03 Sep Judge Roberts and the Genocide Convention
The Washington Post has a curious article today detailing Judge Roberts’ doubts (but ultimate support) for U.S. ratification of the Convention Against Genocide during the Reagan Administration. The description of the memo is more evidence that, at least with respect to Judge Roberts’ views on international law, Judge Roberts’ opponents have very little to criticize. The memo simply noted that opponents worried that:
the treaty “internationalizes” criminal law, that it could force Americans to stand before an international tribunal, that violent nations would ignore the treaty while hostile ones could use it for “propaganda” purposes, forcing the United States to go before the tribunal because of its actions in Vietnam or other countries.
“These objections are not unfounded,” Roberts wrote. But he added that “a consensus has evolved that they are outweighed by the propaganda windfall our failure to ratify the convention has already afforded our international opponents.”
Based on this (and lots of other advice), the Reagan Administration eventually supported ratification of the Genocide Convention. And the advice, which is sensible and pragmatic, takes seriously potential objections to an international treaty while at the same time recognizing the foreign relations importance of participating in such international relations regimes. Sounds pretty sensible to me, and even more evidence that Roberts opponents have almost nothing solid to support their opposition to his confirmation.
Mr. Roberts’s “not unfounded” objection to the ICJ jurisdiction clause of the Genocide Convention (Article 9) may have played an important part in the ultimate decision of the United States to eviscerate the Convention. The United States ratified it with the specific reservation that “before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case.”
As I wrote at the time and still believe, our reservation went to the nature and purpose of the Convention and therefore should
have operated to take us out of the Convention. Article 9 is the ONLY provision that has any teeth. Instead, we got away with a public relations stunt that rendered our commitment to the Genocide Convention a sham.
Re: Professor D’Amato’s point. Given the current crop on the ICJ, won’t they just ignore any US reservation that limits their jurisdiction? That seems to be par for the course with them.
Incidentally, it is this type of behaviour that guts any legitimacy the ICJ and international law may have, i.e., the consent of states.
Prof. D’Amato:
Isn’t it a mistake to focus too much on the ICJ’s role with respect to the success of the Genocide Convention? Doesn’t the 1987 Genocide Convention Implementation Act mean anything? See:
http://www.religioustolerance.org/genocide.htm