67. Action Memorandum From the Assistant Secretary of State for Human Rights and Humanitarian Affairs (Abrams), the Legal Adviser of the Department of State (Robinson), the Coordinator of Refugee Affairs (Douglas), and the Assistant Secretary of State for International Organization Affairs (Newell) to Secretary of State Shultz 1
SUBJECT
- Convention on the Prevention and Punishment of the Crime of Genocide
ISSUE FOR DECISION
What position you should recommend to the White House on the Genocide Convention. (Tab 1)2
ESSENTIAL FACTORS
The Genocide Convention defines the act of genocide, confirms that it is a crime under international law which may be prosecuted in an international penal tribunal, obliges States Parties to enact legislation to make genocide a crime under national law, and specifies that genocide shall not be considered a political offense for the purpose of extradition. The Convention also provides that disputes relating to its interpretation, application or fulfillment shall be submitted to the International Court of Justice.
[Page 211]President Truman sent the Convention to the Senate for its advice and consent to ratification in 1949 and it has remained pending in the Senate ever since. More recently Presidents Nixon, Ford and Carter endorsed the Convention. On several occasions, the Senate Foreign Relations Committee has favorably reported out the Convention,3 but the Senate has not given its advice and consent to ratification of the treaty for a number of reasons including: the initial American Bar Association (ABA) opposition (although the ABA has supported adherence since 1976), initial Senate doubt whether genocide was a proper subject of the treaty making power, and the strenuous opposition of many conservatives on constitutional and other grounds.
The Genocide Convention has been under Departmental review since the beginning of this Administration, and it has become increasingly difficult to continue to claim that it is still under study. After having reviewed the legal and policy issues related to the Convention, all bureaus agree that we should not recommend against its ratification. However, the issue remains whether and on what basis the Administration should endorse its ratification. Informal soundings by HA indicate that the White House would expect the Department to take the lead in managing the Administration’s posture with the Senate.
We will prepare a memorandum to the President based on the option which you select.
ANALYSIS OF OPTIONS
Option 1: Administration Support for the Convention and Proposal of Two Reservations
HA, IO, S/R and H believe that the Senate will not give its advice and consent to ratification of the Genocide Convention without reservations. On the other hand, based on HA’s preliminary soundings on the Hill, HA, IO, S/R and H believe that the Senate could give its advice and consent if the Administration supports two specific reservations dealing with extradition and the International Court of Justice, respectively. (Tab 2)4
HA, IO, S/R and H also believe that if the Administration proposes these two reservations, obtaining Senate advice and consent will only require moderate involvement by the President and high level Department officials because many conservatives among the President’s supporters (although not Senators Helms and Thurmond) who oppose the [Page 212] Convention may well be mollified by the reservations. HA’s soundings also indicate that traditional supporters of the Convention would have little difficulty with the proposed reservations.
In the Convention’s long history, a number of objections to it have been raised in the Senate, in addition to the extradition and ICJ questions addressed by the two proposed reservations. In L’s view, shared by the Department of Justice, the legal and constitutional issues raised in the past have not been well-founded; nevertheless, they may resurface. We intend to try to deflect them by proposing reservations which would demonstrate our willingness to anticipate and deal sensibly with concerns on extradition and the ICJ that have previously been raised.
Option 2: Administration Support for the Convention Without Proposing Reservations
Given the large number of objections to the Convention that have been raised in the past, it may be advisable for the Administration not to propose reservations at the time it expresses support for the Convention. Instead, the Administration, while supporting ratification of the Convention, could note that a number of objections have been raised about the Convention and could express a serious intent to give full consideration to any reservations that members of the Senate may consider necessary in order to give their advice and consent. By demonstrating recognition of the need to accommodate their views, this approach might blunt some negative reactions from the President’s supporters who now oppose the Convention, although it might also be interpreted as an invitation to critics of the Convention to deluge it with reservations. Nonetheless, this approach could be portrayed to supporters as a serious effort to secure ratification as opposed to the sort of posturing in which past Administrations have engaged. In addition, it would allow the President and high ranking Department officers more flexibility in deciding how visible they would be in the process.
Option 3: Maintain the Status Quo
From time to time, the White House and the Department receive inquiries from members of Congress and the public concerning our stance on the Convention. H notes that despite occasional inquiries, there is no noticeable Congressional pressure for ratification. In addition, each January, the Senate Foreign Relations Committee requests an official statement of the Administration’s views on each treaty still pending with the Senate. In each case, this Administration has replied that the Convention and other “human rights” treaties are “under review.” Maintenance of this posture is increasingly awkward, although it does avoid potential conflict with Administration supporters who have opposed the Convention and would not be mollified by reservations.
[Page 213]Bureau Views:
HA and IO strongly support Option 1 because they believe that indicating support for the Convention without putting forward specific reservations would not be successful either in blunting conservative opposition or obtaining Senate advice and consent to the Convention. S/R and L would support either Option 1 or Option 2. H sees no compelling Congressional reason to alter the Administration’s stance with respect to the Convention. However, if for other than Congressional reasons the Department wishes to go forward, H supports Option 1.
RECOMMENDATIONS
That you recommend to the White House:
Option 1: Administration support of the Convention and the proposal of two reservations.5
Option 2: Administration support of the Convention without proposing reservations.
Option 3: Maintain the status quo.
- Source: Department of State, Assistant Secretary Files—Elliott Abrams Subject and CHRON Files, 1981–1987, Lot 89D184, Correspondence: March 1984. Confidential. Drafted by Surena and Burke on November 23 and cleared in L and H. Sent through Dam. A stamped notation on the memorandum indicates that Shultz saw it.↩
- Not attached. See United Nations Treaty Series, “Convention on the Prevention and Punishment of the Crime of Genocide,” vol. 278, p. 1951 (accessed online).↩
- The Senate Foreign Relations Committee reported out the Convention in 1970, 1971, 1973, 1976, and 1978.↩
- Not found.↩
- Shultz approved option 1 on December 5.↩