A Problem From Hell: America and the Age of Genocide (28 page)

Harold Koh was a twenty-nine-year-old lawyer at the U.S. Department of Justice. In 1984 he had supplied the Reagan administration with a fiftypage legal analysis on why the United States could ratify the genocide convention with few risks to U.S. citizens. He had never heard back from the White House. "There was zero interest in getting the Convention passed," Koh recalls. "Proxmire was the only man in town talking about it" When the Bitburg storm clouds burst, however, Koh received a panicked phone call from a National Security Council (NSC) staffer who said the president planned to push for immediate ratification of the genocide law. "l3itburg wasn't a reason for the shift," Koh says; "it was the only 1, aeon" Koh stayed up all night to prepare the press guidance and drove it personally to the White House, where the NSC official, a uniformed military officer, came out to receive it. That man, Koh later learned, was Lieutenant Colonel Oliver North. President Reagan had become determined to ,appease his critics by bullying the treaty through Congress.This gave the convention its best chance of passage since 1948.

At an April 16, 1985, news conference in New York, Elie Wiesel expresses his "deep anguish" over President Reagan's plan to visit the Bitburg cemetery. He is accompanied by leaders of Jewish and veterans' groups.

Through the years, many American presidents had supported the measure. But when Ronald Reagan did so sincerely, it undermined the longstanding Republican opposition on the Senate Foreign Relations Committee. "We couldn't have done it without Reagan," Proxmire says. "He cut the ground right out from under the right wing"

Reservations

Despite Reagan's support, the Republican critics of the convention did not disappear. They simply channeled their hostility in a different direction, stalling a full Senate vote and insisting upon a slew of conditions to U.S. ratification that they knew would weaken the treaty's force. Recognizing that President Reagan's support for the law made passage inevitable, Senators Jesse Helms (R.-N.C.), Orrin Hatch (R.-Utah), and Richard Lugar (R.-Ind.) introduced a stringent Senate "sovereignty package" that included "RUDs," or reservations, understandings, and declarations. These interpretations of and disclaimers about the genocide convention had the effect of immunizing the United States from being charged with genocide but in so doing they also rendered the U.S. ratification a symbolic act.

One reason advocates lobbied for U.S. ratification was to give the United States the legal standing to do what it had been unable to do during the Cambodia genocide: file genocide charges at the International Court of Justice. The convention's reference to the ICJ was typical of the dispute resolution procedures stipulated in more than eighty bilateral and multilateral treaties and international agreements. But in April 1984 Nicaragua had sued the United States at the ICJ for mining its harbors. When the court sided with Nicaragua and accepted jurisdiction, the United States walked out of the case. Neither the Republicans on the Senate Foreign Relations Committee nor the president was prepared to see the United States judged by an international court, so they now conditioned their acceptance of the genocide convention on a potent reservation, an a la carte "opt-out" clause. The reservation held that before the United States could be called as a party to any case before the ICJ, the president would have to consent to the court's jurisdiction. Only the United States would decide whether it would appear before the World Court. It was the equivalent of requiring an accused murderer to give his consent before he could be tried. If the convention stood any chance of resembling, in John Austin's phrase, "law, properly so-called," states had to give the ICJ advance consent so that judges would be empowered to interpret and apply the genocide convention independently, without requesting a state's permission each time.

The legal consequence of the U.S. reservation was that if the United States henceforth suspected that another state was committing genocide and attempted to bring the matter before the ICJ, the accused country could assert the American reservation against the United States under something called the doctrine of reciprocity. The United States was effectively blocked from ever filing genocide charges at the court against perpetrator states."' Proxmire battled against the reservations in the same way he had fought on behalf of the convention. He took to the familiar floor, spelling out the consequences of the American position:

Under this reservation, the Pol Pots [and] the Idi Amins ... could escape any efforts we would make to bring them before the Court to account for their actions. Why? Because under international law, they could invoke our reservation against us. If we get to decide which cases go before the Court, so do they. It is that simple.

If this treaty had been drafted and signed before World War II, would Senator Helms and Lugar argue that Hitler should choose which cases go before the World Court? Does anyone in this Chamber really believe that? I doubt it.'

Proxmire got strong support from Senator Pell, who, along with seven other senators, prepared a detailed critique of the reservations. "The [sovereignty] package as a whole taints the political and moral prestige that the United States would otherwise gain by ratification of this landmark in international law," Pell's report noted. The United States was "defensively embracing a shield that to date has largely been adopted only by countries that may well have reason to fear charges of genocide."="

The Senate Foreign Relations Committee split largely along party lines. Nine Republicans and one Democrat voted for the treaty with the reservations; the eight remaining Democrats protested by voting only "present" One of the few avenues the genocide convention created for enforcement would remain completely off-limits to the United States.

On February 11, 1986, Senator Dole brought up the U.S. version of the genocide treaty for a full Senate vote, declaring, "We have waited long enough ... as a nation which enshrines human dignity and freedom.... We must correct our anomalous position on this basic rights issue."z" A week later, thirty-eight years since the unanimous UN General Assembly passage of the law and thirty-seven years after President Truman had requested the Senate's "advice and consent," the Senate finally and overwhelmingly adopted a ratification resolution-eighty-three in favor, eleven against, and six not voting. Ninety-seven nations had ratified the convention ahead of the United States.

Senate supporters gave credit where they believed it was due. Patrick Moynihan (D.-N.Y.) likened Proxmire's struggle to that of Lemkin and thanked him for an effort that was "without parallel" in the history of the U.S. Senate:

For 15 years [sic],William Proxmire has asked this body to do what in conscience it ought to have done nearly 40 years ago.... When it was not adopted immediately, the man who coined the word "genocide," Mr. Raphael Lemkin ... made it his business.... He succeeded in bringing about the adoption by the general assembly of the convention, and then he saw the Senate of his own country, his newly adopted country, refuse to agree to ratification. It broke his heart. He died alone and in poverty, and uncomprehending that we could not ratify the treaty. Indeed, we never would have done so were it not for the advent of William Proxmire in this body, who is a kind of person who says if something is worth doing, it does not matter to him that it takes 15 years to do it.

I would like to salute the Senator, and say to him that he has enlarged the quality of this body, and certainly has made this Senator prouder still to be a Member of it."'

Proxmire had in fact been speaking daily for nineteen years, or 3,211 times. When we break down this figure into a year-by-year tally, the numbers are daunting. The following table illustrates the number of speeches the senator gave each year.

Senators who had opposed the convention throughout its tortured floor history applauded the reservations that had so eviscerated U.S. ratification of the treaty. Senator Helms, who would later warn that the 1998 treaty to create an International Criminal Court to prosecute perpetrators of genocide, war crimes, and crimes against humanity would be "dead on arrival" at the U.S. Senate, voted with eleven others against even the watered-down ratification package. Yet he applauded its toothlessness. Thanks to the reservations, he claimed, "the sovereignty of our Nation and the freedom of our people have been protected against assault by the World Court." He said, "We might as well be voting on a simple resolution to condemn genocide-which every civilized person does""

Some on Proxmire's staff were relieved. Howard Schumann, the senator's chief of staff, who worked for the senator for twenty-seven years, recalls his sense of gratification in 1988. "We worked so long-it felt like we were watching paint dry all those years," Schumann says. "When ratification finally came, it was a great event, like the birth of a first child." But for the staffer most intimate with the law, the victory was as bitter as it was sweet. Larry Patton had devoted a decade and a half of his life to meeting the legal objections, and he found the triumph tainted because the version that actually survived the committee was not the one he had fought for. "We lost the reservations fight," Patton remembers. "I thought that they took away one of the few mechanisms in place to make the Convention effective." Still, the Proxmire team decided to accept and support the flawed ratification resolution. "At least as a state that had finally ratified the law," Patton says, "we could henceforth use our diplomacy to denounce genocide and maybe even stop it."

Remarkably, though it seemed the long struggle was over, Senate critics continued to stall. Full ratification required the passage of "Implementing legislation" that would make genocide a crime under U.S. federal law. The months passed, and Proxmire grew angry as the treaty lay fallow. "Why do I rise today to speak on this subject?" Proxmire asked in February 1988."I rise because it is now two years since the Senate of the United States by an overwhelming 82 to 11 vote ratified the Genocide Convention. In that two-year period the Congress has failed to finish the job. This is incredible. In fact, it is a disgrace to this U.S. Senate" Proxmire noted that the implementing legislation had been drafted and the respective chairmen of the House and Senate Judiciary Committees had introduced the measure, but no hearings had followed. Indeed, Proxmire said he had heard "not a whisper indicating any concern or any action."The irony was bitter.The genocide convention had finally earned Reagan's sincere support in 1985. It had won the overwhelming backing of the Senate in 1986. And here it was 1988, and, in Proxmire's words, the Congress had gone "sound to sleep": "We should take a special international prize for gross hypocrisy. The Senate resoundingly passes the ratification of the Genocide Treaty. We thereby tell the world that we recognize this terrible crime. Then, what do we do about it? We do nothing about it. We speak loudly but carry no stick at all." 12

It was not until October 1988 that the Senate got around to passing the Genocide Convention Implementation Act, which was named the "Proxmire Act"The U.S. law made genocide punishable in the United States by life imprisonment and fines of up to $1 million. It passed only after Strom Thurmond (R.-S. Car.), a longtime opponent of the convention, gave up on his insistence that the death penalty be required. Thurmond dropped his objection only in exchange for the confirmation of Republican judges whose appointments had been stalled in the Senate Judiciary Committee.

President Reagan signed the implementing legislation in Chicago, credited Lemkin for his role, and declared, "We finally close the circle today. I am delighted to fulfill the promise made by Harry Truman to all the people of the world-and especially to the Jewish people."" Proxmire says he was not invited to the signing.

The sovereignty package revealed a go-it-alone approach to treaty ratification and a hostility to international law that was not new, but that rubbed U.S. allies the wrong way. By December 1989, nine European countries (Denmark, Finland, Ireland, Italy, the Netherlands, Norway, Spain, Sweden, and the United Kingdom) had filed formal objections to several of the conditions the United States included in its ratification resolution.