving the treaty to the International Court of Justice and that stated the supremacy of the U.S. Constitution over any of the treaty’s provisions. The Senate also imposed five understandings limiting the meaning of certain parts of the treaty. Finally the Senate declared that the instrument of U.S. ratification could not be deposited until after the U.S. adopted implementing legislation required by Article V of the treaty.[3]

That implementing legislation was adopted on November 4, 1988, with President Ronald Reagan’s signature of the Genocide Implementation Act of 1987, 18 U.S.C. § 1091. That statue makes genocide a crime for offenses committed within the U.S. or by U.S. nationals. The statute imposes punishment of life imprisonment and a fine of not more than $1 million or both for genocide by killing; imprisonment up to 20 years or a fine of not more than $1 million or both for other acts of genocide; and imprisonment up to five years or a fine up to $500,000 or both for incitement of genocide. There is no statute of limitations for these crimes.

When President Reagan signed the statute, he made a public statement that by this signing the U.S. would “bear witness to the past and learn from its awful example, and to make sure that we’re not condemned to relive its crimes. . . . During the Second World War, mankind witnessed the most heinous of crimes: the Holocaust.” Reagan added that he was “delighted to fulfill the promise made by Harry Truman to all the peoples of the world, and especially the Jewish people. I remember what the Holocaust meant to me as I watched the films of the death camps after the Nazi defeat in World War II. Slavs, Gypsies, and others died in the fires, as well. And we’ve seen other horrors this century — in the Ukraine, in Cambodia, in Ethiopia. They only renew our rage and righteous fury, and make this moment all the more significant for me and all Americans.”

Reagan concluded by saying that the “timing of the enactment is particularly fitting, for we’re commemorating a week of remembrance of the Kristallnacht, the infamous ‘night of broken glass,’ which occurred 50 years ago on November 9, 1938. That night, Nazis in Germany and Austria conducted a pogrom against the Jewish people. By the morning of November 10th, scores of Jews were dead, hundreds bleeding, shops and homes in ruins, and synagogues defiled and debased. And that was the night that began the Holocaust, the night that should have alerted the world of the gruesome design of the Final Solution.”

On November 25, 1988 (three weeks after the adoption of that federal statute), President Ronald Reagan deposited notice of U.S. ratification with the U.N. Secretary-General. This constitutes the actual act of ratification.[4]

The 40 year delay between U.S. signing and ratification apparently was the result of many factors. Many Senators were hostile to approving any treaty that might be deemed to infringe on U.S. sovereignty. Some were concerned, especially during the Korean War and the Vietnam War, that U.S. officials might come under frivolous accusations of genocide. Others worried that if the U.S. ratified, it would be obligated to send military forces to distant countries to enforce it. Others felt the Convention’s definition of genocide was unclear. The American Bar Association opposed it through 1977. Some Southern Senators were concerned that genocide charges might result from the region’s history of segregation, lynching, and Ku Klux Klan activities. In addition, although the treaty was not retroactive, some feared it would be used to define the nineteenth century U.S. treatment of Native Americans as genocide.[5]

The Genocide Convention went into force on January 12, 1951, after 20 states had ratified or acceded to the treaty. Today 142 states are parties thereto.

This tale of the belated U.S. ratification of an important multilateral human rights treaty shows the complexity of the negotiation and adoption of such treaties and of their ratification by the U.S.  There is a similar history of the U.S. ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.