Foreign Relations of the United States, 1949, The United Nations; The Western Hemisphere, Volume II

501.BB Human Rights/6–649

The Acting Secretary of State to the President

Washington, June 9, 1949.

The President: I have the honor to transmit to you a certified copy of the Convention on the Prevention and Punishment of the Crime of Genocide,¹ adopted unanimously by the General Assembly of the United Nations in Paris on December 9, 1948, with the recommendation that it be submitted to the Senate for its advice and consent to ratification.

The Convention defines genocide to mean certain acts, enumerated in Article II, committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. These acts are discussed below.

The basic purpose of the Convention is the prevention of the destruction of a human group as such. The first resolution of the General Assembly on this subject, 96 (I), adopted unanimously by the Members of the United Nations on December 11, 1946, succinctly pointed out that “Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings”. The resolution also pointed out that genocide shocks the conscience of mankind, results in great losses to humanity and is contrary to moral law. Of course, homicide also is shocking, results in losses to humanity and is contrary to moral law. The distinction between those two crimes, therefore, is not a difference in underlying moral principles, because in the case of both crimes, moral principles are equally outraged. The distinction is that in homicide, the individual is the victim; in genocide, it is the group.

The General Assembly declared in this resolution that the physical extermination of human groups, as such, is of such grave and legitimate international concern that civilized society is justified in branding genocide as a crime under international law. The extermination of entire human groups impairs the self preservation of civilization itself. The recent genocidal acts committed by the Nazi Government have placed heavy burdens and responsibilities on other countries, including our own. The millions of dollars spent by the United States alone on refugees, many of them victims of genocide, and the special immigration laws designed to take care of such unfortunates illustrate how genocide can deeply affect other states. On September 23, 1948, Secretary of State Marshall stated that “Governments which systematically disregard the rights of their own people are not likely to respect the rights of other nations and other people and are likely to seek their objectives by coercion and force in the international field.” It is not surprising, therefore, to find the General Assembly of the United Nations unanimously declaring that genocide is a matter of international concern.

Thus, the heart of the Convention is its recognition of the principle that the prevention and punishment of genocide requires international co-operation. However, the Convention does not substitute international responsibility for state responsibility. It leaves to states themselves the basic obligation to protect entire human groups in their right to live. On the other hand, it is designed to insure international liability where state responsibility has not been properly discharged.

The Convention was carefully drafted and, indeed, represents the culmination of more than two years of thoughtful consideration and treatment in the United Nations, as the following important steps in its formulation demonstrate:

The initial impetus came on November 2, 1946, when the delegations of Cuba, India, and Panama requested the Secretary-General of the United Nations to include in the agenda of the General Assembly an additional item: the prevention and punishment of the crime of genocide. The Assembly referred the item to its Sixth (Legal) Committee for study.

At its 55th plenary meeting on December 11, 1946, the Assembly adopted, without debate and unanimously, a draft resolution submitted by its Legal Committee. This resolution, referred to above, affirmed that “genocide is a crime under international law”. It recommended international co-operation with a view to facilitating the prevention and punishment of genocide, and, to this end, it requested the Economic and Social Council of the United Nations to undertake the necessary studies to draw up a draft convention on the crime.

Pursuant to this resolution a draft convention on genocide was prepared by the Ad Hoc Committee on Genocide in the Spring of 1948 under the chairmanship of the United States representative on this committee. This draft was again discussed by the Economic and Social Council in July and August 1948 in Geneva, and then in the Legal Committee of the General Assembly at its third regular session in Paris, where again the United States delegation played an important role in the formulation of the draft convention.

On December 9, 1948, the General Assembly unanimously adopted the convention to outlaw genocide, which was signed by the United States two days later. When signing, the United States representative, said, in part:

“I am privileged to sign this Convention on behalf of my Government, which has been proud to take an active part in the effort of the United Nations to bring this Convention into being.

“The Government of the United States considers this an event of great importance in the development of international law and of cooperation among States for the purpose of eliminating practices offensive to all civilized mankind.”

Genocide is a crime which has been perpetrated by man against man throughout history. Although man has always expressed his horror of this heinous crime, little or no action had been taken to prevent and punish it. The years immediately preceding World War II witnessed the most diabolically planned and executed series of genocidal acts ever before committed. This time there was to be more than mere condemnation. A feeling of general repulsion swept over the world, and following the war manifested itself in the General Assembly’s resolution of December 1946. It is this resolution to which the Legal Committee gave full content by providing the General Assembly with a legal instrument designed not only to prevent genocidal acts but also to punish the guilty.

The genocide convention contains nineteen articles. Of these, the first nine are of a substantive character, and the remaining ten are procedural in nature.

The Preamble is of a general and historical nature.

Article I carries into the Convention the concept, unanimously affirmed by the General Assembly in its 1946 resolution, that genocide is a crime under international law. In this article the Parties undertake to prevent and to punish the crime.

Article II specifies that any of the following five acts, if accompanied by the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, constitutes the crime of genocide:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group; and

(e) Forcibly transferring children of the group to another group.

This article, then, requires that there should be a specific intent to destroy a racial, religious, national or ethnical group as such in whole or in part. With respect to this article the United States representative on the Legal Committee said:

“I am not aware that anyone contends that the crime of genocide and the crime of homocide are one and the same thing. If an individual is murdered by another individual, or indeed by a government official of a State, a crime of homicide has been committed and a civilized community will punish it as such. Such an act of homocide would not in itself be an international crime. To repeat the opening language of the Resolution of the General Assembly of December 1946, ‘genocide is a denial of the right of existence of entire human groups’. This remains the principle on which we are proceeding.

“However, if an individual is murdered by another individual, or by a group, whether composed of private citizens or government officials, as part of a plan or with the intent to destroy one of the groups enumerated in Article 2, the international legal crime of genocide is committed as well as the municipal-law crime of homocide.”

The destruction of a group may be caused not only by killing. Bodily mutilation or disintegration of the mind caused by the imposition of stupefying drugs may destroy a group. So may sterilization of a group, as may the dispersal of its children.

Article III of the Convention specifies that five acts involving genocide shall be punishable. These five genocidal acts are:

(a) The crime of genocide itself;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide; and

(e) Complicity in genocide.

The Parties agree, in Article IV, to punish guilty persons, irrespective of their status.

In Article V the Parties undertake to enact, “in accordance with their respective constitutions”, the legislation necessary to implement the provisions of the convention. The Convention does not purport to require any Party to enact such legislation otherwise than in accordance with the country’s constitutional provisions.

Article VI makes it clear that any person charged with the commission of any of the five genocidal acts enumerated in Article III shall be tried by a court of the State in whose territory the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those states accepting such jurisdiction. Thus, the commission in American territory of genocidal acts would be tried only in American courts. No international tribunal is authorized to try anyone for the crime of genocide. Should such a tribunal be established, Senate advice and consent to United States ratification of any agreement establishing it would be necessary before such an agreement would be binding on the United States.

By Article VII the Parties agree to extradite, in accordance with their laws and treaties, persons accused of committing genocidal acts; none of such acts is to be considered a political crime for the purpose of extradition. The United States representative on the Legal Committee, in voting in favor of the convention on December 2, 1948, said:

“With respect to Article VII regarding extradition, I desire to state that until the Congress of the United States shall have enacted the necessary legislation to implement the Convention, it will not be possible for the Government of the United States to surrender a person accused of a crime not already extraditable under existing laws.”

Existing United States law provides for extradition only when there is a treaty therefor in force between the United States and the demanding government. Only after Congress has defined, and provided for the punishment of, the crime of genocide, and authorized surrender therefor, will it be possible to give effect to the provisions of Article VII.

Article VIII recognizes the right of any Party to call upon the organs of the United Nations for such action as may be appropriate under the Charter for the prevention and suppression of any of the acts enumerated in Article III. This article merely affirms the right of Members of the United Nations to call upon an organ of the United Nations in matters within its jurisdiction.

Article IX provides that disputes between the Parties relating to the interpretation, application or fulfillment of the Convention, including disputes relating to the responsibility of a state for any of the acts enumerated in Article III, shall be submitted to the International Court of Justice, when any Party to a dispute so requests.

On December 2, 1948, in voting in favor of the genocide convention, the representative of the United States made the following statement before the Legal Committee of the General Assembly:

“I wish that the following remarks be included in the record verbatim:

“Article IX provides that disputes between the contracting parties relating to the interpretation, application or fulfillment of the present Convention, ‘including those relating to the responsibility of a state for genocide or any of the other acts enumerated in Article III’, shall be submitted to the International Court of Justice. If ‘responsibility of a state’ is used in the traditional sense of responsibility to another state for injuries sustained by nationals of the complaining state in violation of principles of international law and similarly, if ‘fulfillment’ refers to disputes where interests of nationals of the complaining state are involved, these words would not appear to be objectionable. If, however, ‘responsibility of a state’ is not used in the traditional sense and if these words are intended to mean that a state can be held liable in damages for injury inflicted by it on its own nationals, this provision is objectionable and my Government makes a reservation with respect to such an interpretation.”

In view of this statement, I recommend that the Senate give its advice and consent to ratification of the Convention “with the understanding that Article IX shall be understood in the traditional sense of responsibility to another state for injuries sustained by nationals of the complaining state in violation of principles of international law, and shall not be understood as meaning that a state can be held liable in damages for injuries inflicted by it on its own nationals”.

The remaining articles are procedural in nature. By Article XIV the Convention is to be effective for an initial period of ten years from the date it enters into force, and thereafter for successive periods of five years with respect to those Parties which have not denounced the Convention by written notification to the Secretary-General of the United Nations at least six months before the expiration of the current period.

Article XV provides that if there are less than sixteen Parties to the Convention, as a result of denunciations, the Convention shall cease to be in force from the effective date of the denunciation which reduces the number of parties to less than sixteen.

Article XVI authorizes any Party to request revision of the Convention, by notification in writing to the Secretary-General of the United Nations. The General Assembly shall decide upon the steps, if any, to be taken in respect of such request.

It is my firm belief that the American people together with the other peoples of the world will hail United States ratification of this Convention as another concrete example of our repeatedly affirmed determination to make the United Nations the cornerstone of our foreign policy and a workable institution for international peace and security.

Respectfully Submitted,

James E. Webb

1. For text, see United Nations, Official Records of the General Assembly, Third Session, Part I, Resolutions, p. 174.